Motion to Dismiss For Failure to Prosecute in South Carolina

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

“Courts must have the authority to dismiss a case in the event a plaintiff unreasonably neglects to prosecute if courts are to maintain control of their dockets.” (See Don Shevey & Spires, Inc. v. Am. Motors Realty Corp. (1983) 279 S.C. 58, 60, 301 S.E.2d 757, 758; S.C. Pub. Interest Found. v. Richland Cnty. (2021) 436 S.C. 271, 279.)

“Pursuant to Rule 37(b)(2)(C), SCRCP, when a party fails to obey an order to provide or permit discovery, the court may 'make such orders in regard to the failure as are just,' including an order dismissing the action or proceeding, or any part thereof.” (See Innovative Waste Mgmt. v. Crest Energy Partners GP, LLC, No. 2023-UP-126, at *8 (S.C. Ct. App. Mar. 29, 2023); Barnette v. Adams Bros. Logging, Inc. (2003) 355 S.C. 588, 595, 586 S.E.2d 572, 575.)

“A sanction that results in a default or dismissal is a severe punishment that should be imposed only if there is some showing of bad faith, willful disobedience, or gross indifference to the rights of the adverse party.” (See Rickerson v. Karl (2015) 412 S.C. 215, 221.)

“In McComas v. Ross, this court surveyed precedent and said dismissals for failure to prosecute typically involved things like repeated warnings to the offending party, multiple opportunities to proceed with trial, unreasonable neglect, or deliberate indifference to the defendant's rights.” (368 S.C. 59, 62-63, 626 S.E.2d 902, 904 (Ct. App. 2006); see also S.C. Pub. Interest Found. v. Richland Cnty. (2021) 436 S.C. 271, 279.)

Rules for a Motion to Dismiss for Failure to Prosecute

Rule 41(b) of the South Carolina Rules of Civil Procedure governs motions to dismiss for failure to prosecute.

“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 against him.” (See S.C. R. Civ. P. 41(b).)

“After the plaintiff in an action tried by the court without a jury has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.” (See id.)

“The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a).” (See id.)

“Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for failure to join a party under Rule 19, operates as an adjudication upon the merits.” (See id.)

Factors a Court Considers when Deciding a Motion to Dismiss for Failure to Prosecute

“The Fourth Circuit has said the trial court must consider four factors before dismissing a case for failure to prosecute:

1. the plaintiff's degree of personal responsibility;
2. the amount of prejudice caused the defendant;
3. the presence of a drawn out history of deliberately proceeding in a dilatory fashion; and
4. the effectiveness of sanctions less drastic than dismissal.”

(See McComas v. Ross (2006) 368 S.C. 59, 63; Stone Int'l v. Byte Software, LLC, No. 2022-UP-077, at *2 (S.C. Ct. App. Feb. 16, 2022).)

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

“The court in McCargo v. Hedrick,545 F.2d 393, 396 (4th Cir. 1976) held that dismissal is a harsh sanction, which should be resorted to only in extreme cases.” (See McComas v. Ross (2006) 368 S.C. 59, 63.)

“Dismissal is generally permitted only in the face of a clear record of delay or contumacious conduct by the plaintiff.” (See id.)

“The discretion should be exercised discreetly and only after due consideration of the availability of sanctions less severe than dismissal.” (See id; Bush v. U.S. Postal Serv. (1974) 496 F.2d 42, 44.)

“When reviewing a motion to dismiss for failure to prosecute pursuant to Rule 41(b), SCRCP, an appellate court may reverse the trial court's decision upon an abuse of discretion.” (See In re Miller (2011) 393 S.C. 248, 256; McComas v. Ross (2006) 368 S.C. 59, 62, 626 S.E.2d 902, 904.)

"An abuse of discretion occurs when the conclusions of the trial court are either controlled by an error of law or are based on unsupported factual conclusions." (See id; Kiriakides v. Sch. Dist. of Greenville County (2009) 382 S.C. 8, 20, 675 S.E.2d 439, 445.)

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

It is well settled that “rule 40(b) of the South Carolina Rules of Civil Procedure provides ‘[t]he first 20 cases on the Jury Trial Roster at the opening of court on the first day of a term, excluding those previously dismissed, continued or otherwise resolved before the opening of that term of court, may be called for trial.’ For failure of the plaintiff to prosecute or to comply with these rules . . . a defendant may move for dismissal of an action or of any claim against him." (See Rule 41(b), SCRCP; McComas v. Ross (2006) 368 S.C. 59, 62.)

It is also well settled that “the plaintiff has the burden of prosecuting her action, and the trial court may properly dismiss an action for plaintiff's unreasonable neglect in proceeding with her cause. In those cases where our supreme court has affirmed dismissal of actions based on a failure to prosecute, the dismissals were imposed to maintain the orderly disposition of cases in the face of repeated warnings to the offending party or multiple opportunities to proceed with trial, and only then upon a finding of unreasonable neglect.” (See McComas v. Ross (2006) 368 S.C. 59, 62; Don Shevey Spires, Inc. v. Am. Motors Realty Corp. (1983) 279 S.C. 58, 60, 301 S.E.2d 757, 758.)