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Copyright (c) 1987 Georgia Law Review Association
Georgia Law Review

NOTE: Dismissal with Prejudice for Failure to Prosecute: Visiting the Sins of the Attorney Upon the Client

Fall 1987

22 Ga. L. Rev. 195




Federal Rule of Civil Procedure 41(b) authorizes the dismissal of a plaintiff's claim for failure to prosecute. 1 A dismissal with prejudice pursuant to Rule 41(b) operates as an adjudication upon the merits unless otherwise specified by the court. 2 Such an involuntary dismissal can result from delays caused solely by the plaintiff's attorney. The standard for dismissal for failure to prosecute is highly discretionary and varied among the circuits. 3 Therefore, it is difficult to predict what degree of dilatory behavior will prompt a dismissal. Moreover, a plaintiff's claim can be dismissed without prior notice to the plaintiff and without a hearing. 4 Hence, a plaintiff's cause of action can be extinguished without inquiry as to the plaintiff's personal responsibility for the delay. It is submitted that the innocent plaintiff needs the protection of procedural devices to prevent involuntary dismissal of his claim. This Note suggests the following as methods to alleviate the potential inequity of extinguishing an innocent plaintiff's cause of action: a uniform standard for dismissal, a hearing on a defendant's motion to dismiss, and direct notice to the plaintiff when the court contemplates dismissal.


The power to dismiss a plaintiff's claim for failure to prosecute has its origins in the common law judgments of nonsuit and non prosequitur. 5 The authority of federal courts to dismiss an action for lack of prosecution is expressly recognized in Rule 41(b) of the Federal Rules of ...
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