July 13, 1978


TO: Magistrates
FROM: Neal Forney, Assistant Director
RE: Dismissal of Civil Proceedings Because of Neglect by the Plaintiff

In many cases persons who have initiated civil actions in the magistrate courts neglect to proceed in their complaint against the defendant or to come to court. Magistrates are sometimes confused about the procedure to be followed in these situations. The Office of the Attorney General has provided an Opinion about the authority of magistrates to dismiss civil actions in these cases.

The conclusion of the Opinion is that aside from any statute or rule of practice, the power of trial courts to dismiss a civil case for failure by the plaintiff to prosecute with due diligence is generally considered inherent and independent of any statute or rule of court. In accordance with this general rule, magistrates have the authority to dismiss a civil action in cases where the plaintiff neglects to proceed in the cause against the defendant as may be necessary or to appear at the trial.

Magistrates are reminded that the general rule mentioned above has application only in civil cases. This rule does not apply in criminal cases.

A copy of this Opinion will be provided to you upon request.