                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2009-IA-02022-SCT

JACKSON PUBLIC SCHOOL DISTRICT,
MARILYN MINTER, MICHELLE KING, AND THE
CITY OF JACKSON

v.

LATISHA HEAD, A MINOR, BY AND THROUGH
SHIRLEY RUSSELL, HER MOTHER AND NEXT
FRIEND; ASHLEY MCCOY, A MINOR, BY AND
THROUGH SHIRLEY MCCOY, HER MOTHER
AND NEXT FRIEND; AND SHIRLEY RUSSELL,
INDIVIDUALLY


DATE OF JUDGMENT:                        12/08/2009
TRIAL JUDGE:                             HON. TOMIE T. GREEN
COURT FROM WHICH APPEALED:               HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                BETTY A. MALLETT
                                         JOANNE NELSON SHEPHERD
                                         PIETER JOHN TEEUWISSEN
                                         CLAIRE BARKER HAWKINS
ATTORNEYS FOR APPELLEES:                 LYDIA ROBERTA BLACKMON
                                         DEBORAH MCDONALD
NATURE OF THE CASE:                      CIVIL - OTHER
DISPOSITION:                             AFFIRMED AND REMANDED - 08/11/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




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

      CHANDLER, JUSTICE, FOR THE COURT:

¶1.   Latisha Head and Ashley McCoy, through each of their mothers, Shirley Russell and

Shirley McCoy (collectively, “Head”), filed a complaint on December 13, 2004, against the
Jackson Public School District (JPS), the City of Jackson (the City), the Jackson Police

Department (JPD), Clayton Johnson, Marilyn Minter, and Michelle King (collectively,

“JPS”). The complaint alleged assault and battery against Johnson and several negligence

claims against each of the defendants, stemming from an incident at Watkins Elementary

School on May 16, 2003, between Head and Johnson. The complaint was then amended

twice. The last action of record by Head was Head’s response to requests for admission filed

on August 15, 2005. JPS filed a motion to dismiss for failure to prosecute on December 10,

2008. The circuit court denied the motion to dismiss. From this denial, JPS appealed to this

Court, and we granted interlocutory appeal.

                                          FACTS

¶2.    The facts of this case were never fully developed and are disputed. On May 16, 2003,

LaTisha Head, a twelve-year-old fourth-grade student, was watching a video in her

classroom at Watkins Elementary School. Clayton Johnson, an off-duty Jackson police

officer, entered Head’s classroom, and according to Head and her friend Ashley McCoy,

Johnson instructed the two girls to get out of their seats and follow him into the hallway.

Marilyn Minter, the teacher of the two girls, was in the classroom when this occurred.

¶3.    According to Head and McCoy, Johnson threatened to take the two girls to a detention

center for laughing and being disruptive. When the girls did not stop laughing, Johnson

ordered the two girls into the hallway. Head and McCoy contend that Johnson then threw

Head against the wall, pinned her to the floor, and grabbed her by her jacket to pull her off

the floor. Johnson alleges that Head first “jumped on him,” and he took the two girls into the




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hallway only to correct their disruptive behavior. McCoy was a bystander to this hallway

encounter.

¶4.    Johnson then allegedly escorted Head and McCoy to the office of the principal,

Michelle King. The secretary questioned why Head was crying, but Head did not respond.

After briefly leaving Head and McCoy in King’s office, Johnson then allegedly escorted

Head and McCoy to the school auditorium. In the auditorium, Head and McCoy contend that

another Jackson police officer threatened to take them to a detention center. When this

officer left, Head and McCoy contend Johnson made both girls write their names, addresses,

and telephone numbers on a sheet of paper. Head and McCoy contend that Johnson then

said, “This never happened. Now give me a hug.” Johnson then escorted Head and McCoy

back to their classroom.

¶5.    Head filed a complaint on December 13, 2004. Head later amended the complaint,

and on August 15, 2005, filed a response to requests for admission. On December 10, 2008,

three years and almost eight months later, JPS, joined by Minter and King, filed a motion to

dismiss for failure to prosecute. Barring the response to requests for admission, Head has

no recorded activity since amending the complaint. On June 2, 2006, JPS filed its first set

of interrogatories and requests for production of documents. Notice of service was filed June

5, 2006, and after this date, JPS has no recorded action of record.

¶6.    On February 25, 2009, in response to JPS’s motion to dismiss for failure to prosecute,

Head filed a response claiming personal difficulties and a heavy workload. On June 10,

2009, Head’s counsel wrote a letter to JPS claiming she was unavailable “the first three

weeks of June, the last three weeks of July, and the first two weeks of August,” for a hearing


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on JPS’s motion to dismiss. In a letter dated July 21, 2009, JPS notified Head that the

hearing on the motion to dismiss for failure to prosecute was set for October 20, 2009, and

asked for a prompt response from Head. Head responded on October 8, 2009, with a letter

stating a continuance would be filed, under the mistaken impression the hearing was

scheduled for October 2, 2009. On October 9, 2009, Head filed a motion to continue or

reschedule the hearing on the motion to dismiss. This motion was granted.

¶7.    On November 24, 2009, Head filed a motion to compel discovery. In Head’s

supplemental response objecting to JPS’s motion to dismiss, Head asserts the discovery

requests sent by JPS in 2006 were lost, and JPS would not deliver documents unless ordered

by the court.

¶8.    On December 9, 2009, the circuit court denied JPS’s motion to dismiss for failure to

prosecute and ordered Head to pay for the reproduction of the lost discovery documents. On

February 10, 2010, JPS’s interlocutory appeal to the Supreme Court was granted.

Depositions of the parties were scheduled to take place on February 23, 2010, but, due to the

interlocutory appeal, Head filed a motion to stay the proceedings the day before the

depositions were to occur. The motion to stay the proceedings was granted on February 23,

2010, and proceedings will be stayed until this Court rules on the interlocutory appeal.

¶9.   As of February 2010, Ashley and Shirley McCoy were living in St. Louis, Missouri.

Dr. Wood Hiatt, the psychiatrist who met with Ashley McCoy and Latisha Head shortly after

the incident, died on March 25, 2010.

                               STANDARD OF REVIEW




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¶10.   “When examining a trial court’s dismissal of a case for want of prosecution, this Court

will affirm the trial court’s findings of fact, unless the findings are manifestly wrong.” Barry

v. Reeves, 47 So. 3d 689, 693 (Miss. 2010) (citing Watson v. Lillard, 493 So. 2d 1277, 1279

(Miss. 1986)). A trial court’s ruling on a dismissal for failure to prosecute will be reviewed

for abuse of discretion. Hill v. Ramsey, 3 So. 3d 120, 122 (Miss. 2009).

¶11.   A trial court may dismiss for want of prosecution to control its docket and expedite

justice. Id. Dismissal for failure to prosecute pursuant to Mississippi Rule of Civil Procedure

41(b) is “reserved for the most egregious cases,” due to the “extreme and harsh sanction that

deprives a litigant of the opportunity to pursue his claim.” Hillman v. Weatherly, 14 So. 3d

721, 726 (Miss. 2009) (quoting Wallace v. Jones, 572 So. 2d 371, 376 (Miss. 1990)).

Dismissals for want of prosecution typically are affirmed only when there is a clear record of

delay or contumacious conduct enhanced by at least one aggravating factor, and lesser

sanctions would be ineffective. Am. Tel. & Tel. Co. v. Days Inn of Winona, 720 So. 2d 178,

181 (Miss. 1998) (citing Rogers v. Kroger Co., 669 F. 2d 317, 320 (5th Cir. 1982)).

                                       DISCUSSION

Whether the Trial Court Abused its Discretion in Denying Jackson Public School
District’s Motion to Dismiss Pursuant to Rule 41(b) of the Mississippi Rules of Civil
Procedure.

       A.     Whether the Trial Court Properly Weighed Relevant Factors in
              Determining if the Rule 41(b) Motion Should be Denied.

¶12.   This Court has set forth factors to be weighed in determining whether a Rule 41(b)

ruling should be affirmed: (1) whether there was a clear record of delay or contumacious

conduct by the plaintiff; (2) whether lesser sanctions may have better served the interests of



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justice; and (3) the existence of other aggravating factors. Cox v. Cox, 976 So. 2d 869, 874

(Miss. 2008) (citing Am. Tel. & Tel. Co., 720 So. 2d at 181) (citing Rogers, 669 F.2d at 320).

¶13.   This Court will consider the facts of each particular case when determining whether

a dismissal for failure to prosecute is warranted. Am. Tel. & Tel. Co., 720 So. 2d at 181.

Judge Green considered the record of delay and level of actual prejudice to JPS. Ultimately,

she ordered Head to pay the cost of discovery reproduction. “The law favors trial of issues

on the merits, and dismissals for want of prosecution are therefore employed reluctantly.”

Am. Tel. & Tel. Co., 720 So. 2d at 180 (citing Watson, 493 So. 2d at 1278). Judge Green did

not abuse her discretion in denying the defendant’s motion to dismiss.

       B.        Whether There is a Clear Record of Delay.

¶14.   There has been a clear record of delay; however, as Judge Green notes, the delay is

excusable. Head filed a complaint on December 13, 2004, and amended this complaint on

March 31, 2005, and April 12, 2005. On August 15, 2005, Head filed responses to JPS’s

requests for admission. After this date, the record is largely silent as to any action in pursuit

of this claim.

¶15.   However, in its response to the motion to dismiss filed by JPS, Head explains the

delay, stating illness and personal problems of counsel. In Watson, this Court stated it was

“loath to presume that any Mississippi trial judge would allow a serious action to be lost

because of delays attributable solely to plaintiff’s illness or infirmity.” Watson, 493 So. 2d

at 1279-80. Also, as stated by this Court in Barry, “the mere fact that delay occurs in the

prosecution of a case is not sufficient to warrant dismissal for want of prosecution. It must

be clear from the record that the delay was the result of the plaintiff’s failure to prosecute the

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claim, rather than extrinsic factors beyond the control of the plaintiff.” Barry, 47 So. 3d at

694; see M.R.C.P. 41(b).

¶16.   JPS argues that Head was dilatory in being unavailable for several months when JPS

was seeking to hold a hearing on its motion to dismiss. In actuality, JPS and counsel for Head

could not agree on a hearing date, and JPS ultimately set the hearing date. Head’s counsel did

not purposely schedule a conflict on the date of a hearing; a conflict already existed when

counsel was informed of the hearing date.

       C.     Whether Lesser Sanctions Than Dismissal Will Serve the Interests of
              Justice.

¶17.   This Court will impose lesser sanctions if they will better serve the interests of justice.

Am. Tel. & Tel. Co., 720 So. 2d at 181. “Lesser sanctions include ‘fines, costs, or damages

against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal,

dismissal without prejudice, and explicit warnings.’” Cox, 976 So. 2d at 876 (citing Am. Tel.

& Tel. Co., 720 So. 2d at 181-82) (quoting Wallace, 572 So. 2d at 377).

¶18.   Judge Green considered lesser sanctions and ultimately determined Head should pay

the cost incurred by JPS in reproducing its discovery documents. But, Judge Green found no

other appropriate sanction. JPS was well aware that Head had lost the original discovery

documents, but when Head asked for JPS to reproduce the documents, JPS refused. JPS states

that this Court has dismissed a case for a span of inactivity from August 2005 to March 2007.

Hill, 3 So. 3d 120. However, in Hill, the case was dismissed without prejudice. Hill, 3 So.

3d at 123. Here, JPS is seeking a Rule 41(b) dismissal with prejudice. This Court, in Hill,

indicated it might not have affirmed a dismissal with prejudice. Id.; see M.R.C.P. 41(b).



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¶19.   JPS also cites Hillman v. Weatherly for the proposition that delay alone is sufficient

to warrant dismissal. Hillman, 14 So. 3d at 721. However, in Hillman, the trial court

considered lesser sanctions and found the sanctions would not be sufficient to cure prejudice

to the defendant. Hillman, 14 So. 3d at 728. And, in Hillman, the plaintiff’s conduct was

found to be intentional and egregious. Id. The plaintiff failed to respond to two motions to

dismiss, and this Court held that the plaintiff had obstructed discovery. Id. Here, no actual

prejudice has been shown; there is only speculation of memory loss and inconvenience in

locating witnesses. The conduct of the plaintiffs has not been shown to be intentional.

¶20.   JPS cites Illinois Central Railroad Company v. Moore for the proposition that this

Court will, on rare occasion, reverse the decision of the trial judge for abusing its discretion

in denying a motion to dismiss. Ill. Cent. R. R. Co. v. Moore, 994 So. 2d 723 (Miss. 2008).

In Moore, Illinois Central filed a motion to dismiss pursuant to Mississippi Rule of Civil

Procedure 41(d), seeking a dismissal without prejudice, because the plaintiff had failed to take

any action of record for more than seven years. Id. at 729. And, in Moore, the clerk had sent

out four separate motions to dismiss for want of prosecution before the motion to dismiss was

filed. Moore, 994 So. 2d at 725. Here, the clerk has made no such motion, and the record of

inactivity is only half of the span referenced in Moore. Judge Green considered lesser

sanctions and determined the imposition of costs for reproduction of discovery were fair, but

no lesser sanctions would be appropriate. This Court agrees.

       D.     Whether Aggravating Factors are Present, Resulting in Prejudice to
              JPS, Minter, and King.




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¶21.   The aggravating factors to be considered include: (1) “the extent to which the plaintiff,

as distinguished from his counsel, was personally responsible for the delay,” (2) “the degree

of actual prejudice to the defendant,” and (3) “whether the delay was the result of intentional

conduct.” Hillman, 14 So. 3d at 728 (citing Am. Tel. & Tel. Co., 720 So. 2d at 181) (quoting

Rogers, 669 F. 2d at 320).

       1)     Plaintiff’s personal responsibility for the delay

¶22.   Although JPS suggests Head personally was responsible for the delay, there is nothing

in the record to show this. Counsel for Head admitted the delay was attributable to medical

problems and personal problems within counsel’s office. Judge Green considered the delay,

and because it could be attributed to counsel, and not Head, she found excusable delay.

       2)     The degree of actual prejudice to the defendant

¶23.   JPS argues the case should be dismissed, because memories have faded and witnesses

may not be available. However, there is no specific proof that memories have faded. JPS also

contends that a few faculty members of the elementary school have retired or left the school

district, but fails to show how these facts prejudice JPS. Next, JPS contends that Dr. Hiatt

Wood, a potential expert for Head, has died. However, Hiatt only recently passed away, and

JPS had ample time to depose him, but never attempted to do so. Although JPS relies on the

possibility of faded memories to show actual prejudice, the record is devoid of any finding

that JPS has contacted a witness and actually found a faded memory. Although prejudice can

be presumed for unreasonable delay, the preference for a decision on the merits “must be

weighed against any presumed prejudice to the defendant and the court may decide to excuse

plaintiff’s lack of diligence in the absence of any actual prejudice to the defendant.” Cox, 976


                                               9
So. 2d at 879 (citing Rogers, 669 F.2d at 322 n.7) (quoting 9 C. Wright & A. Miller, Federal

Practice and Procedure: Civil § 2370, at 216-17 (1971)).

       3)     Whether the delay was the result of intentional conduct.

¶24.   The record lacks any proof the delay was intentional. On the contrary, Head’s counsel

submits illness and personal problems as reasons for the delay.

                                       CONCLUSION

¶25.   Because there is no record of inexcusable delay, and JPS has suffered no actual

prejudice, and because costs will be paid for reproduction of discovery documents, the case

need not be dismissed to better serve the interests of justice. For these reasons, the ruling of

the Hind’s County Circuit Court is affirmed, and the case is remanded to the trial court for

further proceedings consistent with this opinion.

¶26.   AFFIRMED AND REMANDED.

    WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH,
KITCHENS, PIERCE AND KING, JJ., CONCUR. LAMAR, J., NOT
PARTICIPATING.




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