Simmons v. Tuttle

PHILLIPS, Judge. G.S. 7A-34 authorizes the North Carolina Supreme Court to establish rules of practice and procedure for the District and Superior Courts “supplementary to, and not inconsistent with, acts of the General Assembly.” Among the rules adopted under this statutory authority is Rule 2 of the General Rules of Practice which, in pertinent part, provides: Subject to the provisions of Rule 40(a), Rules of Civil Procedure and G.S. 7A-146: (a) The Senior Resident Judge and Chief District Judge in each Judicial District shall be responsible for the calendaring of all civil cases and motions for trial or hearing in their respective jurisdictions. A case management plan for the calendaring of civil cases must be developed by the Senior Resident Judge and the Chief District Court Judge. The case management plan developed by the Chief District Judge of the Twenty-First Judicial District apparently provides for periodically putting all cases that have been at issue for a few months on a clean-up calendar; dismissing those cases in which neither the plaintiff nor his counsel either appears at the call of the clean-up calendar or writes a letter ahead of time stating whether the cases are ready for trial, and if not, why; and putting the reported cases on a ready calendar, from which later trial calendars are drawn. And the record shows that plaintiffs case was routinely dismissed on the court’s own motion, as the calen [105] dar notice stated would happen, when neither plaintiff nor his new counsel either appeared at the call of the clean-up calendar or advised the court ahead of time in writing what the status of the case was. We do not believe that the court was empowered to dismiss plaintiffs case under the circumstances recorded. Rule 41(b) of the Rules of Civil Procedure in pertinent part provides: “For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim therein against him.” (Emphasis added.) We interpret this provision to mean that the court may not dismiss an action ex mero motu for failure to prosecute. A learned author in this field agrees: “In any event, the defendant must move for dismissal under the rule in order to obtain the benefits provided therein.” Shuford, N.C. Civil Practice and Procedure (2d ed.) § 41-7, p. 327 (1981). Furthermore, there is no indication in the record that the case was stale or that plaintiff was unwilling to prosecute it. Green v. Eure, 18 N.C. App. 671, 197 S.E. 2d 599 (1973). Even if the court had possessed the authority to dismiss the action ex mero motu, its denial of plaintiffs motion for relief therefrom under Rule 60(b)(1) of the N.C. Rules of Civil Procedure was error. This rule authorizes relief from a judgment or order that is entered due to mistake, inadvertence, surprise or excusable neglect. It is quite plain that the plaintiff, as distinguished from his new counsel, was without fault in not reporting to the court or attending the call of the clean-up calendar, and his case should not have been dismissed because of it. Though the court could have properly found that plaintiffs new counsel was negligent for failing to ascertain that the case was on the clean-up calendar and acted accordingly, this neglect was not imputable to plaintiff; because an attorney’s neglect will not be imputed to a litigant that is himself free of fault. Moore v. Deal, 239 N.C. 224, 79 S.E. 2d 507 (1954); Kirby v. Asheville Contracting Co., Inc., 11 N.C. App. 128, 180 S.E. 2d 407, cert. denied, 278 N.C. 701, 181 S.E. 2d 602 (1971). According to the record, the dismissal was entered because plaintiffs attorney failed to discharge an administrative duty; a duty, as is generally known to the profession, that is rarely, if ever, discharged by litigants whose cases are being handled by lawyers, and that, for aught that the record shows, plaintiff knew nothing about. Thus, though the court certainly had [106] grounds for sanctioning plaintiffs new counsel, had it chosen to do so, it had no grounds for sanctioning plaintiff at all, much less to the drastic extent of dismissing his case, and plaintiffs motion to set the judgment aside should have been granted. The judgment of dismissal is vacated and this matter remanded to the District Court for trial or other proceedings in due course. Vacated and remanded. Judges Arnold and Johnson concur in result.