Green v. Eure

197 S.E.2d 599, 18 N.C. App. 671, 1973 N.C. App. LEXIS 1976

• Court: Court of Appeals of North Carolina
• Decided: July 11, 1973
• Docket: 7310SC324
• Status: Published

Opinion

CAMPBELL, Judge.

North Carolina Civil Procedure Rule 41(b), substantially the same as its federal counterpart, authorizes dismissal with prejudice of a plaintiff’s claim for failure to prosecute. It was held in Link v. Wabash R. Co., 370 U.S. 626, 8 L.Ed. 2d 734, 82 S.Ct. 1386 (1962), that courts have inherent power to dismiss stale actions, even on their own motion, and without notice or hearing by the parties if the circumstances indicate a knowledge of the party of the consequences of his own conduct.

The courts, however, are primarily concerned with trial of causes on their merits. Therefore, mere lapse of time does not justify dismissal if the plaintiff has not been lacking in diligence. Expedition for its own sake is not the goal. Thus in the Link case the Supreme Court was careful to detail the six-year delay in prosecution and to review facts from which it could reasonably be inferred that the plaintiff had been deliberately proceeding in dilatory fashion.

Dismissal for failure to prosecute is proper only where the plaintiff manifests an intention to thwart the progress of the action to its conclusion, or by some delaying tactic plaintiff fails to progress the action toward its conclusion. 5 Moore’s Federal Practice, Paragraph 41.11 [2].

In the instant case plaintiff’s failure to proceed did not arise out of a deliberate attempt to delay, but out of misunderstanding. Plaintiff assumed that upon filing the action, it would be calendared by the Clerk of Superior Court of Wake County and the Wake County Calendar Committee as provided by Rule 2 of the General Rules of Practice for the Superior and District Courts.

We hold that dismissal of plaintiff’s action was improper.

Reversed.

Judges Britt and Baley concur.