Mississippi dismissal: the clerk mails the warning twice a year, and you get thirty days

Mississippi runs its docket on a calendar. Twice a year the clerk sweeps for dormant cases and mails a warning, and a case that draws one has thirty days to save itself.

Twelve months of silence, then a notice

Rule 41(d)(1):

In all civil actions wherein there has been no action of record during the preceding twelve months, the clerk of the court shall mail notice to the attorneys of record that such case will be dismissed by the court for want of prosecution unless within thirty days following said mailing, action of record is taken or an application in writing is made to the court and good cause shown why it should be continued as a pending case. If action of record is not taken or good cause is not shown, the court shall dismiss each such case without prejudice.

Three things to take from it.

The clerk acts, not a party. No defendant has to move; the notice goes out because the docket is quiet.

Thirty days from mailing — not from receipt. Diary it from the date on the notice.

Two ways to save the case, and either will do: take action of record, or make a written application to the court showing good cause why it should continue as a pending case. Taking action of record is usually the simpler of the two.

If neither happens, the court "shall dismiss" — but without prejudice, so the claim survives subject to the limitation period.

One small mercy: "The cost of filing such order of dismissal with the clerk shall not be assessed against either party."

The mailing calendar

Rule 41(d)(2) fixes when the sweep happens:

The notice shall be mailed in every eligible case not later than thirty days before June 15 and December 15 of each year, and all such cases shall be presented to the court by the clerk for action therein on or before June 30 and December 31 of each year.

So the cycle is predictable: notices by mid-May and mid-November, and the clerk presents the eligible cases to the court by the end of June and the end of December. A practitioner with a quiet file can work backwards from those dates rather than waiting for the envelope.

The rule keeps the court's hands free between sweeps: "These deadlines shall not be interpreted as a prohibition against mailing of notice and dismissal thereon as cases may become eligible for dismissal under this rule."

Involuntary dismissal and findings

Rule 41(b) covers the motion for failure to prosecute or to comply with the rules or an order, and adds the findings provision for a case tried without a jury: "If the court renders judgment on the merits against the plaintiff, the court may make findings as provided in Rule 52(a)."

Note "may," not "shall" — so a party who wants findings should ask for them.

Voluntary dismissal

Rule 41(a) carries the familiar structure: dismissal by notice before the defendant serves an answer or a motion for summary judgment, or by stipulation of all parties who have appeared, with the two-dismissal rule attaching to a plaintiff who has dismissed the same claim before. Later than that, dismissal is by court order on terms the court considers proper — which is where a defendant who has invested in the case asks for protection.

Costs are a condition, not an afterthought

Mississippi attaches a price to the voluntary route in the opening words of the rule:

Subject to the provisions of Rule 66, or of any statute of the State of Mississippi, and upon the payment of all costs, an action may be dismissed by the plaintiff without order of court

Read where the phrase sits. "Upon the payment of all costs" governs both routes that follow — the notice of dismissal and the stipulation. It is a condition of dismissing without an order, not a consequence the court may impose later.

Most states put the costs question at the far end of the rule, where it applies only if the plaintiff comes back. Mississippi puts it at the front, where it applies whether or not the plaintiff ever refiles.

A plaintiff planning a voluntary dismissal should therefore find out what the costs are before filing the notice, not after.

The case can go while the counterclaim stays

Mississippi's counterclaim provision reaches a different result from most states:

If a counter-claim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action may be dismissed but the counter-claim shall remain pending for adjudication by the court.

Compare the common formulation, where the action shall not be dismissed over the defendant's objection unless the counterclaim can stand alone. Mississippi says the action may be dismissed and the counterclaim "shall remain pending."

So a Mississippi counterclaim is not a lever for keeping the plaintiff's claim alive. It is protected on its own terms: the plaintiff leaves, the counterclaim stays, and the case continues with the parties' roles reversed.

A defendant who wants that outcome should counterclaim before being served with the motion to dismiss.

Refiling can be stopped until you pay for the last one

Rule 41(e) covers the second attempt:

If a plaintiff whose action has once been dismissed in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.

Read with the payment-of-costs condition above, Mississippi asks about costs twice: once when the plaintiff leaves, and again if the plaintiff comes back.

A short checklist

If you are the plaintiff:

1. Work backwards from June 15 and December 15. Those are the sweep dates.
2. Do something of record in any file approaching twelve months of quiet.
3. Diary thirty days from the mailing date if a notice arrives — not from when you read it.
4. Take action of record rather than applying, if you can; it is the simpler route.
5. Make the application in writing if you need to show good cause; the rule requires writing.
6. Remember the dismissal is without prejudice, and check the limitation position before relaxing.

If you are the defendant:

1. Watch the sweep dates in any case that has gone quiet.
2. Ask for terms on a late voluntary dismissal sought by order.
3. Check the plaintiff's dismissal history before a notice of dismissal is treated as harmless.
4. Request findings under Rule 52(a) if you win a Rule 41(b) motion in a bench trial; they are discretionary.

Where these rules live

• Miss. R. Civ. P. 41 — Dismissal of Actions
• Miss. R. Civ. P. 52 — Findings by the Court
• Responding to a Mississippi complaint
• Mississippi motion to dismiss
• Mississippi motion to compel discovery

This page explains what the rules say. It isn't legal advice, and whether a particular filing counts as action of record is a question this page does not answer.