                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2012-IA-01686-SCT

ENTERGY MISSISSIPPI, INC. AND JAY B.
COLEMAN, JR.

v.

KAREN RICHARDSON


DATE OF JUDGMENT:                           09/24/2012
TRIAL JUDGE:                                HON. TOMIE T. GREEN
TRIAL COURT ATTORNEYS:                      CHARLES E. ROSS
                                            SCOTT J. PINTARD
COURT FROM WHICH APPEALED:                  HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                   JAMES EARL GRAVES, III
                                            CHARLES EDWIN ROSS
                                            JAMES W. SNIDER, JR.
ATTORNEYS FOR APPELLEE:                     EVERETT T. SANDERS
                                            SCOTT J. PINTARD
                                            CLAUDE PINTARD
NATURE OF THE CASE:                         CIVIL - PERSONAL INJURY
DISPOSITION:                                REVERSED AND RENDERED - 03/20/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE DICKINSON, P.J., LAMAR AND CHANDLER, JJ.

       CHANDLER, JUSTICE, FOR THE COURT:

¶1.    This is a direct appeal from the Hinds County Circuit Court. The trial court granted

plaintiff Karen Richardson’s motion to reinstate a negligence action arising out of a 2001

automobile accident involving a truck owned by defendant Entergy Mississippi, Inc.,

(“Entergy”). Richardson’s action had been dismissed for failure to prosecute. We find that

the trial court erred in granting the motion to reinstate. While the statute of limitations did
not operate to preclude an evaluation of the merits for equitable relief under Mississippi Rule

of Civil Procedure 60(b), no valid Rule 60(b) grounds existed for granting relief from the

dismissal of the action.

                           FACTS AND PROCEEDINGS BELOW

¶2.    In February 2001, Karen Richardson was in an automobile accident that occurred

when a truck owned by Entergy allegedly struck her vehicle. In February 2004, Richardson

filed a tort action against Entergy and the driver of the truck. The parties conducted

discovery, including depositions. In 2012, the court ordered a docket call and sent notice that

“cases that have not had any ‘substantial activity’ for twelve months or more will be

dismissed for failure to prosecute.” Entergy’s attorney appeared at the docket call. Neither

Richardson nor her lawyer appeared. The court dismissed the case for lack of prosecution,

finding that there had been no substantial activity in the case since 2006. The dismissal was

not the result of a motion to dismiss by Entergy.

¶3.    More than ten days later, Richardson filed a motion to reinstate the case, arguing that

the case was ready for trial, that filing a new complaint would require both parties to invest

additional time and expenses, and that if not granted, “[p]laintiff may very well be confronted

with a statute of limitations issue.” The court granted the motion to reinstate, stating,

       . . . the Court finds that both parties have failed to request a trial date and file
       agreed scheduling orders as required by this Court. The Court has had at least
       three docket calls since the action was filed and no motion to dismiss for
       failure to prosecute has been initiated at or prior to docket call. As such, the
       court finds all parties to have been dilatory in resolving this case . . . .




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¶4.    On appeal, Entergy argues that reinstatement of the case was improper because no

valid Rule 60(b) grounds for relief existed, and that Rule 60(b) was neither mentioned in the

motion nor discussed in the order to reinstate. Entergy also argues that the motion to reinstate

was time-barred because the statute of limitations ran after the claim was dismissed without

prejudice for failure to prosecute. Richardson argues that the circuit court acted within the

discretion provided by Rule 60(b)(6) in reinstating the case.

                                       DISCUSSION

       I.     Richardson’s motion to reinstate was not barred by the statute of
              limitations.

¶5.    We treat Richardson’s motion to reinstate as a motion for relief from a final judgment

under Rule 60(b). Motions served after ten days of the rendition of a judgment typically are

construed as Rule 60(b) motions. See Carlisle v. Allen, 40 So. 3d 1252, 1260 (Miss. 2010);

Cannon v. Cannon, 571 So. 2d 976, 978 (Miss. 1990); Bundick v. Bay City Indep. Sch.

Dist., 192 F.3d 126 (5th Cir. 1999). Rule 60(b) provides:

       On motion and upon such terms as are just, the court may relieve a party or his
       legal representative from a final judgment, order, or proceeding for the
       following reasons: (1) fraud, misrepresentation, or other misconduct of an
       adverse party; (2) accident or mistake; (3) newly discovered evidence which
       by due diligence could not have been discovered in time to move for a new
       trial under Rule 59(b); (4) the judgment is void; (5) the judgment has been
       reversed or otherwise vacated, or it is no longer equitable that the judgment
       should have prospective application; (6) any other reason justifying relief
       from the judgment.

       The motion shall be made within a reasonable time, and for reasons (1),
       (2) and (3) not more than six months after the judgment, order, or
       proceeding was entered or taken. . . . This rule does not limit the power of


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         a court to entertain an independent action to relieve a party from a judgment,
         order, or proceeding, or to set aside a judgment for fraud upon the court.

M.R.C.P. 60(b) (emphasis added).

¶6.      Entergy argues that Richardson’s motion to reinstate was barred by the statute of

limitations under Knight v. Knight, 85 So. 3d 832, 838 (Miss. 2012), in which this Court held

that the statute of limitations is not tolled when a cause of action is dismissed without

prejudice for lack of prosecution. But our holding in Knight was decided in the context of

a new action filed after dismissal for lack of prosecution, and the Knight opinion explicitly

noted that the rule might not result in barring a claim in certain equitable circumstances.1

While a Rule 60(b) motion is subject to the limitations provided by the language of Rule 60

itself (“the motion shall be made within a reasonable time, and for reasons (1), (2) and (3)

not more than six months after the judgment . . .”), the fact that the limitations period may

have expired upon dismissal of a claim will not bar a motion for reinstatement under Rule

60(b).

¶7.      In Knight we adopted the rule from and quoted extensively King v. Jujan:

         A party who has slept on his rights should not be permitted to harass the
         opposing party with a pending action for an unreasonable time. Rule 41(e)
         specifically addresses this concern. Holding that a Rule 41(b) dismissal
         without prejudice tolls the statute for the time the case was pending could


         1
         We stated that “this holding, however, does not mean that all cases dismissed
without prejudice after the statute of limitations has expired cannot be refiled. Some will be
revived by the savings statute, equitable tolling, or otherwise. Our narrow holding here is
merely that dismissal without prejudice for want of prosecution does not toll the statute of
limitations.” Id. at 838.


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       conceivably extend the time for bringing the suit indefinitely; the plaintiff
       could continuously refile but never act to bring the case to its conclusion.
       Furthermore, the courts should not distinguish between a plaintiff who takes
       no action before the limitations period expires and a plaintiff who files a
       complaint before the period expires but who thereafter takes no action. . . .

Knight, 85 So. 3d at 837 (quoting King v. Lujan, 646 P.2d 1243,1245 (N.M. 1982)).

¶8.    Unlike in Knight, no new action was filed in this case. Rather, Richardson filed a

motion to reinstate which we treat as a motion under Rule 60(b) since it was made more than

ten days after the order dismissing the case.2 A subsequent New Mexico case in King’s

progeny addresses the Rule 60(b) context we have here. In Meiboom v. Watson, 994 P. 2d

1154 (N.M. 2000), the lower court granted a motion to reinstate after dismissal for failure to

prosecute despite the district court’s characterization of the motion as “the barest motion I’ve

seen in ten years on the bench.” Id. at 538. The New Mexico Court of Appeals found that,

based on King, the lower court lacked jurisdiction to grant the reinstatement because the

motion to reinstate was time-barred. Id. at 539. Although agreeing that the motion to reinstate

should not have been granted, the New Mexico Supreme Court rejected the statute-of-

limitations argument, saying that

       If we were to agree with the district court’s interpretation that King was in fact
       a Rule 1-060(B)(6) case, it would serve to obviate the underlying purposes of
       Rule 1-060(B)(6). It would render nonexistent the ability of a court’s
       equitable powers to grant relief from final judgement in Rule 1-060(B)(6)
       cases after the statute of limitations has run. 3



       2
           Motions filed within ten days are treated under Rule 59.
       3
           New Mexico’s Rule 1-060(B) is comparable to Mississippi’s Rule 60(b).

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Id. at 540 (emphasis added.)

¶9.    The same principle applies here where we mark the procedural distinction between

the filing of a new complaint and filing a motion to reinstate under Rule 60(b). Subject to the

limitations imposed by Rule 60(b) itself, a motion to reinstate on Rule 60(b) grounds will be

evaluated on the merits and is not automatically precluded by our holding in Knight.

       II.    Whether valid Rule 60(b) grounds for relief existed to justify
              granting the plaintiff’s motion to reinstate.

¶10.   Entergy argues that, because Richardson failed to argue or established any Rule 60(b)

grounds for relief, the circuit court improperly granted the motion to reinstate. This Court has

held that “Rule 60(b) provides for extraordinary relief which may be granted only upon an

adequate showing of exceptional circumstances, and that neither ignorance nor carelessness

on the part of an attorney will provide grounds for relief.” Stringfellow v. Stringfellow, 451

So. 2d 219, 221 (Miss. 1984). Rule 60(b) “is not an escape hatch for litigants who have

procedural opportunities afforded under other rules and who without cause failed to pursue

those procedural remedies.” Doll v. BSL, Inc., 41 So. 3d 664, 669 (Miss. 2010); Bruce v.

Bruce, 587 So. 2d 898, 904 (Miss. 1991). Rule 60(b)(6)’s “catch-all” provision does not

grant trial judges blanket discretion to reinstate cases. This Court has held that “for a party

to be granted relief under Rule 60(b)(6), he must demonstrate extraordinary circumstances

which prevented or rendered him unable to prosecute his case.” Regan v. South Cent. Reg’l

Med. Ctr., 47 So. 3d 651, 655 (Miss 2010) (quoting Cmty. Dental Servs. v. Tani, 282 F. 3d




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1164, 1168 (9th Cir. 2002)). “Rule 60(b) motions should be denied where they are merely

an attempt to relitigate the case.” Stringfellow, 451 So. 2d at 221.

¶11.   Richardson’s motion to reinstate merely argued, in essence, that it would be

inconvenient, expensive, and time-consuming to file a new complaint against Entergy and

that Richardson “may very well be faced with a statute of limitations issue.” The order

granting the motion to reinstate in essence finds that all parties involved were “dilatory” and,

therefore, the case should go forward. None of the above reasons argued or found constitute

valid Rule 60(b) grounds for relief. There is no allegation of fraud or misconduct, accident

or mistake, new evidence, or a void judgment. We find, and the parties appear to agree in

briefing, that Rule 60(b)(6) is the only possible enumerated ground for relief that could apply

to Richardson’s motion to reinstate. But no additional “extraordinary” reasons for granting

relief are presented. And while the potential running of the statute of limitations on the

underlying claim demonstrates prejudice to the moving party, that in itself is insufficient

grounds for granting reinstatement.

¶12.   Richardson argues that, because the dismissal was for the purpose of docket control,

and it did not come about as the result of a defense motion to dismiss, that the trial court was

acting appropriately within its discretion in reinstating the case. To support her argument that

“the court apparently determined, after balancing the competing policy consideration[s], that

[Richardson] deserved her day in [c]ourt,” Richardson depends on Cucos, Inc., v. McDaniel,

938 So. 2d 238 (Miss 2006). In Cucos, this Court held that “[i]t is well established in our

jurisprudence that the right result reached for the wrong reason will not be disturbed on

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appeal” where the movant incorrectly identified “the subsection for which relief was

available and no identification of the appropriate prong of Rule 60(b) [was made] by the trial

court.” Id. at 240. But, while it is accurate that Rule 60(b) relief can be granted when Rule

60(b) grounds are presented but not accurately labeled, here, no Rule 60(b) grounds for relief

were presented in the motion to reinstate or identified in the order granting the motion. The

case was appropriately dismissed after six years of inactivity, multiple docket calls, the

plaintiff’s failure to appear after clear notice from the circuit court that the case would be

dismissed absent activity moving the case forward, and no cognizable grounds for

reinstatement were shown.

¶13.   Richardson also argues that Entergy has not been prejudiced by the six-year failure

to prosecute. This is not a valid ground for relief from a final judgment of dismissal for

failure to prosecute. “Actual prejudice is not a requirement for dismissal under Rule 41(b).”

Holder v. Orange Grove Med. Specialties, P.A., 54 So. 3d 192, 200 (Miss 2010). Further,

“prejudice may be presumed from unreasonable delay.” Id. (quoting Cox v. Cox, 976 So. 2d

869, 879 (Miss. 2008)).

                                     CONCLUSION

¶14.   Even though Richardson’s Rule 60(b) motion to reinstate was not barred by the statute

of limitations, the trial court improperly granted the motion because no valid grounds for

relief existed. The case was appropriately dismissed for failure to prosecute and no

extraordinary circumstances were present to justify reinstatement. The judgment of the Hinds



                                              8
County Circuit Court granting reinstatement is reversed and judgment is entered here,

dismissing the case without prejudice.


¶15. REVERSED AND RENDERED.

     WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS,
PIERCE, KING AND COLEMAN JJ., CONCUR.




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