No. 87-288
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
ILENE COX AND ELEANOR DUNN,
Plaintiffs and Appellants,
GILBERT MYLLYMAKI, EVAN H. GRAY,
and EUGENE MYLLYMAKI,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kelly A. Jenkins, Helena, Montana
George Richardson, Richardson and Richardson;
Butte, Montana
For Respondent:
John F. Iwen, Great Falls, Montana
Submitted on Briefs: February 4, 1988
Decided: April 6, 1988
Filed: +/d/&~!?
Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
Plaintiffs appeal the decision of the District Court of
the Eighth Judicial District, Cascade County, granting
defendants motion to dismiss for failure to prosecute
pursuant to M.R.Civ.P. 41(b).
The plaintiffs filed their complaint in the underlying
cause on July 30, 1984. The first defendants were served on
August 15, 1984. The defendants filed an answer October 31,
1984 and filed an amended answer five days later. In
September 1984, plaintiff Cox, who along with Dunn was named
as an heir in Lempi Matilla's will, filed for appointment as
special administrator for the estate of Lempi Matilla.
Matilla was the most recent decedent and sole heir of William
Matilla, whose estate is the subject of the underlying cause.
The underlying cause involved alleged improprieties in the
documentary transfer of William Matilla's land and alleged
subsequent fraud in the administration of Lempi Matilla's
estate. Cox1s petition was denied by the probate court, so
she appealed the decision to the M.ontana Supreme Court. The
Supreme Court upheld the probate court on May 9, 1986. See
In the Matter of the Estate of Lempi Matilla, Deceased (Mont.
1986), 718 P.2d 343, 43 St.Rep. 797. The defendants filed
their motion to dismiss for want of prosecution under
M.R.Civ.P. 41(b) on December 29, 1986. On May 18, 1987 the
District Court granted defendants' motion to dismiss for
failure to prosecute.
The issue on appeal is whether the District Court
committed reversible error when it granted the defendants'
motion to dismiss for failure to prosecute pursuant to
M.R.Civ.P. 41 (b! . We reverse.
Rule 41(b), M.R.Civ.P., governs the dismissal of a claim
for failure to prosecute.
For failure of the plaintiff to prosecute or to
comply with these rules or any order of court, a
defendant may move for dismissal of an action or of
any claim against him.
The granting of a motion to dismiss for failure to prosecute
will not be overturned unless there is an abuse of
discretion. "It is within the discretion of the trial court
to dismiss an action if it has not been prosecuted with
reasonable diligence. It is presumed that the trial court
acted correctly and its decision will not be overturned
without a showing of an abuse of discretion." Cremer v.
Braaten (1968), 151 Mont. 18, 19-20, 438 P.2d 553, 554.
However, a judge's discretion is not unlimited and it
must be remembered that courts "exist primarily to afford a
forum to settle litigable matters between disputing parties.
(citations omitted) " Brymerski v. City of Great Falls
(1981), 195 Mont. 428, 431, 636 P.2d 846, 848. The factors
to be weighed when determining whether a district court has
abused its discretion include: ". . . the plaintiff's
diligence, the trial court's need to manage its docket, the
danger of prejudice to the party suffering the delay, the
availability of alternate sanctions, and the existence of
warning to the party occasioning the delay." Hamilton v.
Neptune Orient Lines, Ltd. (9th Cir. 1987), 811 F.2d 498,
499.
One factor, the plaintiff's diligence, is a balance of
unreasonable delay, prejudice to the defendant, and the
existence of excuse for delay. Where there is unreasonable
delay, prejudice to the defendant is presumed and the
plaintiff must show an excuse for the inactivity. The burden
shifts when a reasonable excuse is presented. Timber Tracts,
I ~ c .v. Fergus Electric Cooperative, Inc., (Mont. 1988), 45
St.Rep. 415, P.2d . A reasonable excuse is one that
is not frivolous ". . . where a plaintiff has come forth with
an excuse for his delay that is anything but frivolous, the
burden of production shifts to the defendant to show at least
some actual prejudice." Nealy v. Transportation Maritima
Mexicans, S.A. (9th Cir. 1980), 662 F.2d 1275, 1281. The
plaintiffs present the excuse that they were pursuing a
collateral action. Plaintiff Cox was attempting to be
appointed special administrator of the Lempi Mattila estate,
which would have affected her position in this underlying
action. This excuse accounts for much of the delay and is
not frivolous. The burden then shifts and defendants have
not demonstrated any actual prejudice. "A weak excuse may
suffice if there has been no prejudice; an exceedingly good
one might still do even when there has been some." Nealy,
662 F.2d at 1280 quoting Larios v. Victory Carriers, Inc.,
(2nd Cir. 1963), 316 F.2d 63, 67.
Two other important factors, the availability of
alternative sanctions and the existence of a warning to the
party causing the delay were not considered in this case.
The granting of a dismissal pursuant to Rule 41(b) is more
difficult to sustain when there is no warning and no
exploration of possible alternative sanctions. Hamilton, 811
F.2d at 500. In view of all these considerations there was
an abuse of discretion by the trial court. Reverse.
We Concur:
A