Dimon v. Mansy
In Dimon v. Mansy, 198 W.Va. 40, 479 S.E.2d 339 (1996), the Court discussed motions to dismiss for failure to prosecute.
The Court held that due process of law requires that specific procedures be followed by a trial court before it can dismiss a plaintiff's action for failure to prosecute.
"Before a court may dismiss an action under Rule 41(b), notice and an opportunity to be heard must be given to all parties of record. To the extent that Brent v. Board of Trustees of Davis & Elkins College, 173 W.Va. 36, 311 S.E.2d 153 (1983), and any of our previous holdings differ with this ruling, they are expressly overruled."
The Court listed the requirements that must be met before a case can be dismissed under Rule 41(b) for failure to prosecute.
In carrying out the notice and opportunity to be heard requirements, before a case may be dismissed under Rule 41(b), the following guidelines should be followed:
First, when a circuit court is contemplating dismissing an action under Rule 41(b), the court must first send a notice of its intent to do so to all counsel of record and to any parties who have appeared and do not have counsel of record. . . .
Second, any party opposing such motion shall serve upon the court and the opposing counsel a response to such motion within fifteen days. . . .
Third, if no motion is made opposing dismissal, . . . the court may decide the issue upon the existing record. . . .
Fourth, the plaintiff bears the burden of going forward with evidence as to good cause for not dismissing the action; if the plaintiff does come forward with good cause, the burden then shifts to the defendant to show substantial prejudice to it in allowing the case to proceed; if the defendant does show substantial prejudice, then the burden of production shifts to the plaintiff to establish that the proffered good cause outweighs the prejudice to the defendant.
Fifth, the court, in weighing the evidence of good cause and substantial prejudice, should also consider (1) the actual amount of time involved in the dormancy of the case;
(2) whether the plaintiff made any inquiries to his or her counsel about the status of the case during the period of dormancy;
(3) other relevant factors bearing on good cause and substantial prejudice.
Sixth, if a motion opposing dismissal has been served, the court shall make written findings, and issue a written order . . . appealable to this Court as a final order. . . . Seventh, if the plaintiff does not prosecute an appeal of an adverse decision to this Court within the period of time provided by our rules and statutes, the plaintiff may proceed under Rule 41(b)'s three-term rule to seek reinstatement of the case by the circuit court. . . . Eighth, should a plaintiff seek reinstatement under Rule 41(b), the burden of going forward with the evidence and the burden of persuasion shall be the same as if the plaintiff had responded to the court's initial notice, and a ruling on reinstatement shall be appealable as previously provided by our rule.
The Court discussed at length the provisions relating to the dismissal and reinstatement of civil actions for failure to prosecute.
In that case, the Court indicated that dismissal for failure to prosecute is a harsh sanction and that because of its harshness, dismissal should be considered appropriate only in flagrant cases.