IN THE SUPREME COURT OF NORTH CAROLINA
No. 263A23
Filed 18 October 2024
IAN COWPERTHWAIT, WILLIAM COWPERTHWAIT, and CATHERINE COWPERTHWAIT
v.
SALEM BAPTIST CHURCH, INC.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 290 N.C. App. 262 (2023), affirming in part and reversing in
part an order entered on 24 September 2021 by Judge Susan E. Bray in Superior
Court, Forsyth County, and remanding the case. Heard in the Supreme Court on 19
September 2024.
Fox Rothschild, LLP, by Elizabeth Brooks Scherer and Nathan W. Wilson, and Smith Law Group, PLLC, by Steven D. Smith, for plaintiffs-appellees.
Bovis Kyle Burch & Medlin, LLC, by Alicia L. Bray and Camilla F. DeBoard, for defendant-appellant.
PER CURIAM.
In a divided opinion, the Court of Appeals affirmed in part the trial court’s
order vacating plaintiffs’ Rule 41(a)(1) voluntary dismissal, reversed the portion of
the trial court’s order dismissing the case with prejudice, and remanded for the trial
court to further consider which sanction short of dismissal with prejudice would be
appropriate for plaintiffs’ failure to prosecute. Cowperthwait v. Salem Baptist
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Opinion of the Court
Church, Inc., 290 N.C. App. 262 (2023). Defendant appealed based on the dissent.
For the reasons stated in the dissenting opinion, the decision of the Court of Appeals
is reversed.
REVERSED.
-2- Justice BARRINGER concurring in part and dissenting in part.
I concur with my esteemed colleagues of the majority that the decision of the
Court of Appeals should be reversed when applying the applicable standard of
review—abuse of discretion. I write this dissent to clarify that the relevant time
period to be considered is the “period of time between the filing of the complaint and
the ruling on [d]efendant’s . . . motion.” Cowperthwait v. Salem Baptist Church, Inc.,
290 N.C. App. 262, 271 (2023) (Stroud, C.J., concurring in result only in part,
dissenting in part).
The judiciary has no role in deciding the soundness of public policy codified by
the legislature. Applicable here, our legislature has decided that a plaintiff “who is
[within the age of 18 years] at the time the cause of action accrued” is entitled to bring
his or her action “within three years” after achieving the age of majority. N.C.G.S.
§ 1-17(a) (2023).
I am troubled by the trial court’s finding that defendants “had been attempting
to obtain the requested medical records of Ian Cowperthwait since at least 2014”—
referencing a time period six years before the lawsuit was timely filed. Further
concerning is the trial court’s consideration that this case was “unusually old by
virtue of the tolling of the statute of limitations applicable,” therefore concluding that
the “additional year-long delay” in prosecuting the action prejudiced the defendant.
Cowperthwait, 290 N.C. App. at 267 (Stroud, C.J., concurring in result only in part,
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Barringer, J., concurring in part and dissenting in part
In my view, on these facts, the only time frame that is appropriately considered
is after the claim was timely filed. Under the presumption of regularity, I must
presume that the trial court did not inappropriately consider the period during which
the statute of limitations was tolled. The Court of Appeals dissent stated, “[T]he trial
court properly relied on the period of time between the filing of the complaint and the
ruling on [d]efendant’s . . . motion.” Id. at 271. On its face, this is within the trial
court’s discretion.
Further, in accordance with judicial restraint, it is not necessary to reach the
issue of whether “the claims of William and Catherine Cowperthwait were clearly
barred by the statute of limitations.” Id. at 269. Therefore, I do not concur with the
majority on this issue.
-4- Justice EARLS dissenting.
I would modify and affirm the decision of the Court of Appeals in this matter.
I agree that the appropriate standard of review of the trial court’s decision to dismiss
the complaint with prejudice is abuse of discretion. However, I find that the trial court
applied the wrong legal standard in assessing the relevant factors under Wilder v.
Wilder, 146 N.C. App. 574 (2001). Because a trial court’s error of law also constitutes
an abuse of discretion, and because questions of law are reviewed de novo, In re
Custodial Law Enf’t Recording, 383 N.C. 261, 268 (2022), I would hold that the trial
court’s order here was an abuse of discretion.
I. Facts & Procedural History
On 9 July 2020, Ian Cowperthwait and his parents, William and Catherine
Cowperthwait (Cowperthwaits), commenced a negligence action against Salem
Baptist Church, Inc. (Salem Baptist) in Superior Court, Forsyth County. This action
stems from a June 2011 incident when Ian, who was a minor at the time, was
allegedly injured while attending an overnight camp on a property owned and
managed by Salem Baptist. Because Ian was eleven years old at the time of the
incident, the statute of limitations was tolled as to his claims until three years after
his eighteenth birthday pursuant to N.C.G.S. § 1-17(a). Therefore, the statute of
limitations expired for Ian’s claims on 9 July 2020.
Since at least 2014, Brotherhood Mutual Insurance Company (Insurance
Company), Salem Baptist’s liability insurer, had been communicating with Ian’s
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Earls, J., dissenting
parents to obtain Ian’s medical records to resolve the claim.1 Two weeks before the
Cowperthwaits filed suit, the Insurance Company made a request for Ian’s medical
records for the purpose of evaluating the Cowperthwaits’ claims. The Cowperthwaits’
attorney assured the Insurance Company that he would provide the documents
promptly. After the Cowperthwaits filed their complaint, the Insurance Company
renewed its request for the medical documents. The Cowperthwaits’ attorney did not
consistently respond to these requests, but in December 2020, he again stated that
he would try to obtain the medical records. The Cowperthewaits, however, did not
produce the documents.
Based upon an agreement between the parties, Salem Baptist filed its answer
in a document dated 4 January 2021, six months after the action was initiated.2 On
the same day, the Insurance Company’s attorney served interrogatories and a formal
request for production of documents. The parties agreed to extend the deadline for
the Cowperthwaits to respond. But the Cowperthwaits failed to respond to the
interrogatories and discovery requests by the 5 March 2021 deadline. In a 12 March
2021 e-mail, Salem Baptist’s counsel asked that opposing counsel complete the
1 The trial court’s findings of fact specify that the Insurance Company and the Cowperthwaits had been in communication since at least 2014. However, there is no evidence in the record of any correspondence between the Insurance Company and the Cowperthwaits before June 2020. 2 Before the action was commenced, counsel for the Cowperthwaits agreed to an
extension of time for Salem Baptist to file an answer “to allow time for records review and possible case resolution.” No further details regarding this extension are in the record other than the fact it was agreed to.
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discovery requests by 19 March 2021 and added that otherwise, “the matter [would]
be ripe for a motion to compel and possible additional relief.” On 19 March 2021, the
Cowperthwaits’ attorney informed Salem Baptist’s counsel for the first time of “severe
communication issues” with Ian due to his inpatient treatment for addiction issues.
Despite this setback, the Cowperthwaits’ attorney said he believed he could provide
verified responses to the discovery requests by the next week. Nonetheless, by 16
June 2021, the discovery requests remained unanswered.
Because of the repeated delays, on 16 June 2021, Salem Baptist filed a motion
to dismiss under Rule 41(b) or, in the alternative, a motion to compel discovery. One
month after this motion was filed, on 15 July 2021, the Cowperthwaits finally
responded to the discovery requests and interrogatories. In total, fifty-nine pages of
medical records were produced; however, these medical records were incomplete, and
no school records were provided.
After hearing the matter on 10 August and 8 September 2021, the trial court
dismissed the Cowperthwaits’ action for failure to prosecute. In its written order, the
trial court applied the three-part test set forth in Wilder, 146 N.C. App. at 578, and
made the following findings and conclusions:
2. The Court finds that the Plaintiffs have unreasonably delayed this matter. Although Ian Cowperthwait has been admitted to [addiction] treatment facilities since April of 2021, no explanation was given for the more than eight months that passed since the filing of the complaint before April of 2021. Moreover, the Court notes that Ian’s parents, William and Catherine Cowperthwait[,] are named Plaintiffs. No explanation has
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been offered for their failure to prosecute the action. 3. The Court finds that the delay has prejudiced the Defendant. The case is already unusually old by virtue of the tolling of the statute of limitations applicable to Ian Cowperthwait due to his minor status (age 11) at the time of the incident. That incident occurred more than ten (10) years ago. The additional year-long delay in prosecuting this action has prejudiced the Defendant by exacerbating the inordinate amount of time since the incident, during which witnesses have moved and witness memories have inevitably faded. 4. Sanctions short of dismissal would be insufficient because the adverse effects of witness unavailability and faded memories that inevitably accompany lengthy periods of time cannot be reversed. Additionally, the court should not be expected to carry a personal injury action over multiple terms due to failure in prosecution.
The Cowperthwaits filed a timely notice of appeal to the Court of Appeals.
A divided panel of the Court of Appeals held that the trial court abused its
discretion by dismissing the matter with prejudice. Cowperthwait v. Salem Baptist
Church, Inc., 290 N.C. App. 262, 269 (2023). The Court of Appeals reasoned that the
trial court improperly considered the time during which the statute of limitations was
tolled, opining that the tolling of the statute of limitations is “not a valid discretionary
basis on which the trial court may dismiss the action for failure to prosecute.” Id. at
268. Thus, the trial court abused its discretion when it dismissed the claim. Id. Chief
Judge Stroud dissented in part, concluding that the plain language of the order
reflected that the order was premised solely on the additional one-year delay caused
by the Cowperthwaits’ failure to obtain and provide the necessary records. Id. at 270–
71 (Stroud, C.J., concurring in result only in part and dissenting in part). Chief Judge
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Stroud concluded that there was no abuse of discretion and accordingly that the
dismissal should have been affirmed. Id. at 272.
The majority further concluded that it would be improper to address whether
the statute of limitations applied to the parents. Id. at 265 n.1. Chief Judge Stroud
also dissented from this point. Id. at 269–70 (Stroud, C.J., concurring in result only
in part and dissenting in part). Salem Baptist filed a timely notice of appeal based on
Chief Judge Stroud’s dissent.
II. Analysis
Salem Baptist challenges two aspects of the Court of Appeals’ decision: (1)
whether the Court of Appeals erred by not reviewing the applicability of the statute
of limitations; and (2) whether the Court of Appeals erred by holding that the trial
court abused its discretion. Regarding the first issue, I agree that it was not raised at
the trial court and is therefore not properly before this Court. See Value Health Sols.,
Inc. v. Pharm Rsch. Assocs., 385 N.C. 250, 272 (2023). To raise an issue on appeal,
parties must present their arguments to the trial court by making a timely request,
motion, or objection, and thereafter obtaining a ruling on that issue. Id.; see also N.C.
R. App. P. 10(a)(1). Merely pleading a statute of limitations defense is insufficient to
preserve the issue for appeal. See Value Health Sols., 385 N.C. at 272 (“While
defendants did plead that some or all of plaintiffs’ claims are time barred, this
argument was not presented to the trial court and no ruling was obtained. Therefore,
we decline to reach the issue . . . .”). The record contains no evidence that Salem
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Baptist made a request, motion, or objection challenging some of the claims as time
barred, nor does the record contain a ruling on any such issues.
A. The Court of Appeals Did Not Err When It Held the Trial Court Abused Its Discretion.
Salem Baptist’s core contention is that the Court of Appeals erred by holding
that the trial court abused its discretion when it dismissed the Cowperthwaits’ claims
with prejudice for failure to prosecute. Under Rule 41(b) of the North Carolina Rules
of Civil Procedure, a defendant may move for dismissal of an action for “failure of the
plaintiff to prosecute.” N.C.G.S. § 1A-1, Rule 41(b) (2023). Unless otherwise specified,
a dismissal for failure to prosecute constitutes an adjudication upon the merits. Id.
But the rule does not define a “failure to prosecute.” Therefore, the Court of Appeals
relied upon its precedent in Wilder, 146 N.C. App. at 578, which prescribes a three-
part analysis that trial courts must conduct before dismissing an action for failure to
prosecute. Under Wilder, a trial court must consider the following factors before
dismissing for failure to prosecute: “(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.” Id. As explained below, the trial court abused its discretion in
applying each of the three Wilder factors. Therefore, the Court of Appeals did not err
in reaching this conclusion. Moreover, we should formally adopt the Wilder factors;
they are analogous to the standards applied under federal rules governing these
circumstances.
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1. Standard of Review
A trial court’s involuntary dismissal under Rule 41(b) is a discretionary ruling.
Whedon v. Whedon, 313 N.C. 200, 213 (1985). Discretionary rulings are reviewed for
an abuse of discretion. Orlando Residence, Ltd. v. All. Hosp. Mgmt. LLC, 375 N.C.
140, 154 (2020). A trial court’s conclusions of law that are unsupported by competent
findings of fact constitute an abuse of discretion. See State v. Corbett, 376 N.C. 799,
819, 820 (2021) (reasoning that the trial court abused its discretion when its
conclusions of law were unsupported by competent findings of fact). A trial court’s
error of law is an abuse of discretion, and questions of law are reviewed de novo. In
re Custodial Law Enf’t Recording, 383 N.C. at 268.
2. The Court of Appeals did not err in ruling that the trial court abused its discretion in applying Wilder.
As noted above, before dismissing a case under Rule 41(b) for failure to
prosecute, the trial court must address the three Wilder factors: “(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.” 146 N.C. App. at 578. The trial
court’s determination of these factors must be supported by findings of fact, and
failure to do so is grounds for reversal. See id. (“[T]he conclusion that there was
prejudice to the defendant is insufficiently supported by factual findings, and must
be vacated.”).
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a. The trial court misapprehended the law, and therefore abused its discretion, in finding that the Cowperthwaits caused an unreasonable delay.
As is implicit with the “failure to prosecute” designation, the Wilder test
requires that the plaintiff have “acted in a manner which deliberately or
unreasonably delayed the matter.” Id. The delay must be caused by the plaintiff
herself, and delays caused by counsel do not give cause to dismiss under Wilder.
Simmons v. Tuttle, 70 N.C. App. 101, 105–06 (1984) (vacating trial court’s dismissal
under Rule 41(b) for failure to prosecute because the delay was not personally caused
by the plaintiff). A plaintiff unreasonably delays a matter by failing to diligently and
responsibly prosecute it. Cf. Spencer v. Albemarle Hosp., 156 N.C. App. 675, 678–79
(2003) (reasoning that there was not an unreasonable delay because no evidence
suggested that the plaintiff was not diligently prosecuting his case). No minimum or
maximum passage of time defines a delay, and the Court of Appeals has held lapses
of time as short as fifteen months to be sufficient to satisfy the delay prong of Wilder.
See, e.g., Cohen v. McLawhorn, 208 N.C. App. 492, 498–99, 505 (2010) (concluding
that the plaintiff’s failure to participate in fifteen months of proceedings constituted
an unreasonable delay).
Unfortunately, North Carolina case law provides no clear guidance on what
specifically constitutes a delay under Wilder beyond a failure to “diligent[ly] and
responsibl[y]” prosecute the case. Spencer, 156 N.C. App. at 679. Nonetheless, the
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Fourth Circuit’s decision in Smink is helpful for our understanding of this issue.3
Smink v. Comm’r, No. 95-2158, 1996 WL 240026 (4th Cir. May 9, 1996) (per curiam)
(unpublished). In examining whether the plaintiffs delayed proceedings through their
conduct, the Fourth Circuit focused on their failure to meet discovery deadlines—
which occurred over a relatively small two-month portion of a total eleven months of
pretrial preparation. See id. at *2 (“[T]he Sminks failed to comply . . . with the
Commissioner’s discovery requests . . . . Further, the Sminks canceled or ignored
appointments and ignored deadlines, document requests, and interrogatories.”).
Thus, it would be appropriate to frame our understanding of delay in this case by
examining the extent of the Cowperthwaits’ failure to meet discovery deadlines, as in
Smink. See id.
In the instant case, the Cowperthwaits were served with interrogatories and a
request for documents on 4 January 2021. The deadline to respond to these requests
was 5 March 2021. These discovery requests were not responded to until 15 July 2021.
However, the trial court excused delays after April 2021 because of Ian
Cowperthwait’s enrollment in in-patient treatment for addiction. Thus, the time
frame during which the Cowperthwaits failed to diligently prosecute the action by
3 Because of the lack of case law from this state, federal precedent is “pertinent for
guidance and enlightenment as we develop the philosophy of our Rules of Civil Procedure.” Slattery v. Appy City, LLC, 385 N.C. 726, 736 n.12 (2024) (cleaned up). Furthermore, Fourth Circuit case law is particularly persuasive because North Carolina is located in the Fourth Circuit and Wilder is partly based on the Fourth Circuit’s test. Wilder, 146 N.C. App. at 577– 78 (quoting the factors set forth in Hillig v. Comm’r, 916 F.2d 171, 174 (4th Cir. 1990)).
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failing to meet requisite deadlines is approximately one month. See id. (reasoning
that the delay caused by failure to meet discovery deadlines was a contributing factor
in the overall pattern of delay leading to dismissal of the action).
Here, the trial court found that the Cowperthwaits unreasonably delayed the
matter for over eight months. But there were no discovery deadlines between July
2020 and March 2021, and so the Cowperthwaits could not cause a delay without
deadlines to ignore. As this Court has recognized, a dismissal with prejudice is a
“harsh sanction” that is “warranted only in extreme circumstances.” Whedon, 313
N.C. at 215 (cleaned up). A one-month delay is not the extreme circumstance that
should qualify as unreasonable, especially in light of the severity of a dismissal with
prejudice. See id. The trial court misapprehended what constitutes a delay under
Wilder—a delay is, at minimum, a disregard of deadlines designed to ensure a timely
resolution of the action.4 See Smink, 1996 WL 240026, at *2 (reasoning that the
plaintiffs caused delay by inter alia failing to meet discovery deadlines).
Although the trial court misapprehended the law, the Court of Appeals held
that it did so in a different manner. In applying its Wilder analysis, the court below
concluded that the trial court’s order mistook the law by considering the time during
4 This is not to say that a delay always requires the disregard of deadlines. The Court
of Appeals has held that protracted and wholesale inaction can qualify as a delay. See, e.g., Greenshields, Inc. v. Travelers Prop. Cas. Co. of Am., 245 N.C. App. 25, 33 (2016) (concluding that over four years of complete inaction in a matter constitutes an unreasonable delay). But this case does not involve total inaction; it centers around dilatory but active proceedings and the “wholesale inaction” approach to the delay element of Wilder is not applicable here.
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which the statute of limitations was tolled.5 See Cowperthwait, 290 N.C. App. at 268.
The plain language of the order, however, focuses on “[t]he additional year-long delay”
from the filing of the suit to the time of dismissal, not the ten-year delay from the
tolling of the statute of limitations. As Chief Judge Stroud correctly wrote in her
dissent, “the trial court properly relied on the period of time between the filing of the
complaint and the ruling on Defendant’s Rule 41 motion.” Id. at 271 (Stroud, C.J.,
concurring in result only in part and dissenting in part).
Although the Court of Appeals’ reasoning was erroneous, the trial court
nonetheless misapprehended the law in applying Wilder to find the one-month delay
unreasonable. Because the trial court misapprehended the delay element of Wilder,
it abused its discretion. See In re Custodial Law Enf’t Recording, 383 N.C. at 268
(explaining that a misapprehension of law is an abuse of discretion).
5 On this point, the Court of Appeals concluded that, as a matter of law, it is improper
to weigh the delay caused by the tolling of the statute of limitations under the Wilder analysis. Neither the Cowperthwaits nor the Court of Appeals identifies case law supporting the proposition that Wilder forbids consideration of delays or prejudice stemming from the tolling of the statute of limitations. Nonetheless, I agree with the Court of Appeals. The General Assembly has made a policy choice regarding the time a minor’s negligence action may be tolled, and this decision should be respected. See N.C.G.S. § 1-17(a)(1) (2023) (allowing tort claims to be tolled for minors until their twenty-first birthday). Punishing the plaintiff for benefiting from the General Assembly’s policy choices regarding the statute of limitations is also inconsistent with the requirement that the plaintiff be personally responsible for any delays—the General Assembly, not the plaintiff, authorized a ten-year delay between the alleged negligence and initiation of the action. See Simmons, 70 N.C. App. at 105–06 (vacating trial court’s dismissal under Rule 41(b) for failure to prosecute because the delay was not personally caused by the plaintiff).
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b. The trial court abused its discretion in finding that Salem Baptist was prejudiced by the delay because there were no findings of fact to support this conclusion.
No specific form of harm or prejudice is necessary to satisfy the second prong
of Wilder, and prejudice has been found in a variety of contexts. See Meabon v. Elliott,
278 N.C. App. 77, 83–84 (noting that if witnesses die or move away, prejudice is
obvious), disc. rev. denied, 379 N.C. 151 (2021); Lentz v. Phil’s Toy Store, 228 N.C.
App 416, 424 (2013) (concluding that cost of defending unnecessarily protracted
litigation was sufficient to satisfy prejudice prong of Wilder); Cohen, 208 N.C. App. at
503–04 (concluding that harm to attorney’s reputation from a protracted malpractice
suit is prejudice that satisfies Wilder). Yet as with any conclusion of law, a finding of
prejudice must be supported by competent findings of fact. See Lauziere v. Stanley
Martin Cmtys., LLC, 271 N.C. App. 220, 227–28 (2020), aff’d per curiam, 376 N.C.
789 (2021).
Here, the trial court concluded that Salem Baptist was prejudiced by the delay
because the delay “exacerbat[ed] the inordinate amount of time since the incident,
during which witnesses have moved and witness memories have inevitably faded.”
But no findings of fact support this conclusion. Looking at the record, the only
scintilla of evidence regarding prejudice comes from the August 2021 hearing. At that
hearing, Salem Baptist referred to the unavailability of witnesses and their fading
memories as justifications to dismiss but gave no specific examples. Again, the trial
court did not make any findings of fact on this point. Nor is there evidence in the
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record to support such a finding.
The present case is very comparable to Lauziere. In that case, the Court of
Appeals reversed a dismissal for failure to prosecute because “[n]o competent
evidence in the Record support[ed] [the conclusion] that Defendants have been
materially prejudiced.” Id. at 224. As the court explained, no competent evidence
supported the contention “that Defendants were prejudiced by the delay, were
wrongfully deprived of a right to direct care, were burdened with substantial
monetary expenses or were unable to recoup the same.” Id. at 227. Here, as in
Lauziere, no competent evidence in the record suggests that Salem Baptist was
prejudiced by the delay. The allegations of witness unavailability and memory loss
are unsupported by the record. For example, there is no evidence of any particular
witness who became unavailable as a result of the month that discovery requests
were delayed, and no findings of fact regarding other evidence that was destroyed
during that period.
Because the trial court’s conclusion of prejudice is unsupported by competent
findings of fact, the trial court abused its discretion in finding that Salem Baptist was
prejudiced by the delay. See Corbett, 376 N.C. at 820.
c. The trial court abused its discretion in finding that alternative sanctions were insufficient because that conclusion was unsupported by findings of fact.
All that is necessary under the third prong of Wilder is that the trial court at
least consider “the reason, if one exists, that sanctions short of dismissal would not
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suffice.” 146 N.C. App. at 578; Ray v. Greer, 212 N.C. App. 358, 364 (“The trial court
is not required to impose lesser sanctions, but only to consider lesser sanctions.”
(quoting In re Pedestrian Walkway Failure, 173 N.C. App. 237, 251 (2005) (first
emphasis omitted))), cert. denied, 365 N.C. 362 (2011). A trial court’s consideration of
alternative sanctions will be affirmed when “it may be inferred from the record that
the trial court considered all available sanctions and the sanctions imposed were
appropriate in light of [the party’s] actions in th[e] case.” In re Pedestrian Walkway,
173 N.C. App. at 251 (2005) (quoting Hursey v. Homes by Design, Inc., 121 N.C. App.
175, 179 (1995) (cleaned up)).
Here, the trial court explained that “[s]anctions short of dismissal would be
insufficient because the adverse effects of witness unavailability and faded memories
that inevitably accompany lengthy periods of time cannot be reversed. Additionally,
the [trial court] should not be expected to carry a personal injury action over multiple
terms due to failure in prosecution.” Although it is clear the trial court considered
lesser sanctions and found them to be futile, no findings of fact support this proffered
reason for dismissal. There is no evidence that witnesses were unavailable or had lost
memories. Therefore, without competent findings of prejudice, the proffered reason
for dismissal is an abuse of discretion, see Corbett, 376 N.C. at 820, and the purported
logistical burden to the trial court is not enough to justify the extreme sanction of
dismissal, see In re Pedestrian Walkway, 173 N.C. App. at 251 (explaining that
affirmance of an order is proper if “the sanctions imposed were appropriate in light
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of [the party’s] actions” during the litigation (cleaned up)).
3. The Court of Appeals did not err in holding that the trial court abused its discretion, and its holding should be modified and affirmed.
As explained above, the trial court abused its discretion in its application of
Wilder. The Court of Appeals reached the same conclusion, albeit for different
reasons. See Cowperthwait, 290 N.C. App. at 268–69. Given this difference in
reasoning but congruence in outcome, I would modify and affirm the decision of the
Court of Appeals. Cf. D.V. Shah Corp. v. VroomBrands, LLC, 385 N.C. 402, 403–05
(2023) (modifying and affirming the decision of the Court of Appeals when this Court
reached the same conclusion but for different reasons).
B. This Court Should Adopt the Wilder Test Because It Is Strongly Supported by Federal Case Law.
Although the trial court abused its discretion under Wilder, it would be
prudent to consider if the Wilder test is the correct analysis to apply in resolving
whether to dismiss for a failure to prosecute. We are not bound by Wilder. See N. Nat’l
Life Ins. Co. v. Lacy J. Miller Mach. Co., 311 N.C. 62, 76 (1984) (“This Court is not
bound by precedents established by the Court of Appeals.”). This Court has never
expressly adopted the Wilder test to determine when a party fails to prosecute a
claim.6 This Court, not the Court of Appeals, has the final say over the laws of North
6 In a per curiam opinion, this Court recently affirmed a decision of the Court of Appeals that applied Wilder. See Lauziere, 271 N.C. App. at 223. While this Court has held that per curiam opinions are binding, State v. Elder, 383 N.C. 578, 598 (2022), the per curiam affirmance of Lauziere never addressed the specifics of the Wilder test. In Lauziere, this Court wrote a single paragraph specifying that the case should comply with particular procedural
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Carolina. Lea Co. v. N.C. Bd. of Transp., 308 N.C. 603, 610 (1983). In light of the
substantial interests at stake, we should bring clarity and finality to how trial courts
weigh dismissals for failure to prosecute. See id.
Rule 41 of North Carolina’s Rules of Civil Procedure is analogous to Rule 41 of
the Federal Rules of Civil Procedure. Compare N.C.G.S. § 1A-1, Rule 41(b) (“For
failure of the plaintiff to prosecute . . . a defendant may move for dismissal of an
action or of any claim therein against him.”) with Fed. R. Civ. P. 41(b) (“If the plaintiff
fails to prosecute . . . a defendant may move to dismiss the action or any claim against
it.”). Thus, in considering whether Wilder is the appropriate approach, we should rely
on federal precedent because such case law is “pertinent for guidance and
enlightenment as we develop the philosophy of our Rules of Civil Procedure.” Slattery
v. Appy City, LLC, 385 N.C. 726, 736 n.12 (2024) (cleaned up). As explained further
below, the Wilder test is reflective of the key considerations weighed by federal courts
and should be employed as this State’s analysis for failure to prosecute issues.
Each federal circuit court deploys a marginally different approach for the
failure to prosecute analysis. See 9 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2370.1 (4th ed. 2004) (last updated June 2024), Westlaw.
rules on remand. 376 N.C. at 789, aff’g per curiam, 271 N.C. App. 220. There is no true decision or reasoning from this Court on Wilder, so we are not bound by stare decisis on this issue. See State v. Ballance, 229 N.C. 764, 767 (1949) (reasoning that where there is no real series of prior decisions, stare decisis does not command adherence to precedent).
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But several common factors are shared amongst the various analyses. See id.
To start, the federal circuits unanimously agree that dismissal with prejudice
for failure to prosecute is an incredibly harsh course of action that should be reserved
only for extreme circumstances. See, e.g., Hernandez v. City of El Monte, 138 F.3d
393, 400 (9th Cir. 1998) (“Because dismissal is a harsh penalty, however, it is
appropriate only in extreme circumstances of unreasonable delay.” (cleaned up)).
Thus, every federal circuit requires the trial court to at least consider alternative
sanctions. See, e.g., Arnold v. ADT Sec. Servs., Inc., 627 F.3d 716, 722 (8th Cir. 2010)
(recognizing that a trial court must consider, among other factors, the efficacy of less
severe sanctions).
The federal circuits further agree that there must be dilatory or delayed
conduct, either intentional or inadvertent, before dismissing for failure to prosecute.
See, e.g., Pomales v. Celulanes Telefónica, Inc., 342 F.3d 44, 48 (1st Cir. 2003) (stating
that “extremely protracted inaction (measured in years)” can justify dismissal with
prejudice for failure to prosecute). Federal courts also recognize that a distinction
should be drawn between the plaintiff’s personal responsibility for the delay and their
attorney’s share of the blame. See, e.g., Carpenter v. City of Flint, 723 F.3d 700, 704
(6th Cir. 2013) (explaining that a plaintiff should not be punished for neglect due
solely to their lawyer’s unexcused and erroneous actions). Additionally, all federal
circuit courts look to the extent of prejudice created by dilatory conduct. See, e.g.,
Attkisson v. Holder, 925 F.3d 606, 625 (4th Cir. 2019) (recognizing that a trial court
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should consider the amount of prejudice to the defendants caused by the inaction of
the plaintiff).
Lastly, although specific considerations are helpful in guiding a trial court’s
ultimate decision, federal circuit courts tend to weigh the totality of the circumstances
when deciding whether to dismiss for failure to prosecute. See, e.g., McMahan v.
Deutsche Bank AG, 892 F.3d 926, 932 (7th Cir. 2018) (“Ultimately, the decision to
dismiss depends on all the circumstances of the case.” (quoting Kasalo v. Harris &
Harris, Ltd., 656 F.3d 557, 561 (7th Cir. 2011))). The federal approaches to the failure
to prosecute analysis are functionalist tests designed to guide, but not dictate, how
trial courts address the issue. See, e.g., Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir.
2008) (“In balancing the [enumerated] factors, we do not have a ‘magic formula’ or
‘mechanical calculation’ . . . . While no single [ ] factor is dispositive, we have also
made it clear that not all of the [ ] factors need be satisfied in order to dismiss a
complaint.” (cleaned up)).
Given this case law, the essential elements of the failure to prosecute analysis
can be summarized as: (1) evidence of delay; (2) the plaintiff’s personal responsibility
for the delay; (3) the amount of prejudice to the defendant; and (4) consideration of
alternative sanctions. And when these factors are compared with Wilder, it is evident
that Wilder is well supported by federal case law. The factors promulgated in Wilder
comport with the common factors utilized across the federal circuit courts. Cf. 146
N.C. App. at 578 (the three-part Wilder test). Given the guidance from the federal
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circuit courts and Wilder’s agreement with the common principles reflected in federal
case law, this Court would be prudent to explicitly adopt the Wilder test.
III. Conclusion
The Court of Appeals did not err as to either issue before this Court. The
statute of limitations defense was not properly preserved for appellate review, so the
Court of Appeals did not err in refusing to address that issue. Furthermore, the trial
court abused its discretion by not following the correct legal standard in applying the
Wilder test. The trial court misapprehended the law regarding the delay prong of
Wilder, and its legal conclusions regarding prejudice and the suitability of lesser
sanctions were unsupported by competent findings of fact. Although the Court of
Appeals reasoned through the failure to prosecute issue differently than I would, it
nonetheless reached the correct holding. For these reasons, I would modify and affirm
the decision of the Court of Appeals and remand the matter to that court for remand
to the trial court for further proceedings.
Justice RIGGS joins in this dissenting opinion.
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