Civil Practice – Rule 41(b) Dismissal – Failure to Prosecute – Prisoner – Attorneys – Legal Malpractice Claim

Cohen v. McLawhorn. (Lawyers Weekly No. 10-07-1214, 21 pp.) (Martha A. Geer, J.) Appealed from Pitt County Superior Court. (William C. Griffin Jr., J.) N.C. App. Click here for the full text of the opinion.

Holding: Even though plaintiff was incarcerated, given that he had an attorney-in-fact, and given his failure to take any action to prosecute this case, his total disregard – despite proper notice – of the calendared trial, the prejudice to defendants of having the allegations pending with no ability to disprove them, and the fact that plaintiff had previously disregarded a mediation order and an official calendar, the trial court’s decision to dismiss the action under N.C. R. Civ. P. 41(b) for failure to prosecute was not unreasonable and, therefore, not an abuse of discretion.

We affirm the Rule 41(b) dismissal of the action.