                          IN THE SUPREME COURT OF MISSISSIPPI
                                   NO. 97-CA-00411-SCT
AMERICAN TELEPHONE AND TELEGRAPH
COMPANY
v.
DAYS INN OF WINONA, TAC GOPAL AND LEROY
ALLEN

DATE OF JUDGMENT:                                10/18/96
TRIAL JUDGE:                                     HON. JOSEPH H. LOPER, JR.
COURT FROM WHICH APPEALED:                       MONTGOMERY COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                         THOMAS H. PEARSON
                                                 WILLIAM F. SELPH, III
ATTORNEY FOR APPELLEES:                          SUZANNE N. SAUNDERS
NATURE OF THE CASE:                              CIVIL - PROPERTY DAMAGE
DISPOSITION:                                     REVERSED AND REMANDED - 8/13/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                  9/3/98




     BEFORE PRATHER, C.J., BANKS AND SMITH, JJ.


     BANKS, JUSTICE, FOR THE COURT:


¶1. This case is before the Court on appeal from the dismissal of the plaintiff's case with prejudice for
failure to prosecute, pursuant to Miss. R. Civ. P. 41(b). We conclude that while the conduct of
plaintiff's counsel was less than diligent, it does not represent the contemptuous resistance to the
court's authority required under the rules. Moreover, there is no indication that the lower court
attempted to expedite the proceedings through the use of lesser sanctions before invoking the harsh
measure of dismissing the plaintiff's case with prejudice. Accordingly, we reverse and remand for
trial.

                                                    I.

¶2. On August 5, 1994, American Telephone and Telegraph Company (AT&T) filed a complaint in
the Circuit Court of Montgomery County against Days Inn of Winona, Tac Gopal and Leroy Allen.
AT&T sought $336,278.40 in damages caused by the defendants' alleged negligence in cutting an
underground telephone cable. Answers were thereafter filed and discovery proceeded. On March 6,
1995, the circuit court notified counsel for all parties that the trial docket for the April term of court
would be called on March 21, 1995. On March 17, 1995, defendants Days Inn and Tac Gopal filed a
Motion to Extend Discovery until June 14, 1995. This motion was granted on May 1, 1995, although
neither side engaged in any discovery after January of 1995.

¶3. In a letter to the clerk of the court dated March 15, 1996, counsel for defendants Days Inn and
Tac Gopal informed the court that she would be unable to attend the trial docket for the April term of
1996, and requested that the court move the case to the October 1996 term. On September 11, 1996,
the court notified counsel for all parties that the trial docket for the October term of court would be
called on September 23, 1996. Counsel for plaintiff did not appear at the docket setting, although
counsel for defendants was present.

¶4. On the same day, September 23, 1996, defendants Days Inn and Tac Gopal filed a Motion to
Dismiss Stale Case for Failure to Prosecute. The defendants argued that the last action in the case
was the order extending discovery filed by the court on May 1, 1995. Accordingly, the defendants
requested that the court, pursuant to Miss. R. Civ. P. 41(b) and Miss. Code Ann. § 11-53-25 (1972),
involuntarily dismiss the action with prejudice due to AT&T's failure to prosecute its claim. Counsel
for defendants noticed the motion to be heard on October 14, 1996. AT&T did not respond to the
motion to dismiss. Instead, on October 4, 1996, AT&T filed a Motion for Trial Setting.

¶5. The court held a hearing on the motion to dismiss on the scheduled date, October 14, 1996.
Counsel for defendants Days Inn and Tac Gopal was present at the hearing. Counsel for AT&T once
again failed to appear. Counsel for defendant Leroy Allen, who was also present, joined in the motion
to dismiss at the hearing. After hearing argument in support of the motion, the court issued an order
on October 18, 1996, dismissing the case with prejudice. The court listed its reasons for dismissing
the case as follows:

     (1) The last activity in the file is an order entered by the Court on May 1, 1995 extending
     discovery until June 14, 1995.

     (2) Three terms of this Court have passed with no activity by the Plaintiff.

     (3) No one appeared at the October 1996 term of court docket setting for trials.

     (4) The Motion to Dismiss Stale Case for Failure to Prosecute was properly served on the
     plaintiff. The motion was set for hearing before this court. Counsel for plaintiff was properly
     notified of the date, time and place of the hearing on said motion. No one has responded or
     appeared to argue said motion by eleven ten (11:10) a.m. on Monday, October 14, 1996.

¶6. In a letter to the court dated October 17, 1996, counsel for AT&T claimed that the judge, in a
previous telephone conversation with him, had agreed to continue the case to the Spring term of
1997. In its response letter, the court acknowledged the previous conversation it had with AT&T's
counsel, but stated that "[a]t no time in our conversation did you mention that a motion to dismiss
was pending in this matter." Thus, in the court's view, nothing it said should have led counsel for the
plaintiff to believe that the hearing had been canceled. It emphasized that counsel for plaintiff was
notified of the hearing, failed to file a response to the motion to dismiss and failed to appear at the
hearing.
¶7. By motion filed October 23, 1996, AT&T moved the court to reconsider its ruling dismissing the
case. Counsel for AT&T argued that while three terms had passed, at least some of the delay was
occasioned by the inability of counsel for defendants to attend the docket call for the April term of
1996. He also informed the court that he was unable to attend the docket call on September 23, 1996
because of a prior setting in Quitman County. He was unable to attend the hearing on October 14,
1996 because he had four cases set for trial in Tunica County. Counsel for plaintiff contended,
however, that he had properly responded to the defendants' motion to dismiss by filing his motion for
trial setting on October 4, 1996. Counsel for plaintiff also reiterated his claim that he had engaged in
a telephone conversation with the judge after the missed docket call, and that the judge had agreed to
continue the case until the Spring of 1997. Counsel argued that based upon this, he reasonably
believed that the defendant's motion to dismiss was off the calendar.

¶8. On October 28, 1996, defendants Days Inn and Tac Gopal filed a Response to Motion to
Reconsider Ruling Dismissing Case. In this response, the defendants denied that good cause existed
for the court to reconsider and vacate its order of October 14, 1996. The defendants denied that any
of the delay could be attributed to them, since their counsel's inability to attend the docket call for the
April term of 1996 did not prevent the plaintiff from setting a trial. The defendants further contended
that the plaintiff's motion requesting a trial setting did not constitute a response to their motion to
dismiss. The defendants denied that counsel for plaintiff ever made a request to the court that the
case be continued to the Spring term of 1997, and thus denied that the plaintiff reasonably believed
the motion to dismiss was off the court's calendar.

¶9. By order filed February 25, 1997, the court denied the plaintiff's motion to reconsider. The court
reiterated that the plaintiff had been properly notified of the hearing of October 14, 1996, and did not
exercise due diligence in ignoring the notice of the hearing and failing to make any inquiry to the
court concerning the hearing. The plaintiff thereafter filed a notice of appeal.

¶10. At the request of plaintiff AT&T, its counsel in the proceedings below has withdrawn and new
counsel prosecutes this appeal on its behalf.

                                                    II.

¶11. "[T]he power to dismiss an action for want of prosecution is part of a trial court's inherent
authority." Wallace v. Jones, 572 So. 2d 371, 375 (Miss. 1990). This power is "a means necessary to
the orderly expedition of justice and the court's control of its own docket." Watson v. Lillard, 493
So. 2d 1277, 1278 (Miss. 1986) (citing Link v. Wabash R.R., 370 U.S. 626 (1962)). Where a
motion is made, its disposition is governed by Rule 41(b), which is the same under the federal system
and our own rules of civil procedure. A substantial body of law has grown up around the federal rule.
It does not, of course, bind this Court as precedent, but it provides useful guidelines for our
consideration. Watson, 493 So. 2d at 1278.

¶12. In reviewing a trial court's decision to dismiss under Rule 41(b), this Court may reverse only if it
finds that the trial court abused its discretion. Wallace, 572 So. 2d at 375 (citing Morris v. Ocean
Sys., Inc., 730 F.2d 248, 251 (5th Cir. 1984)); Watson, 493 So. 2d at 1279. At the same time, the
law favors trial of issues on the merits, and dismissals for want of prosecution are therefore employed
reluctantly. Id. at 1278 (citing Hobson v. Wilson, 737 F.2d 1 (D.C.Cir.1984)). There is no set time
limit on the prosecution of an action once it has been filed, and dismissal for failure to prosecute will
be upheld only "where the record shows that a plaintiff has been guilty of dilatory or contumacious
conduct." Watson, 493 So. 2d at 1279. This Court is mindful of the fact that "dismissal with
prejudice is an extreme and harsh sanction that deprives a litigant of the opportunity to pursue his
claim, and any dismissals with prejudice are reserved for the most egregious cases." Wallace, 572 So.
2d at 376 (citing Rogers v. Kroger Co., 669 F.2d 317 (5th Cir. 1982)). What constitutes failure to
prosecute depends on the facts of the particular case. Id.

¶13. In Rogers, the Fifth Circuit stated that "Rule 41(b) dismissals with prejudice will be affirmed
only upon a showing of 'a clear record of delay or contumacious conduct by the plaintiff,' . . ., and
where lesser sanctions would not serve the best interests of justice." Rogers, 669 F.2d at 320
(quoting Pond v. Braniff Airways, Inc., 453 F.2d 347, 349 (5th Cir. 1972)). See also McGowan v.
Faulkner Concrete Pipe Co., 659 F.2d 554, 556 (5th Cir. 1981); Gray v. Fidelity Acceptance Corp.,
634 F.2d 226, 227 (5th Cir. 1981); Luna v. International Ass'n of Machinists & Aerospace
Workers, 614 F.2d 529, 531 (5th Cir. 1980). While the requirements of a clear record of delay by the
plaintiff and futile lesser sanctions have been articulated the most consistently, several other factors
have been identified as "aggravating factors." See Rogers, 669 F.2d at 320 n.3; McCloud River R.R.
v. Sabine River Forest Prods., 735 F.2d 879, 883 (5th Cir. 1984). Specifically, these include "the
extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the
delay, the degree of actual prejudice to the defendant, and whether the delay was the result of
intentional conduct." Rogers, 669 F.2d at 320. See also, e.g., McGowan, 659 F.2d at 557-58
(intentional conduct); Burden v. Yates, 644 F.2d 503, 505 (5th Cir. 1981) (intentional conduct);
Veazey v. Young's Yacht Sale & Serv., 644 F.2d 475, 477-78 (5 th Cir. 1981) (responsibility of
plaintiff, intentional conduct, and prejudice to defendant). The Rogers court noted that cases "in
which dismissals with prejudice have been affirmed on appeal illustrate that such a sanction is
reserved for the most egregious of cases, usually cases where the requisite factors of clear delay and
ineffective lesser sanctions are bolstered by the presence of at least one of the aggravating factors."
Rogers, 669 F.2d at 320.

¶14. Using these standards, the first question for this Court is whether the conduct of counsel for
plaintiff can be said to clearly constitute delay or contumacious conduct. The defendants/appellees in
the present case argue that three terms of the circuit court passed without action by counsel for
plaintiff AT&T. We note, however, that the first full term of court following the filing of this action,
the April 1995 term, was avoided due to the defendants' motion to extend discovery.

¶15. AT&T also correctly asserts that the April 1996 term was avoided, at least in part, due to the
inability of counsel for defendants Days Inn and Tac Gopal to appear at the docket call scheduled for
March 21, 1996. The appellees argue that conflict of their counsel did not prevent AT&T from
obtaining a trial setting, since "counsel for Appellee Leroy Allen was contacted to answer the docket
call if AT&T's counsel appeared to set the case for trial." This arrangement, however, was not made
explicit to counsel for plaintiff nor to the court. The letter from defendants' counsel to the clerk of the
circuit court stated only that she would be unable to attend the trial docket, and requested that the
court "[p]lease move the above referenced matter to the October 1996 term of court." Plaintiff's
counsel might reasonably have believed, therefore, that the defendants were not opposed to the delay.

¶16. Thus, the delays relating to two of the three terms cited by the lower court were at least partially
due to actions taken by the defendants. The conduct of counsel for plaintiff was less than diligent. We
conclude, however, that it does not constitute a contemptuous resistance to the authority of the trial
court or a clear record of unilateral delay. See Rogers, 669 F.2d at 321.

¶17. This Court must also consider whether lesser sanctions may have better served the interests of
justice. Where there is no indication in the record that the lower court considered any alternative
sanctions to expedite the proceedings, appellate courts are less likely to uphold a Rule 41(b)
dismissal. See, e.g., id. at 321-22; McGowan, 659 F.2d at 557; Burden, 644 F.2d at 505. "Lesser
sanctions include 'fines, costs, or damages against plaintiff or his counsel, attorney disciplinary
measures, conditional dismissal, dismissal without prejudice, and explicit warnings.'" Wallace, 572
So. 2d at 377 (quoting Rogers, 669 F.2d at 321). In the present case, there is no indication that lesser
sanctions were considered by the court, and it is not at all certain that such sanctions would have
been futile in expediting the proceedings. See id.; McCloud River R.R., 735 F.2d at 883 (trial court's
order vacated for failure to consider lesser sanctions).

¶18. Thus, the record in the present case fulfills neither of the requisite factors for dismissal under
Rule 41(b). There is no clear record of delay or contumacious conduct on the part of the plaintiff and
no finding that lesser sanctions would not have better served the ends of justice.

¶19. We note also the lack of any clear indication that the delays were due to the so-called
"aggravating factors" identified by the Rogers court. First, there is nothing in the record to suggest
that AT&T, as opposed to its counsel, was responsible for any of the delays. This circumstance sets
the present case apart from other cases in which Rule 41(b) dismissals have been affirmed. See, e.g.,
Watson v. Lillard, 493 So. 2d 1277 (Miss. 1986) (Rule 41(b) dismissal of the plaintiff's case affirmed
where it was found that the plaintiff herself was responsible herself for driving off two sets of
competent counsel); Anthony v. Marion County Gen. Hosp.,617 F.2d 1164, 1168 n.4 (5th Cir.
1980) ("[w]e note that in at least four cases where dismissal was held to be inappropriate, a factor
was the lack of any indication in the record of the client's knowledge of, or participation in, his
attorney's failure to prosecute") (citations omitted). Second, there is little actual prejudice to the
defendants by allowing this case to proceed to trial, as all material witnesses are apparently still
available to testify. Finally, the record indicates that it was counsel for plaintiff's preoccupation with
his duties as court-appointed public defender in other counties, rather than any intentional attempt to
abuse the judicial process, which accounted for his delays in the present case.

¶20. The theme running through the cases involving Rule 41(b) is that negligence or inexcusable
conduct on the part of plaintiff's counsel does not in itself justify dismissal with prejudice. See, e.g.,
Rogers, 669 F.2d at 322-23; McGowan, 659 F.2d at 558. This is not to say that the lower court is
powerless to deal with derelictions of duty by counsel. We make clear that upon remand the circuit
court may impose such reasonable sanctions, short of dismissal, on AT&T or its present attorneys as
the court may find appropriate. See, e.g.,Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241,
248 (5th Cir. 1980).

                                                   III.

¶21. For the foregoing reasons, we conclude that the circuit court erred in dismissing the plaintiff's
case with prejudice. Accordingly, the judgment of the lower court is reversed and the case remanded
for further proceedings.
¶22. REVERSED AND REMANDED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., McRAE, ROBERTS, SMITH, MILLS
AND WALLER, JJ., CONCUR.
