Brewer et al v. Ferry Transportation, et al

Filing 33

ORDER granting Defendant's 31 Motion to Dismiss for Lack of Prosecution. This case is dismissed without prejudice. A separate Judgment shall be entered. Signed by District Judge Keith Starrett on May 6, 2011 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION

JAMES R. BREWER, JR.; AND
VICKIE RENEE BREWER

PLAINTIFFS

VERSUS

CIVIL ACTION NO. 2:05cv137KS-MTP

MERCEDES BENZ CREDIT CORPORATION

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the court on a Motion to Dismiss [#31] filed on behalf of the
defendant, Mercedes Benz Credit Corporation. The court, having reviewed the motion,
the pleadings and exhibits on file and being being advised that the plaintiff has failed to
respond finds that the motion to dismiss is well taken and should be granted. The court
specifically finds as follows:

BACKGROUND
Plaintiffs James R. Brewer, Jr. and Vickie Renee Brewer filed the initial
Complaint in this matter in the Circuit Court of Jones County, Mississippi – Civil Action
No. 2004- 113-CV6. The Plaintiffs’ Complaint alleged that on or about January 29,
2004, James Brewer was employed by Vanguard Services, Inc. and was driving a
tractor-trailer truck that was owned by the Defendant, Mercedes Benz Credit
Corporation; the tractor-trailer was leased or being purchased by the Defendant, Ferry
Transportation. James Brewer alleged he was loading the trailer with chickens to

deliver to Moselle, Mississippi, from Nashville, Arkansas. Brewer further alleged that
while negotiating a turn, the springs that would have balanced the trailer were broken
and caused the load to shift and flip over causing the tractor-trailer to be on its right
side.
Plaintiffs alleged that it was the duty of Ferry Transportation to maintain the trailer
that was being pulled by the tractor operated by the Plaintiff. Plaintiffs also alleged that
it was the responsibility of Ferry Transportation and Mercedes Benz Credit Corporation
to have the trailer properly inspected prior to use and to have it properly maintained,
and that they negligently failed to do so. Plaintiffs claimed that the aforesaid negligence
caused James Brewer to sustain serious damages and injuries including medical bills,
doctor bills, and permanent injuries, all as a direct result of this accident. Vickie Brewer
alleged she suffered a loss of consortium as a result of the aforesaid negligence of the
Defendants. Finally, Plaintiffs alleged that these negligent acts were willful and gross in
nature entitling the Plaintiffs to punitive damages.
Prior to the removal of this case, the Defendant Ferry Transportation was
voluntarily dismissed from this action on or about May 12, 2005, and the Plaintiffs
obtained an entry of default against Chrysler. This action was properly removed to this
Court on or about May 20, 2005, and Plaintiffs’ Motion to Remand this action was
denied by Order of this Court dated August 2, 2005. Additionally, the entry of default
against Chrysler was set aside by order of this Court dated October 20, 2005.
Various motions were filed in this matter, including, Defendant, Chrysler’s, Motion
for Leave to File Third Party Complaint, and an Amended Motion for Leave to File Third
Party Complaint, filed on or about January 2, 2006 and February 15, 2006, respectively,
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and said motion was granted on or about March 14, 2006. In Chrysler’s motion, it
requested that this Court hold the matter of its Third Party Complaint in abeyance until
such time it had completed its investigation of its rights under the lease agreement with
Ferry Transportation.
On or about January 27, 2007, Chrysler filed a Complaint for Declaratory
Judgment, Civil Action No. 2007-7-CV1, against Ferry Transportation and other
defendants, in the Circuit Court of the Second Judicial District of Jones County,
Mississippi. However, Chrysler was unable to locate and serve process upon Ferry
Transportation, and Chrysler’s Complaint was eventually dismissed pursuant to Rule
41(d)(1) of the Mississippi Rules of Civil Procedure on or about December 3, 2009.
Ferry Transportation is no longer a party to this action, in any way. On or about March
22, 2006, this Court found “no further reason to maintain the file as an open one for
statistical purposes” due to the Suggestion of Bankruptcy filed by Defendant, Ferry
Transportation.
Plaintiffs’ attorney, Jay L. Jernigan, filed his motion to withdraw as counsel on or
about October 30, 2007. That motion was granted on or about August 26, 2008.
Plaintiffs were ordered that a new attorney should enter his or her appearance within
thirty days from the date of the Order allowing Plaintiffs’ attorney to withdraw – which
would have been on or about September 26, 2008 – or the Plaintiffs were to announce
that they were proceeding pro se.
Plaintiffs have failed to respond to this Court’s August 26, 2008, Order. In fact,
no motions or orders have been entered in this matter since August 27, 2008 – a period
of inactivity of almost three years. Further, Plaintiffs’ last action of prosecution, or
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furtherance, of this case was over five years ago when Plaintiffs propounded three
interrogatories to Chrysler on or about December 12, 2005.

LAW AND ANALYSIS
Fed. R. Civ. P. 41(b) provides that "[f]or failure of the plaintiff to prosecute or to
comply with these rules or any order of court, a defendant may move for dismissal of
any action." The Court may also "dismiss an action sua sponte under Rule 41(b) for
failure to comply with a court order." See Link v. Wabash Railroad, 370 U.S. 626
(1962); Long v. Simmons, 77 F.3d 878, 879 (5th Cir. 1996) (citing McCullough v.
Lynaugh, 835 F.2d 1126 (5th Cir. 1988)). See also Lopez v. Aransas County
Independent Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978).
In Rogers v. Kroger Co., 669 F.2d 317 (5th Cir.1982) the Fifth Circuit surveyed
the principles controlling Rule 41(b) dismissals with prejudice and stated, "A clear
record of delay coupled with tried or futile lesser sanctions will justify a Rule 41(b)
dismissal." Id. at 322. Rogers also listed three "aggravating elements" that usually
accompany the two primary reasons for which the Rule 41(b) power is invoked. These
three elements are "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." Id. at 320. The
Fifth Circuit has stated that “[d]elay alone can infuse an adverse element into the proper
flow of litigation: evidence deteriorates or disappears, memories fade, and witnesses die
or move away.” Veazey v. Young’s Yacht Sale & Service, Inc., 644 F.2d 475, 477-78
(5th Cir. 1981). “If the delay is unjustified, the court can and must act to redress the
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balance.” Id.
The court must be able to clear its calendars of cases that remain dormant
because of the inaction or dilatoriness of the parties seeking relief, so as to achieve the
orderly and expeditious disposition of cases. Such a sanction is necessary in order to
prevent undue delays in the disposition of pending cases and to avoid congestion in the
calendars of the court. Link, 370 U.S. at 630.
The Plaintiffs’ last action to pursue the prosecution of this case was over five and
a half years ago and nothing has transpired for over two and a half years. The Plaintiffs
bear the obligation to prosecute this case to a conclusion and must be vigilant in doing
so. It has been over six years since the filing of the complaint and the Plaintiffs have
failed to comply with the Court's orders and has otherwise failed to prosecute this case.
Therefore, dismissal pursuant to Fed. R. Civ. P. 41(b) is appropriate. See Ordogne v.
Shalala, No. 92-3183 "I" (3), 1994 WL 543031, at *2 (E.D. La. June 14, 1994).
IT IS ORDERED AND ADJUDGED that Plaintiffs’ Complaint is dismissed without
prejudice pursuant to Fed. R. Civ. P. 41(b). A separate judgment shall be entered
herein in accordance with Rule 58, Federal Rules of Civil Procedure.
SO ORDERED AND ADJUDGED this the 6th day of May, 2011.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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