This is a strange sequence of events.
Folks will recall that on December 1st last year, Hal Neilson (through attorney Christie McCoy, who had won his criminal case for him) filed a libel suit against Tom Dawson and Alan Lange for things they’d written in their book Kings of Tort.
By operation of the rules of procedure, that would have given Neilson until April 1 to get process on Dawson and Lange.
On March 29th, Neilson filed a Motion for Extension Of Time for Service of Process. The motion alleged that plaintiff had attempted to serve one defendant at home and at their business, and that plaintiff’s counsel had attempted to serve a defendant (it’s not clear which was which or whether this was both?). The motion suggested the defendants were evading process.
On April 6th, Grady Tollison, on behalf of Dawson and Lange, filed an objection to the motion for time, noting that they had not been served as of that date. The objection notes that Dawson lives down the street from Christie McCoy, and that there seems to have been only one attempt to serve each, both in the last 10 days of the time for service. It therefore alleges there was no diligent attempt to serve the defendants.
On April 8, an order was entered granting McCoy time to obtain service. This order was signed on March 30th (before the April 1st deadline, and before objection) but not filed until over a week later.
Tollison then filed a motion to dismiss, asserting that Neilson had to be allowed leave to obtain process prior to the 120 days running, and, because the order was not entered until after, process was served too late and the case subject to be dismissed.
On May 24th, the court entered an order setting hearing on the motion to dismiss for July 11th in Oxford.
And, Friday, Judge Elliott entered a really odd order dismissing the case. After noting that the motion to dismiss had been set and that there was no response, the court stated it was set for a hearing, and:
Plaintiff’s attorney was provided notice of the hearing. Neither Plaintiff nor his attorney was present for the hearing.
Although unconvinced by defendants’ legal basis for their motion to dismiss, this Court hereby GRANTS defendants motion and dismiss the claims against defendants without prejudice. Had Plaintiff opposed the motion, this Court may have been presented with a basis to rule otherwise.
Apparently, thereafter on Friday, the clerk received a testy letter exchange today between counsel about that motion setting, with Tollison providing a pile of documentation that the setting was agreed by all; the letter exchange was not yet in the court file when I got the documents listed above.
There’s a one year limitations period for libel (and, observing this, I wonder how the advent of printing on demand effects the single publication rule?), and this suit was filed right at the one year anniversary of the publication of Kings of Tort. The dismissal was without prejudice.
Should this become a hypothetical on civil procedure exams? Discuss.
Before closing, I’m going to note that if this ends the case, in the long run, once farther from the heat of battle, Neilson may pause to reflect that it really was better not to have to essentially retry his criminal case (with a lot more freewheeling rules about what comes in and what doesn’t) in the way he’d have to if he went through with a libel suit.
This was not a serious attempt at litigation but filed to stop the SOL from running then think about it. I would bet good $$ that Christie filed to stop SOL and told Hal to get another attorney if he wished to pursue and he either did not or could not. Agree with Tom let sleeping dogs lie.
That at least makes sense, Tim. Tho I’m not sure “granting a legally baseless motion” is an appropriate sanction for missing a hearing.
Anderson, what about waiver– not showing up, not responding in writing, nothing?
Given the appeals court’s devotion to procedural bar (a devotion that was born in death penalty cases– I remember the moment in the mid to late 80s when I thought “these rules are going to spread outside the death penalty cases, and it won’t be good), I’m not sure this is so much about “sanction” as “waiver.”
Fililing, even without service, tolls sol 120 days. Depending on how much time is left on sol at the time it was filed, dismissal may be of no consequence. Or it may be fatal.
Moral: dont wait until near statute to file.
I agree NMC, if I were Judge I wouldn’t put such statement in an order even if I believed it, granting Motion because it was simply unopposed after notice was the answer and only thing necessary to be said.
There is no requirement to respond to a dispositive motion. See, e.g., Foster v. Noel, 715 So. 2d 174, 180 (Miss. 1998)(no requirement to file response to motion for summary judgment). While there is a requirement to appear in court in response to an order setting a hearing, there is no requirement to appear in response to a notice filed by a party. Consequently, a motion to dismiss cannot be granted as a “sanction” for a party’s failure to respond or appear. Dispositive motions are not granted by default; a court can only grant the motion if it is well-founded. See Foster v. Noel, 715 So. 2d at 180 (“Rule 56(e) does not entitle a party to summary judgment by default where the nonmoving party files no response, for even in the absence of a response the court may enter judgment only ‘if appropriate.’”). I think this summary judgment case law provides guidance in the context of a motion to dismiss.
In this case, the trial judge wrote, “Although unconvinced by defendants’ legal basis for their motion to dismiss, this court hereby GRANTS defendants motion . . .” thus recognizing that the motion was inappropriate. The judge also appears to have granted the motion based on the notion that the non-moving party was in “default” for not responding or appearing at the hearing (“Had plaintiff opposed the motion, this court may have been presented with a basis to rule otherwise.”). The trial judge erred in granting the motion.
I don’t think that’s a valid application of waiver, NMC, but I take your point about how the “machinery of death” can corrupt the whole justice system.
no requirement to file response to motion for summary judgment
Without reading the op, that does not seem correct. URCCC 4.03: “Respondent shall reply within ten (10) days after service of movant’s memorandum.”
Who is this Judge Elliott, btw? Is he the new judge in Judge Lackey’s seat?
… Yeah, if Neilson wants to appeal that dismissal, he might have a shot.
In the state of the record at this moment, Anderson, I’m confused why you don’t see waiver. If you want to argue a judge is wrong, you have to tell him in what way.
Judge Elliott has been a circuit judge here into his second term, and was a well respected lawyer in Ripley before that. Judge Lackey’s replacement was John Gregory.
I haven’t read the linked docs, but I don’t see how failing to answer a dispositive motion is waiver; see the authorities cited by John. If there’s some contrary authority supporting this “waiver” theory, that would be interesting.
Although unconvinced by defendants’ legal basis for their motion to dismiss, this Court hereby GRANTS defendants motion and dismiss the claims against defendants without prejudice. Had Plaintiff opposed the motion, this Court may have been presented with a basis to rule otherwise.
That seems to completely misunderstand how a 12(b)(6) motion works. If you’re unconvinced by the legal basis for the motion, you don’t grant it. One could be excused for imagining that the court had skipped over the standard of review in every appellate decision it had ever read.
Failure to obey the rules and to show up for a hearing deserves some kind of sanction, but there had better be some on-the-record findings supporting that sanction.
On appeal, the issue is “The trial court should not have granted the motion to dismiss because…” It’s at the part of the argument after the word “because” that waiver is present. Because why? Are you suggesting Neilson would have been worse off if his lawyer had appeared but not given any reason to deny the motion to dismiss?
Neilson should file a motion to reconsider within 10 days of the entry of the order dismissing the case to ensure it is treated as a Rule 59(e) motion. He should seek to alter or amend the judgment given the trial court’s explicit finding that the motion lacked a legal basis. That is, ask the court to enter an amended order denying the motion because the motion lacks a legal foundation. He should cite Foster v. Noel in support of the propositions that there is no requirement to file a written response and dispositive motions are not granted by default.
If an appeal becomes necessary, I would frame the issue and craft the argument something like the following:
ISSUE: Whether the trial court erred in granting the motion to dismiss where the trial court found that it was unconvinced by the defendants’ legal basis for their motion.
ARGUMENT: The trial court erred in granting the motion to dismiss because it was unconvinced regarding the legal basis for the motion. It appears the trial judge granted the motion believing that it was proper to grant the motion by default as the nonmoving party did not file a written response or appear at the hearing in response to the defendant’s notice of hearing. (The hearing was not set by court order.)
There is no requirement for the non-moving party to respond to a dispositive motion. See, e.g., Foster v. Noel, 715 So. 2d 174, 180 (Miss. 1998)(no requirement to file response to motion for summary judgment). While Uniform Rule of Circuit and County Court Practice 4.03 states in part, “respondent shall reply within ten (10) days after service of movant’s memorandum,” this part of the rule is best understood as establishing a timing standard should the non-moving party decide to file a response, rather than mandating the non-moving party file a response since the Uniform Rules simply do not overrule case law. Dispositive motions are not granted by default; a court can only grant the motion if it is well-founded. See Foster v. Noel, 715 So. 2d at 180 (“Rule 56(e) does not entitle a party to summary judgment by default where the nonmoving party files no response, for even in the absence of a response the court may enter judgment only ‘if appropriate.’”). The appellant respectfully submits that the summary judgment case law cited provides guidance in the context of a motion to dismiss.
In this case, the trial judge erred by granting the motion to dismiss despite explicitly finding that he was unconvinced by defendants’ legal basis for the motion. It appears that the trial judge granted the motion believing the appellant was “in default” by not responding or appearing at the hearing. It was error for the trial judge to grant the motion by default, particularly after finding the motion did not have a legal basis.