Motion to Dismiss For Failure to Prosecute in Kansas

Understanding the Purpose and Significance of a Motion to Dismiss for Failure to Prosecute

“Subsection (b)(1) of K.S.A. Supp. 60-241 is virtually identical to the involuntary dismissal provision in Rule 41(b) of the Federal Rules of Civil Procedure.” (See Namelo v. Broyles (2004) 103 P.3d 486, 488.)

“Interpreting the federal rule, the United States Supreme Court concluded that a court's authority to dismiss a case for lack of prosecution is an inherent power of the judiciary to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." (See id; Link v. Wabash Railroad Co. (1962) 370 U.S. 626, 630-31, 82 S.Ct. 1386, 8 L.Ed.2d 734.)

“Our Supreme Court has similarly acknowledged such inherent power.” (See Namelo v. Broyles (2004) 103 P.3d 486, 488; Coutts v. Crider, Carter v. State Department of Social Welfare (1976) 219 Kan. 692, 695, 549 P.2d 1019; Reddington v. Rank (1954) 176 Kan. 484, 271 P.2d 807.)

Procedural Steps Involved in Filing a Motion to Dismiss for Failure to Prosecute

Kansas statutes subsection 60-241(b) provides statutory authority for a district court to dismiss an action due to a plaintiff's failure to prosecute the case. (See Namelo v. Broyles (2004) 103 P.3d 486, 488.)

The rule states “for failure of the plaintiff to prosecute or to comply with these sections or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this paragraph and any dismissal not provided for in this section, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under K.S.A. 60-219 and amendments thereto, operates as an adjudication upon the merits.” (See id; Kan. Stat. § 60-241(b)(1).)

“The judge may on the judge's own motion cause a case to be dismissed without prejudice for lack of prosecution, but only after directing the clerk to notify counsel of record not less than 10 days in advance of such intended dismissal, that an order of dismissal will be entered unless cause be shown for not doing so." (See Kan. Stat. § 60-241(b)(2).)

“And dismissal, generally, is to terminate a claim without a hearing, especially before the trial of the issues involved, and without imposing liability on the defendant for the claims in that case.” (See Blue v. Bd. of Shawnee Cnty. Comm'rs (2022) 517 P.3d 1280, 1285; Black's Law Dictionary 589 (11th ed. 2019) [defining ‘dismiss’ and ‘dismissal’].)

“As a result, a dismissal under K.S.A. 2021 Supp. 60-241(b) terminates a case or claim without consideration of the merits. A dismissal of this sort contemplates a lack of action from the party pursuing a claim—first, the claimant fails to comply with either civil rules or fails to prosecute a case; then the defending party seeks dismissal as a result, or the court dismisses the case on its own accord after a party's inaction.” (See Blue v. Bd. of Shawnee Cnty. Comm'rs (2022) 517 P.3d 1280, 1285.)

Discretion of the Court in Deciding a Motion to Dismiss for Failure to Prosecute

"Orders of dismissal for want of prosecution rest in the judicial discretion of the district courts in order that they may control their dockets, eliminate procrastination and delay, and expedite the orderly flow of business, subject, however, to statutory notice requirements. Such orders will not be reversed on appeal in the absence of a clear showing of abuse of judicial discretion." (See Namelo v. Broyles (2004) 103 P.3d 486, 488-89; Frost v. Hardin (1975) 218 Kan. 260, 263, 543 P.2d 941.)

“Judicial discretion is abused only where the court's action is deemed arbitrary, fanciful or unreasonable.” (See id.)

“If reasonable persons viewing the judicial action could differ about the propriety of the action, an appellate court may not declare the action to be an abuse of discretion.” (See id; Shay v. Kansas Dept. of Transportation (1998) 265 Kan. 191, 194, 959 P.2d 849; Hawkins v. Dennis (1995) 258 Kan. 329, 340-41, 905 P.2d 678.)

Legal Precedents and Case Law on a Motion to Dismiss for Failure to Prosecute

It is well settled that “dismissal of a case should only be used as a last resort when other lesser sanctions are clearly insufficient to accomplish the desired end.” (See Canaan v. Bartee (2001) 272 Kan. 720, 729.)

As such, it is also well settled that “courts have the inherent power to dismiss a case because of failure to prosecute with due diligence…however it is also highly important that drastic procedure in dismissing an action involving the rights of citizens be exercised with utmost care." (See City of Overland Park v. Pavelcik (1991) 248 Kan. 444, 448.)