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18 N.C. App. 671

197 S.E.2d 599

Green v. Eure

Court of Appeals of North Carolina · decided 1973-07-11

Key passage — most relied on by later courts

““ ‘[Dismissal is proper only when it has been shown that the Plaintiff intentionally delayed the progress of the action to its conclusion.’ The record is silent as to why the plaintiff was not in Court; and there is no Finding of Fact in the Order of Dismissal that indicates that the Plaintiff intentionally delayed the Court.””

quoted by 3 later decisions, including 176 N.C. App. 748 - In re Will of Kersey, 52 Ill. App. 3d 684 - City of Crystal Lake v. Sak

Relies on Link v. Wabash Railroad

Good law ✅— No negative treatment on recordhow we know

Decided 1973-07-11

How this case has been cited

Cited by 30 later decisions — most recently June 2011 · most notably 146 N.C. App. 574 - Wilder v. Wilder (2001), 145 N.C. App. 621 - Henderson v. Wachovia Bank of North Carolina, N.A. (2001)

30 state decisions

10019731980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

CAMPBELL, Judge.

¶1 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.

¶2 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.

¶3 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].

¶4 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.

¶5 *673 We hold that dismissal of plaintiff’s action was improper.

¶6 Reversed.

Judges Britt and Baley concur.
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