NO. 88-270
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
MARGIE P. COOK, FLOYD A. RROWER,
NORMA YOUNT and NORMA YOUNT as
Personal Representative of the
Estate of Wilbur J. Yount,
Plaintiffs and Appellants,
-vs-
FERGUS ELECTRIC COOPERATIVE, INC. ,
a Montana corporation,
Defendant and Respondent.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Chan Ettien, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Floyd A. Rrower, Roundup, Montana
For Respondent:
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'$erndon, Hartman, Sweeney & Halverson; Donald R.
1-1 :Herndon, Rillings, Montana
Submitted on Briefs: Nov. 3, 1988
Decided: December 15, 1988
Filed:
--
Clerk
Mr. Justice I . C. Gulbrandson delivered the Opinion of the
,
Court.
This is an appeal from the Tenth Judicial District,
Fergus County, Montana, of that court's order dismissinq
plaintiff 's suit for failure to prosecute, pursuant to Rule
41(b), M.R.Civ.P. We affirm.
This case and a companion case, Timber Tracts, Inc. v.
Fergus Electric Cooperative, Inc. (Mont. L988), 753 P.2d 854,
45 St.Rep. 415, (Timber Tracts) arose from plaintiffs' claim
that the defendant had agreed to extend electrical service to
pl-aintiffs' properties at no cost. Subsequent to the alleged
agreement, the bylaws of the electrical co-op were changed to
provide that fees would be charged for extending said
electrical service. As a result of the change, plaintiffs in
the instant action and in Timber Tracts filed suit seeking
enforcement of the alleged agreement. The Timber Tracts case
was filed in Fergus County on June 16, 1981, the instant case
was filed in Musselshell County on October 31, 1983.
Defendant Fergus Electric Cooperative, Inc. (Fergus)
moved for dismissal of both actions on June 3, 1987 for
failure to prosecute, pursuant to Rule 41 (b), M. R. Civ.I?.
Subsequent to a hearing on July 1, 1987, the Timber Tracts
case was dismissed by the District Court in an order issued
August 27, 1987. This Court affirmed that dismissal in an
opinion issued March 3, 1988. The hearing on the motion to
dismiss in the instant case was held on August 11, 1987, and
a memorandum opinion was issued on April 26, 1988, dismissing
the action pursuant to Rule 41(b), M.R.civ.P.
Plaintiffs filed their notice of appeal on May 23,
1988. Pursuant to a stipulation between the parties at the
hearing on August 11, 1987, the District Court file for the
Timber Tracts case was incorporated into the District Court
file for the instant case. Because of that stipulation to
include the Timber Tracts file, we find it necessary to
examine the course of litigation from the filing of the
Timber Tracts complaint in 1981.
The factual basis upon which this Court affirmed the
dismissal of the Timber Tracts case is summarized on page 855
of that opinion:
The plaintiff conducted a minimal amount
of preparation for litigation in the six
years and two months that this cause was
alive. It issued one set of
interrogatories to defendant in December
1981 (five and one-half months after it
filed its complaint); it noticed the
taking of the deposition of Clovis W.
Rader on November 17, 1981 (five months
after filing the complaint) , and took
that deposition on December 4, 1981 (five
and one-half months after the filing of
the complaint); it noticed the taking of
depositions of seven current and former
directors of the defendant-corporation on
January 8, 1982 (nearly seven months
after filing its complaint) , but never
took their depositions; it argued against
defendant's motion for a protective order
on January 14, 1982 (seven months after
filing its complaint) but never filed the
post-hearing brief after having demanded
the opportunity to file briefs.
Consequently no decision ever issued on
the defendant's protective order.
Timber Tracts, 753 P.2d at 855. This Court noted that the
defendant submitted three sets of interrogatories, two in
1981, which the plaintiff answered in 1981, and a third set
issued on February 8, 1982, which the plaintiff failed to
answer until January 11, 1984. After that point in time,
plaintiff took no further action in pursuit of its claim
until defendant filed a motion to dismiss. The defendant
moved for a disrnl.ssa1 of the Timber Tracts case for lack of
prosecution on December 31, 1985, but no hearing was held on
that motion due to the illness of Floyd Brower, plaintiff
corporation's president and attorney. Defendant renewed its
motion for dismissal on June 3, 1987.
In the instant case, plaintiffs filed their complaint
on October 31, 1983, and then moved for substitution of judge
on February 7, 1984, from Judge Rapkoch to Judge Ettien. No
further action was taken until plaintiffs filed a motion for
extension of time to file an answer brief on June 23, 198-',
after the motion for dismissal had been filed. It should
also be noted that during the prosecution of the two cases,
Timber Tracts, Inc. was in Chapter 1-1 Bankruptcy proceedings
from October, 1985 to February 27, 1987, and that Floyd
Brower was in Chapter 11 Bankruptcy proceedings from
February, 1986 to October 28, 1986.
The sole issue presented for review is: Did the
District Court abuse its discretion in granting defendant's
motion to dismiss plaintiffs' action for failure to prosecute
and in dismissing the case with prejudice?
Rule 41 (b), M. R.Civ. P., has been interpreted as
providing that a defendant may request involuntary dismissal
of a civil action where a plaintiff fails to exercise due
diligence, absent a sufficient showing of excuse, in bringing
his or her case to trial. Shackleton v. Neil (1983), 207
Mont. 96, 101, 672 P.2d 1112, 1115. No precise rule or
formula sets forth what period of inactivity is necessary to
find a failure to prosecute. The question has been left to
the discretion of the district court, and the court's
decision will not be disturbed absent a clear abuse of
discretion. See, Timber Tracts, 753 P.2d at 856, and cases
cited therein.
The district court's decision, however, is not without
1-imit. The court m u s t "halance judicial efficiency against
the plaintiff's right to meaningful access to the judicial.
system." Timber Tracts, 753 P.2d at 856. The court must
also balance plaintiff's reasonable excuse, where it finds
unreasonable delay, against the prejudice caused to the
defendant by the delay. However, if the court finds
unreasonable delay exists, the law presumes an impairment of
the defendant's defenses. Shackleton, 672 P.2d at 1115,
citing Peters v. Newkirk (Mont. 1981), 633 P.2d 1210, 1212,
38 St.Rep. 1526, 1528.
Plaintiffs contend their pursuit of this case was
prejudiced when they were unable to actively pursue the
Timber Tracts case, the companion case, because of the lack
of a ruling on the motion for protective order. As in
Timber Tracts, we find this contention is without merit. The
court did not rule on the motion because plaintiff asked for
an opportunity to submit a post hearing brief which he then
failed to submit. Plaintiffs contend that most of the
discovery necessary to bring this case to a conclusion was
developed through the Timber Tracts case and that including
that discovery in this case absolved plaintiffs of the lack
of discovery conducted in this case. Regarding this
contention, we note that no discovery had been conducted in
the companion case after January, 1984. If the discovery had
been completed, plaintiffs had a duty to pursue the
prosecution and bring the case to trial. If discovery was
not complete, it was their duty to see steps were taken to
ensure it was conducted. Rule 41(b), M.R.Civ.P. The
plaintiffs pursued neither course of action, showing the
court no indication of their desire to bring the case to
trial. Plaintiffs also contend that they were forced to
employ various attorneys of record on the case at various
times for various reasons causing them hardship and delay. As
to plaintiffs' problems with their various attorneys being an
excuse for failing to diligently prosecute the case, we cite
to Diversified Realty, Inc. v. Holenstein (Mont. 1986), 721
P.2d 752, 43 St.Rep. 1249, where this Court stated:
Although Diversified, as it suggests, may
have been the victim of inadvertence and
mistake on the part of its numerous
attorneys, it was still at least
partially responsible for the progress of
its case over an eight year period.
Diversified cannot obtain relief, however
unintentional, from its own lack of
concern over such an extended period. of
time .
Diversified Realty, 721 P . 2 d at 755. We find even less
justification for the lack of progress in this case because
one of the plaintiffs is an attorney and his law firm is
listed as counsel of record.
Plaintiffs, further claim that the automatic stay
orders issued under Chapter 11 Bankruptcy proceedings for
plaintiff Brower precluded their ability to proceed in this
case. We note plaintiffs admit they were mistaken in this
belief as the Bankruptcy proceedings on behalf of plaintiff
Brower did not preclude pursuit of this action. Further,
even after the Chapter 11 plan was filed and any automatic
stay order effectively lifted, plaintiffs took no action for
seven months before defendant filed its motion to dismiss.
Lastly, plaintiffs contend that the District Court's
failure to issue an order in response to defendant's motion
to compel discovery, which was filed on December 31, 1985,
caused the delay. Examining the record regarding this
contention we find the motion to compel was submitted to
obtain written answers to interrogatories and requests for
production; the answers were over 28 months late at that
date. Plaintiffs failed to object to the motion or submit an
answer brief. Rule 11, of the Montana Uniform District Court
Rules, (1985), then in effect, provided that an adverse
party's failure to file an answer brief constitutes an
admission that the motion is well-taken. We hold that when
the plaintiffs conceded the motion was well-taken, yet failed
to provide the requested discovery, they cannot then claim
that they were hampered by the court's failure to rule on the
motion. Even if they were in fact hampered, they failed to
take any of the steps available which would have brought the
matter to the court's attention. We also note that had the
court ruled on the motion to compel, it would have been
within its discretion to dismiss the case at that time, for
plaintiffs' failure to serve timely answers to the
interrogatories and requests for production pursuant to Rule
37 (d), M.R.Civ.P. See, Dassori v. Roy Stanley Chevrolet Cn.
(Mont. 1986), 728 P.2d 430, 43 St.Rep. 2113.
Having examined all the excuses put forward by
plaintiffs and finding no clear error on the part of the
District Court, we affirm its decision.
Justices