American Tel & Tel Co. v. Days Inn

In American Tel & Tel Co. v. Days Inn, 720 So. 2d 178 (P13) (Miss. 1998), the Mississippi Supreme Court, quoting Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir. 1982), held that "Rule 41(b) dismissals with prejudice will be affirmed only upon a showing of a clear record of delay or contumacious conduct by the plaintiff and where lesser sanctions will not serve the best interests of justice." The court in American Tel. & Tel. Co. further held: While the requirements of a clear record of delay by the plaintiff and futile lesser sanctions have been articulated the most consistently, several other factors have been identified as aggravating factors. Specifically, these include the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay, the degree of actual prejudice to the defendant, and whether the delay was the result of intentional conduct. Id.