specially concurring.
I join in affirming the district court’s order of dismissal. I write separately, however, because the lead opinion employs two dubious standards in measuring the length of delay attributable to the plaintiffs.
First, the Court equates the length of delay with the entire lifespan of the case. It thereby holds the plaintiffs responsible for an eighteen-month lapse from service of the complaint to the filing of defendant Verner’s answer. My colleagues suggest that the plaintiffs’ acquiescence in this delay constitutes a failure to prosecute under Rule 41(b). I submit that although every plaintiff has a burden of prosecution, a dilatory defendant is not entitled to the windfall of a dismissal with prejudice under Rule 41(b). See, e.g., Rogers v. Kroger Co., 669 F.2d 317 (5th Cir.1982); Finley v. Parvin/Dohrmann Company, Inc., 520 F.2d 386 (2d Cir.1975); Food Basket, Inc. v. Albertson’s, Inc., 416 F.2d 937 (10th Cir. 1969).
Where mutual delay exists, it should be treated by the trial court as a calendar management problem. In today’s era of active caseload administration by judges, litigation rarely should remain dormant so long that dismissal under Rule 41(b) is re*579quired. The court should seize the initiative by conducting status conferences or by notifying the parties that a case appears to be inactive, and that it will be dismissed without prejudice under I.R.C.P. 40(c), unless good cause is shown to retain it on the calendar. Rule 40(c), which has no counterpart in the federal system, is an administrative tool better suited than Rule 41(b) for dealing with delay chargeable to both parties. Unfortunately, as far as the record shows, the trial court did not issue a Rule 40(c) notice in this case.
Accordingly, I believe the Rule 41(b) analysis should be narrowed to the period of approximately thirty months that followed Verner’s filing of an answer and ended with his eventual filing of the successful motion to dismiss. During this period, as the lead opinion observes, the plaintiffs took no “affirmative” action such as initiating discovery or requesting a trial date. On the other hand, the plaintiffs did respond to a discovery request, and they participated in four depositions taken upon notice by Verner. The lead opinion characterizes these activities as mere “defensive responses” and accords them no apparent weight in determining whether the plaintiffs were diligent in their prosecution of the case.
This, I submit, is the second dubious standard. There is no reason to complicate Rule 41(b) by creating a dichotomy between “affirmative” and “responsive” action. When a case is moving forward, it simply is not a candidate for dismissal under the rule. We implicitly acknowledged this point in Grant v. City of Twin Falls, 113 Idaho 604, 746 P.2d 1063 (Ct.App.1987) (petition for review denied), where we overturned the Rule 41(b) dismissal of a case which had become active after a latent period. We did not parse out the plaintiffs’ and defendants’ respective roles in activating the case. To the contrary, we specifically noted that the defendants had filed an answer and had initiated discovery — to which the plaintiffs had responded — before the Rule 41(b) motion was filed. We said these activities by the defendants distinguished the case from earlier reported decisions where Rule 41(b) motions had been preceded by long periods of dormancy. Id. at 607, 746 P.2d at 1066.
The instant case was dormant approximately fourteen of the thirty months that followed Verner’s answer to the plaintiffs’ complaint. Then, as mentioned above, there were several months of activity as the defendants propounded a discovery request and took four depositions. If the defendants’ Rule 41(b) motion had been filed soon after this activity, it might have been doomed to denial under our Grant decision. However, the motion was not filed until yet another dormant period, extending eight months, had elapsed from the last deposition. It might be debated whether such an eight-month hiatus, by itself, would be sufficient to justify a Rule 41(b) dismissal. But when the eight-month interval is viewed in the context of a previous fourteen-month period of dormancy, I believe there is a pattern of neglect cognizable as a failure to prosecute under Rule 41(b).
The remaining questions are whether this failure has been justified and whether it was prejudicial to the defendant. I agree with the lead opinion that the plaintiffs have advanced no persuasive justification for the delay. A presumption of prejudice must follow. As we noted in Rudy-Mai Farms v. Peterson, 109 Idaho 116, 118, 705 P.2d 1071, 1073 (Ct.App.1985), “[prejudice may be presumed to flow from unexcused and unreasonable delay.” The plaintiffs have not attempted to rebut this presumption. Standing unrebutted, the presumption is sufficient to satisfy the prejudice requirement.
Although my analysis is narrower than that contained in the lead opinion, I reach the same conclusion. The requirements for dismissal under Rule 41(b) have been satisfied in this case. Consequently, I join in affirming the trial court’s order of dismissal.