IN THE SUPREME COURT OF MISSISSIPPI
NO. 2013-CA-00414-SCT
JAMES ALLEN BURCH, WILLIAM HAROLD
BURCH, AND NANCY BURCH MCCLOUD, AS
WRONGFUL DEATH BENEFICIARIES OF
HAROLD E. BURCH, DECEASED
v.
ILLINOIS CENTRAL RAILROAD COMPANY
DATE OF JUDGMENT: 02/12/2013
TRIAL JUDGE: HON. JEFF WEILL, SR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: JOHN TIMOTHY GIVENS
TIMOTHY W. PORTER
PATRICK C. MALOUF
ATTORNEY FOR APPELLEE: STEPHANIE CAMILLE REIFERS
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED - 04/24/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE DICKINSON, P.J., LAMAR AND COLEMAN, JJ.
COLEMAN, JUSTICE, FOR THE COURT:
¶1. Plaintiffs filed a wrongful death suit against Illinois Central for the death of their
father. The case was dismissed because the three-year statute of limitations had run.
Plaintiffs appealed, claiming that the statute of limitations had not expired, because it was
tolled while the first suit, filed by the plaintiffs’ mother, was pending.
Facts and Procedural History
¶2. Harold Burch worked for Illinois Central Railroad Company from 1950 to 1983. The
plaintiffs claim that Harold was exposed to asbestos during that time. Harold was diagnosed
with asbestosis and lung cancer, and he died in August 2006. Harold’s widow, Frances
Burch, individually and on behalf of Harold’s wrongful death beneficiaries, filed suit against
Illinois Central in April 2009. Frances died in September 2011 while the suit was pending,
and Illinois Central filed a suggestion of death. Frances’s attorneys failed to file a motion
for substitution of parties within ninety days as required, so Illinois Central filed a motion
to dismiss. Frances’s counsel did not respond to the motion to dismiss until five months
later, after being ordered to do so by the court. After a hearing, the case was dismissed
without prejudice in September 2012. The following day, Harold’s children filed a second
complaint as Harold’s wrongful death beneficiaries. Illinois Central moved to dismiss,
asserting that the statute of limitations had expired. The plaintiffs claimed that the statute of
limitations had not expired because it had been tolled during the pendency of the first
lawsuit. The circuit court found that the statute of limitations had run, and the case was
dismissed. The plaintiffs appealed.
Discussion
¶3. The issue on appeal is whether the doctrine of equitable tolling applied and tolled the
statute of limitations while the first suit was pending. The standard of review for a trial
court’s grant or denial of a motion to dismiss is de novo. Foss v. Williams, 993 So. 2d 378,
382 (¶ 17) (Miss. 2008) (quoting Burleson v. Lathem, 968 So. 2d 930, 932 (Miss. 2007)).
The de novo standard also applies to the application of a statute of limitations, which is a
question of law. Sarris v. Smith, 782 So. 2d 721, 723 (¶ 6) (Miss. 2001) (citing ABC Mfg.
Corp. v. Doyle, 749 So. 2d 43, 45 (Miss. 1999)).
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¶4. The time limit for filing a claim under the Federal Employers Liability Act (FELA)
is “three years from the day the cause of action accrued.” 45 U.S.C. § 56 (2006). Frances
timely filed the original complaint within the three-year statute of limitations. Plaintiffs
maintain that the statute of limitations was tolled while Frances’s case was pending;
therefore, when the plaintiffs filed the second complaint one day after the first suit was
dismissed, they were still within the statute of limitations. Illinois Central argues that the
doctrine of equitable tolling does not apply because the plaintiffs “slept on their rights,” the
result of which was having the first suit dismissed for failure to substitute parties. Thus, it
is Illinois Central’s position that the statute of limitations had expired by the time the
plaintiffs filed the second complaint more than six years after Harold died.
¶5. Illinois Central relies on the case of Price v. Illinois Central Gulf Railroad Co., 584
So. 2d 1279 (Miss. 1991). In 1986, Stephen Price filed suit against Illinois Central in
Alabama, but he died several months later while the suit was pending. Price, 584 So. 2d at
1280. Illinois Central filed a suggestion of death, but no one was substituted, and the case
was dismissed without prejudice. Id. On interlocutory appeal, the Alabama Supreme Court
ordered that the suit be dismissed with prejudice. Id. While the interlocutory appeal was
pending in Alabama, Price’s widow filed suit against Illinois Central in Louisiana. Id. After
the Alabama case was dismissed with prejudice, the Louisiana case was dismissed on the
ground of res judicata. Id. Before the Louisiana case was dismissed, but after the expiration
of the statute of limitations, Price’s widow filed a third suit in Mississippi. Id. The
Mississippi case was dismissed as barred by the three-year statute of limitations for FELA
cases. Id. at 1281. This Court affirmed the dismissal. Id. at 1282.
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¶6. The Price Court discussed Burnett v. New York Central Railroad Co., 380 U.S. 424
(1965), in which the Supreme Court held that “when a plaintiff begins a timely FELA action
in a state court of competent jurisdiction . . . and the state court action is later dismissed
because of improper venue, the FELA limitation is tolled during the pendency of the state
action.” Burnett, 380 U.S. at 428. In determining whether the statute of limitations should
be tolled, the Supreme Court wrote that “the basic inquiry is whether congressional purpose
is effectuated by tolling the statute of limitations in given circumstances.” Id. at 427. Thus,
the statute of limitations will not be tolled in every circumstance in which the original
complaint was timely filed; rather, the courts must consider the circumstances at issue and
whether tolling would effectuate the congressional purpose of the statute. The Court went
on to explain:
Statutes of limitations are primarily designed to assure fairness to defendants.
Such statutes promote justice by preventing surprises through the revival of
claims that have been allowed to slumber until evidence has been lost,
memories have faded, and witnesses have disappeared. The theory is that even
if one has a just claim it is unjust not to put the adversary on notice to defend
within the period of limitation and that the right to be free of stale claims in
time comes to prevail over the right to prosecute them. . . . Moreover, the
courts ought to be relieved of the burden of trying stale claims when a plaintiff
has slept on his rights.
Id. at 428 (citations omitted). The Burnett Court applied the doctrine of equitable tolling
because the plaintiff “did not sleep on his rights but brought an action within the statutory
period in a state court of competent jurisdiction.” Id. at 429. Such was not the case in Price,
and this Court held that to apply equitable tolling in Price “would broaden considerably” the
doctrine as applied in Burnett. Price, 584 So. 2d at 1282. Thus, the Court affirmed
dismissal of the action because the statute of limitations had expired. Id.
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¶7. Although not in a FELA case, this Court has held that “when an action is dismissed
without prejudice for failure to prosecute, the statute of limitations does not toll, and the
parties are left in the same position as if they had never filed the action.” Knight v. Knight,
85 So. 3d 832, 837-38 (¶ 30) (Miss. 2012).1 The Knight Court reasoned that “[a]llowing the
statute to toll in such a situation presents an opportunity for abuse of process, potentially
allowing cases to be dismissed and refiled for a period of years or even decades[, which]
would reward plaintiffs who sleep on their rights and would lead to unjust results.” Id.
Notably, the Court concluded by writing:
This holding, however, does not mean that all cases dismissed without
prejudice after the statute of limitations has expired cannot be refiled. Some
will be revived by the savings statute,[2] equitable tolling, or otherwise. Our
1
The Knight Court cited several cases from other states in which the courts reached
this conclusion. See Knight, 5 So. 3d at 836-37 (¶¶ 27-29) (citing, inter alia, King v. Lujan,
646 P.2d 1243, 1244-45 (N.M. 1982) (“. . . we adopt the view that even though the filing of
a suit ordinarily tolls the applicable limitations period, when an action is dismissed without
prejudice because of a failure to prosecute, the interruption is considered as never having
occurred. . . . A party who has slept on his rights should not be permitted to harass the
opposing party with a pending action for an unreasonable time. . . . Furthermore, the courts
should not distinguish between a plaintiff who takes no action before the limitations period
expires and a plaintiff who files a complaint before the period expires but who thereafter
takes no action.”); Suppeland v. Nilz, 623 P.2d 832, 835 (Ariz. Ct. App. 1980) (“even
though the filing of a suit ordinarily tolls the applicable limitations period, when an action
is dismissed without prejudice because of a failure to prosecute, the interruption is
considered as never having occurred”); Shaw v. Corcoran, 570 S.W.2d 96, 98 (Tex. App.
1978) (same); Owens v. Weingarten’s Inc., 442 F. Supp. 497, 498 (W.D. La. 1977) (same).
2
Mississippi’s savings statute gives plaintiffs an additional year to “commence a new
action for the same cause” if the original case is dismissed due to “the death of any party
thereto, or for any matter of form.” Miss. Code Ann. § 15-1-69 (Rev. 2012). The savings
statute does not help the plaintiffs here, however, because the United States Supreme Court
has held that states’ savings statutes do not apply to FELA cases. Price, 584 So. 2d at 1281
(discussing Burnett, 380 U.S. at 432-33).
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narrow holding here is merely that dismissal without prejudice for want of
prosecution does not toll the statute of limitations.
Id. at 838 (¶ 31).
¶8. According to Rule 25 of the Mississippi Rules of Civil Procedure, upon the death of
one party, a “motion for substitution” must be made “within ninety days after the death is
suggested” or “the action shall be dismissed without prejudice.” Miss. R. Civ. P. 25(a)(1).
The comment to that rule provides:
The general provisions of MRCP 6(b) apply to motions to substitute;
accordingly, the court may extend the period for substitution if timely
requested. Similarly, the court may allow substitution to be made after the
expiration of the ninety day period on a showing that the failure to act earlier
was the result of excusable neglect.
Miss. R. Civ. P. 25(a)(1) cmt. This Court recently defined “excusable neglect” under Rule
25, applying principles that have long applied in the context of Rule 4:
[S]imple inadvertence, mistake of counsel, or ignorance of the rules usually
does not constitute excusable neglect. Stutts v. Miller, 37 So. 3d 1, 4 (¶ 9)
(Miss. 2010); Holmes v. Coast Transit Auth., 815 So. 2d 1183, 1186 (¶ 11)
(Miss. 2002). Excusable neglect is “a very strict standard.” Webster v.
Webster, 834 So. 2d 26, 29 (¶ 11) (Miss. 2002). Good cause and excusable
neglect have been linked inexorably to one another, as a showing of good
cause has been said to require at least as much as a showing of excusable
neglect. Id. at 28 (¶ 4).
Clark v. Knesal, 113 So. 3d 531, 539-40 (¶ 29) (Miss. 2013).
¶9. Frances’s counsel did not attempt to show good cause for failing to substitute a party.
In their response to Illinois Central’s motion to dismiss – filed more than five months after
the motion to dismiss was filed and nearly ten months after Frances died – counsel simply
said that they had drafted but had failed to file a motion for substitution and that failure to
do so had been merely an oversight. As set forth above, the Court has held that inadvertence
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and mistake of counsel do not constitute excusable neglect. Clark, 113 So. 3d at 539-40 (¶
29) (citations omitted). That is precisely what the trial judge held when he dismissed the first
case, writing in the order that “[o]versight is not normally considered by the courts to be
excusable neglect.” We apply “an abuse of discretion standard to a trial court’s findings of
fact concerning the existence or lack of good cause or excusable neglect.” Clark, 113 So.
3d at 539 (¶ 28) (citing Long v. Mem’l Hosp. at Gulfport, 969 So. 2d 35, 38 (¶ 5) (Miss.
2007)). And we cannot say that the trial judge abused his discretion in finding that there was
no excusable neglect.
¶10. Harold died on August 31, 2006. Frances timely filed suit against Illinois Central on
April 2, 2009. Frances died on September 16, 2011. After not hearing from her attorneys,
Illinois Central filed a suggestion of death on October 28, 2011. No party was substituted
for Frances; in fact, her attorneys did not even respond to the suggestion of death. The
ninety-day period for substituting a party expired on January 26, 2012. On February 10,
2012, Illinois Central filed a motion to dismiss. Again, there was no response. Counsel for
Frances did not reappear until July 11, 2012, after the court ordered them to respond to the
motion to dismiss. After the trial judge dismissed the first suit, plaintiffs’ counsel quickly
filed the second complaint the next day, September 20, 2012. However, they immediately
became unresponsive again. Illinois Central filed a motion to dismiss the second suit on
October 23, 2012, but plaintiffs’ counsel did not respond until January 31, 2013, four days
before the hearing on that motion. Under these circumstances, the trial judge did not find
evidence to support the plaintiffs’ argument regarding the doctrine of equitable tolling. In
essence, the plaintiffs “slept on their rights” by failing to substitute a party for Frances,
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ignoring the suggestion of death, and ignoring the motion to dismiss. Relying on Price, the
trial judge concluded that the statute of limitations had not been tolled, and the case was
dismissed. We hold that the trial court did not err in finding that the doctrine of equitable
tolling should not be applied and that the statute of limitations had expired when the plaintiffs
filed the second complaint.
Conclusion
¶11. We affirm the trial court’s dismissal of the case on the grounds that, because the
doctrine of equitable tolling did not apply, the statute of limitations had expired by the time
the plaintiffs filed the second complaint.
¶12. AFFIRMED.
WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, AND
KING, JJ., CONCUR. RANDOLPH, P.J., AND PIERCE, J., NOT PARTICIPATING.
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