In The Supreme Court

Channel Group, LLC, Appellant,


Teresa A. Abbott, Patricia H. Brady, Phillip R. Brady, Bobby L. Coggins, Marquerite A. Chambers, Ramon A. Devia, Eunice Davis, Patricia P. Fuller, Kenneth J. Ferace, Carmellar L. Hall, Kimberly D. Ivester, Maril B. McConnell, Timothy A. McGee, Eula Teresa Powe, Calvin E. Raines, Kelly J. Sanders, Diane J. Smith, Timothy A. Wieczorek and Carol Worthy, Respondents.

BullHead Investments, LLC, Appellant,


Leandro A. and Jenny Blum, Sonya D. Briggs, Kimberly A. Bordes, Henry T. Cheeks, Joseph J. Dougherty, Garry W. Ferrell, Steven S. Killian, JoAnne Moore and Howard J, Wood, Respondents.

Appeal from Greenville County
John C. Few, Circuit Court Judge

Memorandum Opinion No. 2012-MO-004
Submitted December 1, 2011 – Filed March 21, 2012


Richard L. Jackson, of Brock & Scott, of Winston-Salem, for Appellants.

Bobby Coggins, of Simpsonville, Calvin E. Raines, of Greer, Carmellar L. Hall, of Greenville, Carol Worthy, of Greenville, Diane Smith, of Greenville, Eula Teresa Powe, of Taylors, Eunice Davis, of Greenville, Garry Ferrell, of Greenville, Henry Cheeks, of Travelers Rest, Howard J. Wood, of Piedmont, Joseph J. Dougherty, of Simpsonville, Kelly Sanders, of Simpsonville, Kenneth Ferrace, of Greenville, Kimberly A. Bordes, of Greenville, Kimberly Ivester, of Greenville, Leandro and Jenny Blum, of Mauldin, Maril B. McConnell, of Woodruff, Marquerite A. Chambers, of Greenville, Timothy Wieczorek, of Travelers Rest, JoAnne Moore, of Taylors, Patricia Brady, of Simpsonville, Patricia Fuller, of Greenville, Phillip Brady, of Simpsonville, Ramon Devia, of Greer, Sonya D. Biggs, of Greenville, Steven S. Killian, of Simpsonville, Teresa A. Abbott, of Greer, Timothy McGee, of Travelers Rest, for Respondents.

CHIEF JUSTICE TOAL: The sole issue in this case is whether it was an abuse of discretion for a circuit court judge to dismiss certain cases for want of prosecution, rather than ruling on the summary judgment motions submitted by the Appellant.  We vacate the dismissal orders and remand the cases for further proceedings.

Facts/ Procedural Background

Channel Group, LLC, (Appellant), the purchaser of credit accounts in default, filed debt collection actions in circuit court against each of the Respondents.[1]   Respondents did not file answers or other pleadings in response to their respective complaints.  Instead of filing motions for default judgment in response to Respondents' failures to answer, Appellant filed and served motions for summary judgment in each action, together with motions to recoup attorney's fees, and paid the appropriate motion fees.

The circuit court judge did not enter orders on any of the motions for summary judgment, but instead entered orders dismissing the actions for want of prosecution.[2]  The orders dismissing these actions operated as dismissals with prejudice.  See Rule 41(b), SCRCP ("Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule . . . operates as an adjudication upon the merits.").  The order of dismissal in Ms. Abbott's case did not address the Motion for Summary Judgment filed by Appellant, but instead stated: "This simple collection case has been pending since December 19, 2008.  No answer was ever filed, and yet the Plaintiff has not moved for default judgment.  There is no legitimate excuse for Plaintiff to fail to file a request for default judgment in this time frame."  These civil actions have been consolidated for appellate review.

Issue Presented

Whether it was an abuse of discretion for a circuit court judge to dismiss cases for want of prosecution, rather than ruling on Appellant's motions for summary judgment.

Standard of Review

Whether an action should be dismissed for failure to prosecute is left to the discretion of the trial court judge, and his decision will not be disturbed except upon a clear showing of an abuse of discretion.  Small v. Mungo, 254 S.C. 438, 442, 175 S.E.2d 802, 804 (1970). 


It is within a trial judge's inherent power to dismiss actions sua sponte for a party's failure to prosecute the relevant claims.  Crestwood Golf Club, Inc. v. Potter, 328 S.C. 201, 211, 493 S.E.2d 826, 832 (1997).  Although a trial judge enjoys broad discretion in her decision to dismiss a case, "[i]t is of course contemplated that the . . . rule will be reasonably applied so as to accomplish its purpose of expediting the orderly disposition of litigation on the merits."  Mungo, 254 S.C. at 442–43, 175 S.E.2d at 804.  This Court views the dismissal of a case with prejudice as an especially harsh sanction.  See id. at 443–44, 175 S.E.2d at 804 (finding the court's dismissal of an action with prejudice was unjustified and modifying the order to a dismissal without prejudice); see also McComas v. Ross, 368 S.C. 59, 61, 626 S.E.2d 902, 904 (Ct. App. 2006) (trial judge alters dismissal with prejudice to dismissal without prejudice to lessen the sanction).

In McCargo v. Hedrick, 545 F.2d 393 (4th Cir. 1976), the United States Court of Appeals for the Fourth Circuit outlined four factors that should be considered when determining whether a dismissal was proper under Rule 41(b) of the Federal Rules of Civil Procedure.[3]  Id. at 396.  First, dismissal is only proper when there has been a "'clear record of delay or contumacious conduct by the plaintiff.'"  Id. (quoting Reizakis v. Loy, 490 F.2d 1132, 1135 (4th Cir. 1974)).  Second, the court should consider the amount of prejudice caused the defendant by the delay.  McCargo, 545 F.2d at 396.  Third, the reviewing court should look at whether "the record indicated a 'drawn out history' of 'deliberately proceeding in a dilatory fashion.'"  Id. (quoting Reizakis, 490 F.2d at 1135) (emphasis added).  Lastly, the court should look at whether the trial court considered sanctions less drastic than dismissal.  McCargo, 545 F.2d at 396.  In concluding that "the balance tips in favor of a trial on the merits rather than dismissal for want of prosecution," the McCargo court relied heavily on communications contained in the record.  See id.

Considering the four factors outlined in McCargo, we find the dismissal of these cases for want of prosecution amounts to an abuse of discretion.  First, there is no clear record that the Appellant has engaged in contumacious conduct or delay tactics.  The only account this Court has of the proceedings is the Summons and Complaint, the Motion for Summary Judgment, and the Order of Dismissal filed in Ms. Abbott's action.  These documents give the Court no indication that Appellant was engaging in delay tactics or stubborn behavior.  Second, the Appellant's delay in filing even the motions for summary judgment did not prejudice Respondents, as the sum total of the money sought did not increase from the time of filing the complaints to the time of the dismissals.  Third, the Record does not illuminate a drawn out history of Appellant deliberately proceeding in a dilatory fashion.  Lastly, we find the sanction of dismissing all thirty cases with prejudice was unduly harsh when the Record supports that, rather than sitting on its laurels, Appellant filed motions for summary judgment to move these cases forward.


Based on the foregoing, we find the dismissal of these cases with prejudice was an unduly harsh sanction, constituting an abuse of discretion.  Therefore, we vacate these orders and remand these cases for appropriate proceedings.


[1] This case is a consolidation of thirty separate debt collection actions. No Respondent has filed a brief in this case.

[2] The Record only includes the Complaint, Motion for Summary Judgment, Order, and other documents associated with the debt collection action against the first named respondent in this consolidated case, Teresa A. Abbott.  These documents are primarily pre-printed forms with the applicable information filled in, and we take notice that the court documents in the remaining 29 debt collection actions are materially similar.

[3] Rule 41(b) of the South Carolina Rules of Civil Procedure is substantially similar to the federal rule.