Rule 41(B) Involuntary Dismissal For Failure To Prosecute: Curry V. Miller


Curry v. Miller, [Ms. 1170176, Mar. 16, 2018] __ So. 3d __ (Ala. 2018). The Court (Sellers, J., and Stuart, C.J., and Bolin, Shaw, and Wise, JJ., concur) affirms the Houston Circuit Court's order of involuntary dismissal pursuant to Rule 41(b), Ala. R. Civ. P., for failure to prosecute.

The standard of review is as follows:

"Ala. R. Civ. P. 41(b) provides for the involuntary dismissal of an action upon 'failure of the plaintiff to prosecute or to comply with [the Rules of Civil Procedure] or any order of [the] court.' Although dismissal for failure to comply with a court order is a 'harsh sanction,' it is warranted where there is a 'clear record of delay, willful default or contumacious conduct by the plaintiff.' Selby v. Money 403 So. 2d 218, 220 (Ala. 1981). Because the trial judge is in the best position to assess the conduct of the plaintiff and the degree of noncompliance, his decision to grant a motion to dismiss for failure to prosecute will be accorded considerable weight by a reviewing court. Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 947 (9th Cir. 1976); Von Poppenheim v. Portland Boxing & Wrestling Comm'n, 442 F.2d 1047, 1051 (9th Cir. 1971), cert. denied, 404 U.S. 1039, 92 S.Ct. 715, 30 L.Ed.2d 731 (1972). Therefore we will reverse that decision only upon a showing of abuse of discretion. Selby, at 220; Smith v. Wilcox County Bd. of Educ., 365 So. 2d 659 (Ala. 1978)."

Jones v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 604 So. 2d 332, 341 (Ala. 1991). Moreover, "'[w]illful' is used in contradistinction to accidental or involuntary noncompliance. No wrongful motive or intent is necessary to show willful conduct." Selby v. Money, 403 So. 2d 218, 221 (Ala. 1981).

Ms. *6-7. Because the record contained evidence from which the trial court could conclude that the plaintiff wilfully disregarded an order directing him to retain counsel by a specified date, and that the plaintiff's only response was that he did not "recall" receiving that order, the trial court did not exceed its discretion in concluding that the plaintiff's failure to prosecute his lawsuit was "willful" for purposes of a Rule 41(b) involuntary dismissal.

Share To: