No. 87-407
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
TIMBER TRACTS, INC.,
a Montana corp.,
Plaintiff and Appellant,
-vs-
FERGUS ELECTRIC COOPERATIVE, INC.,
a Montana corp.,
Defendant and Respondent.
APPEAL FROM: The District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Peter Rapkoch, Judge presiding .
COUNSEL OF RECORD:
For Appellant:
Floyd A. Brower, Roundup, Montana
Ralph Herriott, Billings, Montana
For Respondent:
Herndon, Harper & Munro; Donald R. Herndon, Billings,
Montana
William A. Spoja, Jr., Lewistown, Montana
Submitted on Briefs: Feb. 4, 1 9 8 8
Decided: March 3 , 1988
Filed: MAR 3 - 1988 .
.._..-
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Timber Tracts, Inc., hereafter referred to as
plaintiff, filed a contract action against Fergus Electric
Cooperative, hereafter referred to as defendant, in the
District Court of the Tenth Judicial District, Fergus County,
on June 16, 1981. On July 1, 1987, that District Court, held
a hearing on defendant's motion to dismiss the cause for lack
of prosecution under Rule 41 (b), M. R.Civ.P. An order
dismissing the cause with prejudice issued on August 27,
1987.
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.
The defendant, meanwhile, submitted three sets of
interrogatories. The first was issued on September 1, 1981
and answered on October 7, 1981. The second was issued on
October 7, 1981 and answered on November 5, 1981. The third
was issued on February 8, 1982, but plaintiff did not serve
its answers until January 11, 1984, some 23 months later and
some two years and seven months after the complaint had been
filed. The plaintiff-corporation took no action to pursue
its claim after this date.
The defendant moved to dismiss for lack of prosecution
on December 31, 1985. A hearing on the motion was continued
when Floyd Brower, the plaintiff-corporation's president as
well as attorney, could not attend because of illness. The
motion was renewed on June 3, 1987, 72 months after the
complaint, and was heard on July 1, 1987. Brower testified
that the plaintiff-corporation had paid four attorneys more
than $24,000 to prepare the case for trial. He noted also
that while the plaintiff-corporation had resorted to
reorganization under Chapter 11 of the U.S. Brankruptcy Code,
that he had moved to have the automatic stay lifted so that
the lawsuit could proceed. The District Court, unconvinced
that these factors represented excusable neglect, granted the
defendant's motion.
We confront the sole issue of whether the District
Court abused its discretion by dismissing the cause with
prejudice. We affirm.
Failure to prosecute a civil action arises whenever a
plaintiff has not exercised due diligence in bringing his
cause to trial. Shackleton v. Neil (Mont. 1983), 672 P.2d
1112, 1114, 40 St.Rep. 1920, 1923. Rule 41(b) allows the
defendant to request an involuntary dismissal in such cases.
The Rule states in part:
For failure - - plaintiff to prosecute
of the
or to comply with these ruies or any
order of court, a defendant may move for
dismissal of an action or of any claim
against him ... (Emphasis added.)
There is no precise rule or formula to determine what
length of a period of inactivity represents a failure to
prosecute. The question of whether there has been a failure
to prosecute is one left to the discretion of the district
court. Shackleton, 672 P.2d at 1115; Brymerski v. City of
Great Falls (1981), 195 Mont. 428, 431, 636 P.2d 846, 848.
The d-istrict court's decision will not be disturbed unless
that court clearly abused its discretion. Shackleton, 672
P.2d at 1115, quoting Nealey v. Transportacion Maritima
Mexicans, S.A. (9th Cir. 1980), 662 F.2d 1275, at 1278.
Keeping in mind that courts "exist primarily to afford a
forum to settle litigable matters between disputing parties,"
the district court must balance judicial efficiency against
the plaintiff's right to meaningful access to the judicial
system. Martin v. Board of Labor Appeals (Mont. 1987), 737
P.2d 488, 490, 44 St.Rep. 951, 954, citing Brymerski, 636
P.2d at 848.
The District Court must carefully consider the recent
actions of the plaintiff. When the plaintiff has resumed
work on the case and is diligently prosecuting it at the time
the motion is filed the motion should not be granted since
the policy favoring resolution of a case on its merits is
more compelling than the rationale of Rule 41(b), which is to
prevent unreasonable delay. Brymerski, 636 P.2d at 848-49.
In the three and one-half months before the defendant filed
its motion to dismiss in Brymerski, the plaintiff had
substituted counsel, filed answers to four-year-old
interrogatories, and submitted interrogatories of its own to
the defendants. This Court held that defendant's motion to
dismiss was not timely. Brymerski, 636 P.2d at 849. The
plaintiff's resumption of the case must be "active" and
"diligent." The mere scheduling of depositions is not enough
to stave off a dismissal for lack of prosecution.
Diversified Realty, Inc. v. Holenstein (Mont. 1986), 721 P.2d
752, 754, 43 St.Rep. 1249, 1252.
In the case at bar, the plaintiff had seventeen months'
notice from the time defendant first moved to dismiss the
cause until the time that motion was renewed. The record
shows that in that period, the plaintiff did nothing more
than to express its opposition to the first motion, supported
by brief, and move to continue the first scheduled hearing
because of Brower's illness. The absence of any further
discovery does - show active and diligent pursuit of the
not
cause. This conclusion is accentuated by plaintiff's
knowledge that one motion to dismiss had been filed and might
be renewed. See, Chicago Title Insurance Co. v. Wheat (Mont.
1985), 699 P.2d 597, 42 St.Rep. 671. The burden is upon the
plaintiff to demonstrate a reasonable excuse for his neglect.
If the plaintiff fails to carry that burden, the delay is
considered unreasonable and the defendant is presumed to have
been prejudiced. Wheat, 699 P.2d at 599.
The plaintiff-corporation's president, Floyd Brower,
himself a practicing attorney, attempts to lay much of the
blame at the feet of other attorneys the plaintiff had
retained to handle the matter. Brower, though, had been
counsel of record since October 14, 1981 and had hired
associates for his law firm on two occasions during the
course of this action with the understanding that they would
prepare the cause for trial. The record shows that no
discovery was ever conducted by either associate. The
plaintiff also retained a Helena lawyer to handle the cause
as senior counsel when it went to trial. This attorney
ultimately was forced to withdraw because of a conflict of
interest.
Even assuming that the attorneys hired by the plaintiff
were derelict, the client is not totally absolved of its
responsibility to move the cause to trial.
Diversified Realty, 721 P.2d at 755. At the conclusion of
the hearing on the motion to dismiss, the District Judge
stated:
Mr. Brower, you are the president of
Timber Tracts, the Plaintiff in this
matter. But you're also an attorney and
as such have a fiduciary duty as the
president of the corporation to pay
attention to and be ruled by and to take
care of the interests and business
matters, legal matters of the Plaintiff
corporation. The record is just replete
with that not having been done. And
evidently, the attorneys who were hired
by the Plaintiff to handle this case as
you've testified, didn't do the job. The
client, especially an informed client, is
bound by the actions or inactions of its
counsel. And because the rule is when a
party represents himself or herself that
party, that self-representing party is
bound by the law of both the procedure
and the substantive laws.
Because the court's statement represents an accurate
summary of Mr. Brower's testimony and reflects the rule that
an attorney must use a reasonable degree of care or skill to
protect his client, see, Clinton v. Miller (1951), 124 Mont.
463, 483-84, 226 P.2d 487, 498, the District Court did not
err when it found no reasonable excuse. The plaintiff's
assertion that it could not progress with its cause because
the District Court had never ruled on the defendant's motion
for a protective order is similarly without merit. The court
never ruled on that protective order because the plaintiff
failed to submit a brief after requesting that briefs be
submitted. Such inaction, besides showing disdain for the
court, shows a failure to act diligently in this claim.
Similarly, there is no merit in Brower's assertion that he
delayed action in this case because he thought the Chapter 11
automatic stay precluded further action. It was his
responsibility in furtherance of this action to notify the
District Court and the defendant of the proposed
reorganization and then to learn from bankruptcy specialists
how the automatic stay affected this action. The plaintiff
failed to do this.
Because plaintiff could not demonstrate reasonable
excuse and the cause had lingered for more than five years
with no activity except to answer the defendant's
interrogatories and motions, the court did not err when it
ruled the plaintiff had not been diligent and consequently
dismissed the cause.
Affirmed.
Justices