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Law School Case Brief

Boston v. Buchanan - 2003 OK 114, 89 P.3d 1034

Rule:

Rule 9(b) of the Rules for the District Courts provides that where an action is not diligently prosecuted, the court may require the plaintiff to show why the action should not be dismissed. If the plaintiff does not show good cause why the action should not be dismissed, the court shall dismiss the action without prejudice. A court shall dismiss actions in which no action has been taken for a year as provided in Okla. Stat. tit. 12, § 1083.

Facts:

Husband and wife brought a medical malpractice action in the District Court of Oklahoma County. Defendants answered, discovery occurred, and then nothing was filed in the matter for approximately 20 months. The district court issued a notice of intent to dismiss for failure to diligently prosecute and thereafter dismissed the action for that reason pursuant to Rule 9(b) and/or § 1083, whichever was applicable. Husband and wife appealed, and the Court of Civil Appeals affirmed the dismissal. Another appeal was made by writ of certiorari.

Issue:

Was dismissal for failure to diligently prosecute pursuant to § 1083 proper to the case at bar? 

Answer:

No.

Conclusion:

The Supreme Court of Oklahoma concluded that the first two sentences of Rule 9(b) were authority for a trial court to dismiss an action independent of applying § 1083. Because the record showed that the trial court was using § 1083 as a standard for dismissing the action, as opposed to the common-law standards for dismissing an action pursuant to the first two sentences of Rule 9(b), the court declined to address whether the case was proper for dismissal in advance of the trial court's determination of the issue. The court found that the case was at issue, answers had been filed, and § 1083 did not apply. Because § 1083 did not apply to the case, and because the trial court erroneously used the § 1083 criteria, as opposed to the common-law standards or dismissing an action pursuant to the first two sentences of Rule 9(b), the court vacated the opinion of the lower appellate court, reversed the judgment of the trial court, and remanded the matter for further proceedings.

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