Civil Procedure; Divorce--equitable distribution--failure to prosecute claim--dismissal with
prejudice
The trial court erred by dismissing with prejudice under N.C.G.S. § 1A-1, Rule 41(b)
plaintiff's claim for equitable distribution based on plaintiff's alleged failure to prosecute the
claim, because: (1) the trial court failed to consider lesser sanctions before dismissing the case;
and (2) before dismissing for failure to prosecute under Rule 41(b), the trial court must address
the three factors of whether plaintiff acted in a manner which deliberately or unreasonably
delayed the matter, the amount of prejudice to defendant, and the reason that sanctions short of
dismissal would not suffice.
Louie Wilson III, for plaintiff-appellant.
Larry S. Overton, P.A., by Larry S. Overton, for defendant-
appellee.
HUDSON, Judge.
Plaintiff appeals an order entered 9 May 2000 by Judge Thomas
R.J. Newbern dismissing plaintiff's action for equitable
distribution. Plaintiff originally filed a complaint on 29
September 1987 requesting a divorce from bed and board, alimony,
alimony pendente lite, and child support from defendant. Plaintiff
also preserved her interest in the equitable distribution of
marital property. In his Answer and Counterclaim, filed 2 November
1987, Defendant stated that he would be seeking equitable
distribution "[a]t an appropriate time" in the future. Defendant
filed a motion on 18 April 2000 to dismiss plaintiff's claim forequitable distribution. The plaintiff argued the motion pro se and
defendant was represented by his attorney. Judge Newbern dismissed
plaintiff's 1987 action for equitable distribution pursuant to
North Carolina Rule of Civil Procedure 41(b). In his order, the
trial judge found that plaintiff had not pursued her claim for
equitable distribution, but made no mention as to whether the
defendant had pursued his claim. We reverse and remand for the
trial court to consider and make further findings as to whether
lesser sanctions than dismissal were appropriate.
Plaintiff and defendant were married in 1964 and had three
children. After discord in their relationship increased, plaintiff
filed for divorce from defendant. The court entered an order on 30
November 1987 settling issues of child custody, child support,
alimony, and temporary possession of marital property. In 1990,
the court awarded plaintiff an absolute divorce from defendant.
The court never determined plaintiff's claim for equitable
distribution of marital property which was contained in her
original Complaint filed 29 September 1987, nor did the court
determine defendant's claim for equitable distribution mentioned in
his Answer and Counterclaim filed 2 November 1987. In granting
plaintiff an absolute divorce from defendant 18 May 1990, the court
noted that plaintiff's claim for equitable distribution was still
pending. After plaintiff sought to have the court approve and sign
a Qualified Domestic Relations Order regarding a pension plan of
defendant's, defendant filed a motion to dismiss plaintiff's claim
for equitable distribution on 18 April 2000. After a hearing, the
trial court concluded that plaintiff had failed to prosecute herequitable distribution claim, which materially prejudiced the
defendant. The court dismissed plaintiff's claim for equitable
distribution with prejudice.
Plaintiff's only assignment of error asserts that the "trial
court erred in dismissing plaintiff's claim for equitable
distribution for failure to prosecute without considering
appropriate sanctions short of dismissal." The trial court
dismissed plaintiff's claim for equitable distribution pursuant to
Rule 41(b). Rule 41(b) provides for the involuntary dismissal of
a cause of action "[f]or failure of the plaintiff to prosecute or
to comply with these rules or any order of court." In general, a
trial court is required to "consider lesser sanctions before
dismissing an action under Rule 41(b)." Goss v. Battle, 111 N.C.
App. 173, 176, 432 S.E.2d 156, 158 (1993) (remanding case to trial
court to consider less severe sanctions than dismissal for
violation of Rule 37(d) of the North Carolina Rules of Civil
Procedure).
Rule 41(b) provides that a claim may be dismissed for one of
three reasons: failure to comply with the rules, failure to comply
with a court order, or failure to prosecute. Most of the cases
cited in the plaintiff's brief specifically concern dismissals
under Rule 41(b) for failure to "comply with these rules or any
order of court," and not dismissals for failure to prosecute. See
Foy v. Hunter, 106 N.C. App. 614, 418 S.E.2d 299
(1992)(consideration of lesser sanctions than dismissal with
prejudice under Rule 41(b) for violation of Rule 8(a)(2)); Danielsv. Montgomery Mut. Ins. Co., 81 N.C. App. 600, 344 S.E.2d 847
(1986) (consideration of lesser sanctions than dismissal for
failure to comply with court order). These cases require that a
trial court consider lesser sanctions before dismissing a claim
pursuant to Rule 41(b). Although the general rule stated in Goss
supports this Court's holding, no North Carolina cases specifically
state that lesser sanctions must be considered by a trial court
before dismissing a claim pursuant to Rule 41(b) for failure to
prosecute. Because we believe that the cases on Rule 41(b) point
most logically in this direction, we hold that the trial court must
also consider lesser sanctions when dismissing a case pursuant to
Rule 41(b) for failure to prosecute.
We reach this conclusion for two reasons. First, from the
cases involving dismissals under Rule 41(b), we can discern no
reason to treat a dismissal for failure to prosecute different from
dismissals for other reasons permitted by Rule 41(b), when the
question is whether lesser sanctions suffice. And second, because
the cases concerning dismissal under Rule 41(b), few though they
are, appear to compel this conclusion.
Dismissal is the most severe sanction available to the court
in a civil case. See Daniels, 81 N.C. App. at 604, 344 S.E.2d at
849. An underlying purpose of the judicial system is to decide
cases on their merits, not dismiss parties' causes of action for
mere procedural violations. See Jones v. Stone, 52 N.C. App. 502,
505, 279 S.E.2d 13, 15, disc. rev. denied, 304 N.C. 195, 285 S.E.2d
99 (1981) (holding that the trial court correctly refused to granta motion to dismiss for failure to prosecute); Green v. Eure,
Secretary of State, 18 N.C. App. 671, 672, 197 S.E.2d 599, 600
(1973) (holding that the trial court erred in dismissing
plaintiff's action for failure to prosecute). In accord with this
purpose, claims should be involuntarily dismissed only when lesser
sanctions are not appropriate to remedy the procedural violation.
See Daniels, 81 N.C. App. at 604, 344 S.E.2d at 849; Harris v.
Maready, 311 N.C. 536, 551, 319 S.E.2d 912, 922 (1984).
Defendant relies upon Foy v. Hunter to illustrate the issues
North Carolina case law presents on this subject. There, the trial
court dismissed plaintiffs' claims with prejudice based on
plaintiffs' alleged failure to prosecute and on an alleged failure
to comply with the Rules of Civil Procedure, specifically Rule
8(a)(2). See id. at 619, 418 S.E.2d at 302. In considering the
dismissal for failure to prosecute, this court applied the standard
from Green and Link v. Wabash R. Co., 370 U.S. 626, 8 L.Ed. 2d 734
(1962): "[u]nder Rule 41(b), a trial court may enter sanctions for
failure to prosecute only where the plaintiff or his attorney
'manifests an intention to thwart the progress of the action to its
conclusion' or 'fails to progress the action toward its conclusion'
by engaging in some delaying tactic." Foy, 106 N.C. App at 618,
418 S.E.2d at 302 (quoting Green, 18 N.C. App. at 672, 197 S.E.2d
at 600-01; Jones, 52 N.C. App. at 505, 279 S.E.2d at 15) (emphasis
added). This Court reversed the dismissal for failure to
prosecute, because the evidence in the record did not support thefinding that plaintiff intended to thwart progress in the action.
Additionally, the trial court failed to make any findings as to
whether plaintiff's attorneys failed to prosecute the action.
Because the findings were not supported, this Court declined to
uphold the dismissal for failure to prosecute on this basis. See
Foy, 106 N.C. App. at 619, 418 S.E.2d at 303.
However, this Court in Foy considered the dismissal for
violation of Rule 8(a)(2) separately. The Court noted that when a
party violates a rule, the trial court may dismiss for failure to
comply with the Rules of Civil Procedure if it has first determined
the appropriateness of lesser sanctions. See id. at 620, 418
S.E.2d at 303. "[T]he trial court must make findings and
conclusions which indicate that it has considered . . . less
drastic sanctions." Id. (citing Rivenbark v. Southmark Corp., 93
N.C. App. 414, 421, 378 S.E.2d 196, 201 (1989)). Because the trial
court had not made such findings, the court reversed the dismissal
of the complaint and remanded for reconsideration of appropriate
sanctions for the violation of Rule 8(a)(2). See id.
Here, the trial court made some findings of fact and
conclusions of law concerning plaintiff's failure to prosecute.
However, we find that the trial court did not consider in the
record whether lesser sanctions were appropriate for plaintiff's
failure to prosecute. "If the trial court undertakes this
analysis, its resulting order will be reversed on appeal only for
an abuse of discretion." Foy, 106 N.C. App. at 620, 418 S.E.2d at303 (citing Miller v. Ferree, 84 N.C. App. 135, 137, 3
51 S.E.2d
845, 847 (1987) (holding that the trial court did not abuse its
discretion in considering lesser sanctions than dismissal with
prejudice when deciding to dismiss plaintiff's action without
prejudice)).
We also note that the Fourth Circuit has ruled accordingly in
interpreting the same rule. Although we are not bound by these
cases, they can have instructional value, especially when
considered in conjunction with the preceding state law analysis.
See State v. Adams, 132 N.C. App. 819, 820, 513 S.E.2d 588, 589
(1999) (noting that "federal appellate decisions are not binding
upon either the appellate or trial courts of this State"). The
pertinent language of Rule 41 of the Federal Rules of Civil
Procedure is identical to Rule 41 of the North Carolina Rules of
Civil Procedure. The Fourth Circuit has held that before
dismissing a claim for failure to prosecute under Federal Rule of
Civil Procedure 41(b) the trial court must consider four factors:
"(1) the plaintiff's degree of personal responsibility; (2) the
amount of prejudice caused the defendant; (3) the presence of a
drawn out history of deliberately proceeding in a dilatory fashion;
and (4) the effectiveness of sanctions less drastic than
dismissal." Hillig v. Commissioner of Internal Revenue, 916 F.2d
171, 173 (4th Cir. 1990).
We believe that the factors recognized in Hillig, as well as
in our previous cases, together give rise to three factors that the
trial judge must address before dismissing for failure to prosecuteunder Rule 41(b). They are: (1) whether the plaintiff acted in a
manner which deliberately or unreasonably delayed the matter; (2)
the amount of prejudice, if any, to the defendant; and (3) the
reason, if one exists, that sanctions short of dismissal would not
suffice. Here, the trial court did not fully address any of these
factors. The only mention of prejudice to the defendant in the
order is contained in finding number 17, which reveals no factual
basis and thus is actually a conclusion of law. See Carpenter v.
Brooks, 139 N.C. App. 745, 752, 534 S.E.2d 641, 646, disc. rev.
denied, 353 N.C. 261, 546 S.E.2d 91 (2000) (conclusions of law, even
if erroneously labeled as findings of fact, are reviewable de novo
on appeal). We hold that the conclusion that there was prejudice
to the defendant is insufficiently supported by factual findings,
and must be vacated.
In sum, we hold that the trial judge must address the three
factors previously enumerated before deciding whether to dismiss the
plaintiff's claim with prejudice under Rule 41(b), for failure to
prosecute. Accordingly, the trial court's order dismissing with
prejudice plaintiff's claim for equitable distribution is vacated,
and this case is remanded to the trial court for further proceedings
consistent with this opinion.
Reversed and remanded.
Judges WALKER and McGEE concur.
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