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Dismissal With Prejudice for Failure to Prosecute

Wilson, et al., v. Merriweather, et al., [Ms. 2180737, Jan. 10, 2020] __ So. 3d __ (Ala. Civ. App. 2020). The court (Thompson, P.J.; and Moore, Donaldson, Edwards, and Hanson, JJ., concur) unanimously reverses the Talladega Circuit Court’s order dismissing with prejudice a quiet title action filed by various plaintiffs.

Over the course of several years, the plaintiffs amended their complaint a number of times adding additional defendants. The court noted that in dismissing the case with prejudice, the trial court “cited the plaintiffs’ failure ‘to serve all party defendants’ as the reason for its dismissal.” Ms. *11. Because the case action summary reflected that the plaintiffs had attempted to perfect service on the nineteen defendants who lived throughout the country, the failure to serve all party defendants did not justify the prejudicial dismissal. Ms. *11. The court explained that because of the plaintiffs’ responding to numerous motions to dismiss and taking part in various hearings “a lack of activity could not have been a proper basis for the trial court’s dismissal of the action. Accordingly, there had to be a clear record of delay, willful default, or contumacious conduct by the plaintiffs to warrant the dismissal.” Ms. *10-11 (internal quotations marks omitted).

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