NO. 93-047
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
ROBERT WESTLAND and
WESTLAND RANCH, INC.,
a Montana corporation,
Plaintiffs and Appellants,
-vs-
GERALD WEINMEISTER and
UNITED GRAIN CORPORATION,
Defendants and Respondents.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Roosevelt,
The Honorable M. James So&e, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Robert Hurly, Attorney at Law, Glasgow, Montana
Peter 0. Maltese, Attorney at Law, Sidney, Montana
For Respondents:
K. Dale Schwanke: Jardine, Stephenson, Blewett &
Weaver, Great Falls, Montana
,~ ,
Submitted on Briefs: June 10, 1993
Decided: July 20, 1993
kL #~\
Justice John Conway Harrison'delivered the Opinion of the Court.
Robert Westland and Westland Ranch, Inc., appeal from an order
of the Fifteenth Judicial District Court, Roosevelt County,
dismissing their claims for failure to prosecute. We affirm.
In May 1985, appellants (Westland) delivered approximately
17,000 bushels of wheat to an elevator operated by United Grain
Company at Macon, near Wolf Point, Montana. Elevator personnel
issued scale tickets showing a net delivery of 16,236 bushels and
mixed Westland's wheat with other wheat for shipment and sale. As
the parties did not agree on the grade and price of Westland's
wheat, the elevator continued to credit 16,236 bushels to Westland.
Westland was billed periodically for storage costs.
On February 17, 1987, Westland filed this action against
United Grain Company and its manager, Gerald Weinmeister
(collectively, United Grain), complaining that United Grain had
willfully converted its wheat and requesting judgment for actual,
compensatory, and punitive damages. United Grain admitted
commingling and selling Westland's wheat but denied that it was
required to store it separately or to redeliver it to Westland on
demand. It counterclaimed for Westland's unpaid freight and
storage charges.
Westland served interrogatories in February 1987: United Grain
responded in April. United Grain served interrogatories in May
1988; Westland responded in June. No further discovery was
undertaken until October 1990.
2
The District Court conducted a scheduling conference by
telephone on May 2, 1989. The parties agreed to complete discovery
by August 11, 1989; this deadline was extended to November 1989 on
United Grain's motion. On November 22, 1989, United Grain moved to
extend the deadline another 120 days. The court issued an order on
December 5, 1989, extending the discovery deadline "indefinitely."
Westland wrote letters to the court concurring in both
extensions.
In October 1990, United Grain deposed several witnesses,
including appellant Robert Westland. Westland deposed respondent
Weinmeister in February 1991. Westland took no further action in
this case until United Grain moved to dismiss the complaint in
1992.
On June 12, 1992, United Grain moved to dismiss Westland's
complaint for failure to prosecute, pursuant to Rule 41(b),
M.R.Civ.P. Westland did not file a formal response, but on August
6, 1992, its lawyer telephoned Judge Sorte to ask for an extension
of time to respond, until August 21, 1992. Judge Sorte apparently
agreed to this extension. Nevertheless, he entered an order
dismissing the complaint on August 13, 1992. Westland wrote to the
judge reminding him that he had granted an extension, and on August
21, 1992 it filed its brief responding to United Grain's motion to
dismiss.
On September 8, 1992, the District Court vacated its order
dismissing the complaint, saying that it had issued that order
"inadvertently and by mistake." United Grain's motion to dismiss
3
was denied, and Westland was ordered to arrange a pre-trial
scheduling conference as soon as possible.
Two days later, United Grain filed its response to Westland's
August 21 brief, and on September 25, 1992, the District Court
reinstated its judgment of dismissal, announcing that "the court
now being fully advised has determined that its initial decision to
dismiss [Westland's] complaint and claims and to enter final
judgment was correct." Westland appealed.
The sole issue on appeal is whether the District Court abused
its discretion in dismissing Westland's complaint for failure to
prosecute.
Rule 41(b), M.R.Civ.P., authorizes a district court to dismiss
an action for failure to prosecute. It provides in pertinent part:
For failure of the plaintiff to prosecute . . . a
defendant may move for dismissal of an action or of any
claim against the defendant. . . . Unless the court in
its order for dismissal otherwise specifies, a dismissal
under this subdivision . . . operates as an adjudication
upon the merits.
A district court has broad discretion in determining whether to
dismiss, and its decision will be overturned only if it has abused
that discretion. Shackleton v. Neil (1983), 207 Mont. 96, 101, 672
P.2d 1112, 1115; Thomas v. Wilson (1989), 236 Mont. 33, 35, 767
P.2d 1343, 1344.
In deciding whether a district court has abused its discretion
in dismissing an action for failure to prosecute, we consider the
following four factors:
1) the plaintiff's diligence in prosecuting his claims:
2) the prejudice to the defense caused by the plaintiff's
delay; 3) the availability of alternate sanctions; and 4)
4
the existence of a warning to plaintiff that his case is
in danger of dismissal.
Becky v. Norwest Bank Dillon, N.A. (1990), 245 Mont. 1, 8, 798 P.2d
1011, 1015. We consider these factors in light of public policy
considerations that favor a plaintiff's right to a hearing on the
merits, balanced against the trial court's need to manage its
docket and the general policy of encouraging prompt disposition of
lawsuits. w, 798 P.2d at 1015.
First, the party moving for dismissal must demonstrate that
the plaintiff has unreasonably delayed prosecution of his claim.
Becky, 798 P.2d at 1015. An unreasonable delay raises a
presumption of prejudice to the defendant and shifts the burden to
the plaintiff to show good cause or a reasonable excuse for his
inaction. Shackleton, 672 P.2d at 1115.
Here, Westland attempts to justify the delay by listing
several occasions on which United Grain moved for an extension of
time. United Grain postponed deadlines for responding to
interrogatories three times in 1987 and in 1989 moved twice to
extend discovery deadlines. It also rescheduled depositions on two
occasions in 1990.
Westland also cites United Grain's failure to provide
information requested in February 1991, during depositions.
Westland asked United Grain to document wheat samples it had
submitted to the State Grain Laboratory and to provide information
as to whether the train loads of wheat in which Westland's wheat
had been included were docked for quality. United Grain never
provided this information.
5
The District Court concluded that five years (1987-92) is an
unreasonably long time in which to bring as simple a case as this
one to trial, and that Westland had not offered a reasonable
justification or excuse for this delay. We agree.
All of the delays Westland attributed to United Grain,
together, account for only a few months out of the five years that
elapsed between the filing of the complaint and United Grain's
motion to dismiss. Moreover, Westland consented to all of United
Grain's requests for extension. Thus, apart from its February 1991
deposition of respondentweinmeister, Westland did nothing to bring
this case to trial between May 1987, when it answered United
Grain's counterclaim, and August 1992, when it responded to United
Grain's motion to dismiss.
As for the information United Grain failed to provide,
Westland itself contributed to this delay by failing to answer
United Grain's letter of February 22, 1991, in which United Grain
asked Westland to confirm the precise information requested. Nor
did Westland follow up with United Grain to obtain the information,
or move the court to compel production of documents, during the
sixteen months that elapsed between the time of its request and
United Grain's motion to dismiss.
We conclude that the District Court did not abuse its
discretion in determining that Westland had no reasonable
justification or excuse for its failure to prosecute this case
between 1987 and 1992.
As for the second Becky factor , prejudice to the defense, the
6
District Court concluded correctly that United Grain was
presumptively prejudiced by the unexcused delay and therefore was
not required to demonstrate that its ability to defend was
impaired. Becky, 798 P.2d at 1016.
Westland urges us to remand this case for trial because the
District Court did not consider the third Becky factor,
availability of an alternate sanction. Westland relies on Doug
Johns Real Estate, Inc. v. Banta (1990), 246 Mont. 295, 805 P.Zd
1301, in which we stated as a general rule that courts should
refrain from dismissing an action "unless there is no other
adequate remedy available and the facts adequately call for such a
result." Douq Johns, 805 P.2d at 1303.
In Doug Johns the district court dismissed a real estate
broker's attempt to collect a commission for failure to prosecute,
because the broker "did nothing after filing his complaint" and did
not even serve the defendants until seven months after filing the
action. We reversed, based on letters in the record that appeared
to substantiate the broker's contention that the parties had
attempted to negotiate a settlement during the seven months. We
held that another adequate remedy was available: the district
court could have scheduled the case for trial under Rule 16(b)(4),
M.R.Civ.P.
Here, no evidence of negotiation appears in the record, nor
has either party argued, as the broker did in Douq Johns, that
prosecution of the case was contingent on the outcome of
negotiations between the parties. Further, the delay in this case
7
is much longer than the delay in Doua Johns, with a concomitant
increase in the risk of injury to United Grain. We hold that the
District Court did not abuse its discretion in deciding that it had
"no other choice" than to reinstate dismissal and enter final
judgment against Westland.
Finally, Westland complains that it was not warned that its
case was in danger of being dismissed. In Cox v. Myllymaki (1988),
231 Mont. 320, 752 P.2d 1093, we reversed the district court's
dismissal for failure to prosecute because it did not consider the
important factors of availability of an alternative sanction and
the existence of a warning to the party causing the delay. There,
however, we reversed primarily because the plaintiff had offered a
reasonable excuse for the delay and the defendant had not
demonstrated any actual prejudice. w, 752 P.2d at 1094; see also
Becky, 798 P.2d at 1015, reiterating the same factors.
Here, Westland did not offer a reasonable excuse for its
delay. Neither Rule 41(b), M.R.Civ.P., nor Cox mandates dismissal
for lack of warning in the absence of a reasonable excuse for the
delay. Moreover, Westland had two months to defend United Grain's
motion to dismiss, which was filed in June 1992 but not granted
until August 1992. The fact that the District Court temporarily
rescinded its dismissal, upon reading Westland's brief, indicated
that it was susceptible to persuasion, but Westland failed to
pursue this apparent advantage and did not even comply with the
court's order to arrange for a pretrial scheduling conference in
September 1992.
8
We hold that the District Court did not abuse its discretion
in dismissing Westland's claims for failure to prosecute.
AFFIRMED.
Justices
9
Justice Terry N. Trieweiler dissenting.
I dissent.
Of the four factors to be considered in determining whether
the District Court abused its discretion, three favor reversal of
the District Court.
1. Defendants have shown absolutely no prejudice from the
delay to which they contributed and about which they now complain;
2. No warning was ever given to plaintiffs that their case
was in danger of dismissal: and
3. There was an obvious alternative available to the
District Court. It could simply have set this case for trial and
refused any further continuance.
Considering these factors in light of the compelling public
policy favoring a party's right to a hearing on the merits, I
conclude that the dismissal of plaintiffs' complaint was an abuse
of discretion and would reverse the District Court.
Justice Karla M. Gray joins in the foregoing dissent.
10
July 20, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Robert Hurly
Attorney at Law
P.O. Box 1170
Glasgow, MT 59230
Peter 0. Maltese
Attorney at Law
P.O. Box 969
Sidney, MT 59270
K. Dale Schwanke
Jardine, Stephenson, Blewett & Weaver
P.O. Box 2269
Great Falls, MT 59403
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA