NO. 94-507
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
HOBBLE-DIAMOND CATTLE, CO.,
Plaintiff and Appellant,
-vs -
TRIANGLE IRRIGATION CO.,
Defendant and Respondent.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Sweet Grass,
The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jock B. West; West, Patten, Bekkedahl & Green,
Billings, Montana
For Respondent:
Steven T. Potts; Jardine, Stephenson, Blewett &
Weaver, Great Falls, Montana
Submitted on Briefs: May 19, 1995
Decided: July 14, 1995
Filed: JfJL14 rsgj
Justice Karla M. Gray delivered the Opinion of the Court.
Hobble-Diamond Cattle Company appeals from the judgment of
dismissal entered by the Sixth Judicial District Court, Sweet Grass
County, which was premised on the court's grant of Triangle
Irrigation Company‘s motion to dismiss for failure to prosecute.
We reverse.
Hobble-Diamond Cattle Company (Hobble-Diamond) filed this
action against Triangle Irrigation Company (Triangle) in 1986,
alleging that certain pivots in the irrigation system it purchased
from Triangle in 1983 were defective or improperly installed.
Shortly before the scheduled trial in 1989, Hobble-Diamond sought
leave to amend its complaint to add a claim based on alleged
problems with another pivot; the District Court refused to
authorize the amendment.
A bench trial in July 1989 resulted in a judgment in
Triangle's favor. Hobble-Diamond appealed, raising only the issue
of the court's denial of its motion for leave to amend the
complaint. We reversed, holding that the court had abused its
discretion, and remanded for further proceedings. Hobble-Diamond
Cattle v. Triangle Irrigation (19911, 249 Mont. 322, 326, 815 P.Zd
1153, 1156. Remittitur issued on September 4, 1991.
Hobble-Diamond moved to substitute the sitting judge and,
thereafter, Triangle moved to substitute the judge called in to
assume jurisdiction. The Honorable Larry W. Moran assumed
jurisdiction on November 15, 1991. Counsel. for Hobble-Diamond was
allowed to withdraw on February 21, 1392, and new counsel for
2
Hobble-Diamond filed an appearance on March 20, 1992. In June
1992, Hobble-Diamond formally requested a scheduling conference.
By oral order and minute entry dated April 22, 1993, the
District Court ordered a telephonic status conference for early May
1993; Hobble-Diamond was to initiate the call. The parties also
were ordered to file a status report prior to that time; neither
party complied. The telephonic conference was rescheduled for May
25, 1993, by request of Hobble-Diamond's counsel and stipulation by
Triangle. The May 25 status conference did not take place and the
facts regarding why have not been clearly established. The docket
does not reflect any attempt to reschedule the conference and,
indeed, no further activity occurred regarding the case.
In May, 1994, approximately one year later, Triangle moved for
dismissal pursuant to Rule 41(b), M.R.Civ.P., for failure to
prosecute. The motion was briefed and orally argued. The District
Court orally granted the motion and, after a motion for
reconsideration by Hobble-Diamond, entered its memorandum and
judgment of dismissal. Hobble-Diamond appeals.
Did the District Court abuse its discretion in granting
Triangle's Rule 41(b), M.R.Civ.P., motion to dismiss for
failure to prosecute?
Rule 41(b), M.R.Civ.P., authorizes a district court to dismiss
an action for failure to prosecute upon motion of the defendant.
The court has broad discretion in ruling on such a motion, and "its
decision will be overturned only if it has abused that discretion."
Westland v. Weinmeister (1993), 259 Mont. 412, 415, 856 P.2d 1374,
1376 (citations omitted).
3
Decisions on motions to dismiss for failure to prosecute
entail a careful balancing of the competing public policy interests
in resolving lawsuits on the merits and encouraging prompt
disposition of disputes. Westland, 856 P.2d at 1376 (citation
omitted). To that end, we have established four factors to be
considered in determining whether a district court abused its
discretion in dismissing an action under Rule 41(b), M.R.Civ.P.:
1) plaintiff's diligence in prosecuting the claim; 2) prejudice to
the defense caused by plaintiff's delay; 3) availability of
alternate sanctions; and 4) existence of a warning that the case is
in danger of dismissal. Westland, 856 P.2d at 1376 (citation
omitted). We examine the record before us regarding each Westland
factor separately in order to properly balance the competing public
policy interests at issue, as required by Westland.
With regard to the diligence factor, the District Court
observed that Hobble-Diamond purchased the irrigation system at
issue in this case in 1983, the action was filed in 1986 and
Hobble-Diamond had done nothing since remittitur from this Court in
September of 1991. We note that the first two time references are,
indeed, correct. They are not, however, relevant here in that time
periods prior to remittitur in the first appeal have no bearing on
Hobble-Diamond's diligence during the period since remittitur.
Moreover, the District Court's characterization of Hobble-
Diamond's total lack of activity for the nearly three years since
remittitur is neither correct nor fair to Hobble-Diamond. Hobble-
Diamond moved to substitute the sitting judge, substituted counsel
4
and, in June of 1992, requested a scheduling conference. The fact
that ten months passed between the request and the minute entry
setting up the status conference cannot be attributed to delay by
Hobble-Diamond. The same is true of the time between the
scheduling, and nonoccurrence, of the conference, Thus, based on
the record before us, it is clear that the time period appropriate
for consideration regarding Hobble-Diamond's lack of diligence in
this case is the year which passed between the aborted telephonic
conference and Triangle's motion to dismiss for failure to
prosecute. Such a period of time is not per se unreasonable,
although Hobble-Diamond's failure to reschedule the conference
after its failure to complete it as ordered cannot be condoned.
Regarding the prejudice factor, while the District Court
observed that Hobble-Diamond had not established the reasonable
excuse necessary pursuant to Westland to overcome the prejudice
presumed by an unreasonable delay (see Westland, 856 P.2d at 1377),
the court focused on the actual prejudice it determined Triangle
had suffered as a result of Hobble-Diamond's lack of diligence.
That actual prejudice was based on the lapse of eleven years since
the irrigation system was purchased by Hobble-Diamond, and the sale
of the system and resulting lack of availability for trial
purposes.
Again, as discussed above, the total lapse of time since the
1983 irrigation system transaction upon which this case is based is
not relevant in the context of a Rule 41(b), M.R.Civ.P., motion to
dismiss for failure to prosecute. The passage of time which is
5
relevant to whether Hobble-Diamond's lack of diligence caused
actual prejudice to Triangle is the one year period between the
aborted telephonic conference in May of 1993 and Triangle's motion
to dismiss one year later. While we do not disagree that this case
is now somewhat stale, Triangle did not establish actual prejudice
caused by the one-year period of delay with which we are concerned.
Nor is the fact that the irrigation system may not be available for
trial purposes particularly relevant since it appears that the
system was sold during the period prior to remittitur in the first
appeal. Thus, while the system's possible lack of availability may
be problematic to both parties, no prejudice to Triangle in that
regard can fairly be said to have resulted from the delay at issue
here.
The "availability of alternate sanctions" factor was not
directly addressed by the District Court in its memorandum
accompanying the judgment of dismissal. The court merely relied on
Westland, in which we held that the district court did not abuse
its discretion in deciding that it had "no other choice" than to
dismiss. gee Westland, 856 P.2d at 1370. We have determined
above, however, that the District Court relied on inappropriate
time periods and erroneously found actual prejudice in ruling on
Triangle's motion to dismiss. On that basis, we determine that the
one-year period at issue here, much shorter than the overall period
at issue in Westland, mandates close consideration of this factor.
The "availability of alternate sanctions" factor recognizes
that Rule 41(b), M.R.Civ.P., dismissals should be imposed sparingly
6
and must remain the exception rather than the rule. Here, it is
clear that other sanctions were available. The court could have
sanctioned counsel and/or Hobble-Diamond for failure to comply with
its order placing responsibility for initiating the scheduling
conference on Hobble-Diamond. It could have set the case for trial
immediately, a remedy we determined was adequate in Doug Johns Real
Estate, Inc. v. Banta (lYYO), 246 Mont. 295, 299, 805 P.2d 1301,
1304.
It also is clear, however, that nothing in the balancing of
factors mandated by Westland requires a total unavailability of
other sanctions prior to dismissal for failure to prosecute under
Rule 41(b), M.R.Civ.P. Indeed, such a requirement would render
involuntary dismissal pursuant to Rule 41(b) an impossibility
since, as a practical matter, alternative sanctions always would be
available to a court. Thus, a total absence of alternative
sanctions is not necessary.
?+n involuntary dismissal is a severe result. See Douq Johns,
805 P.2d at 1303. Under the circumstances presented by this case,
we determine that the "availability of alternate sanctions" factor
weighs in Hobble-Diamond's favor given the plethora of alternate
sanctions and remedies available and the period of delay at issue.
Finally, with regard to the "warning" factor, the District
Court gave no direct warning to Hobble-Diamond that its case was in
danger of dismissal. Neither Westland nor any rule specifically
requires a court to give such a warning, although it is the
practice of many trial courts to do so through an order to show
cause or other device. While such a warning is the better
practice, we are not inclined to impose such a burden regarding the
diligent prosecution of a case on the courts. For purposes of
considering the Westland factors, however, it is sufficient to
observe that the court did not formally warn Hobble-Diamond that
its case was in danger of dismissal.
We do not condone counsel's lack of attention over a one-year
period to this case in his charge. In considering the Westland
factors for purposes of balancing the competing public policy
interests in resolving lawsuits on the merits and encouraging
prompt disposition of disputes, however, we conclude that the
District Court abused its discretion in granting Triangle's Rule
41 lb), M.R.Civ.P., motion to dismiss,
K 42q
The/$o&&ab$'& JeWrey,&. Langton,
Ju&je of tlfe District'Court, sitting
for Justice W. William Leaphart
8
Justice Fred J. Weber dissents as follows:
The opinion concludes that, in applying the four Westland
factors to this case, the District Court abused its discretion in
granting Triangle's Rule 41(b) motion to dismiss. I disagree with
that conclusion and, therefore, dissent from the opinion.
It is significant to note that District Judge Moran assumed
jurisdiction on November 15, 1991, and Hobble-Diamond had
essentially done nothing during the next three years except for the
appointment of new counsel.
In the District Court's Memorandum and Judgment of Dismissal
dated September 20, 1994, the District Court points out that the
case was filed in 1986, more than eight years ago, and arose from
defendant Triangle selling plaintiff Hobble-Diamond an irrigation
system in 1983. The court points out that shortly before trial,
Hobble-Diamond attempted to add another claim based upon alleged
problems with pivot number five. The Supreme Court reversed the
District Court's 1991 decision because of the failure to permit
that amendment. The District Court then stated:
It is now 1994, and Hobble-Diamond still has not
filed any pleadinq to state a claim based upon pivot no.
5. No discovery has been conducted, and there has been
no activity by Plaintiff in this case since 1991, other
than its change of attorneys two years ago.
This case is more than 8 years old; the subject
matter is approximately 11 years old. At oral argument
it was acknowledged that plaintiff [Hobble-Diamond] has
sold the irrigation system and the ranch on which it was
located, several years ago. (Emphasis added.)
The court then discussed the rules to be applied and specifically
analyzed the case based upon the Westland four factors. The
District Court stated in regard to those factors:
Applying the factors set forth in Westland, the
Court determines that this action should be dismissed:
1. Plaintiff has not diligently prosecuted its
alleged claim. Nearly 11 years have passed
since the irrigation system was installed, and
more than eight years have passed since this
action was commenced. Although the Supreme
Court ordered in 1991 that Plaintiff could
amend its Complaint to assert a claim based
upon pivot no. 5, nearly three more years have
now passed with no activity at all. Plaintiff
has not been reasonable or diligent in
prosecuting its alleged claim. See Westland,
856 P.2d at 1377.
2. Plaintiff's delay in prosecution has
prejudiced the Defendant. Hobble-Diamond's
unreasonable delay, noted in paragraph 1,
"raises a presumption of prejudice to the
Defendant and shifts the burden to the
Plaintiff to show good cause or a reasonable
excuse for inaction." . . [Westland, 856
P.2d at 1377.1 Plaintiff's memorandum does
not dispute either the presumption or its
application here. Plaintiff submitted no
affidavit or any discovery or evidentiary
material to dispute the presumption that
Defendant has been prejudiced. Further, it is
readily apparent that Defendant has, in fact,
been prejudiced, not only by the long period
of time since the irrigation system was sold
and installed, but also by Plaintiff's sale of
the system several years ago. Such
circumstances make it virtually impossible for
Defendant to test and inspect the system so as
to separate alleged defects from 11 years of
use and normal wear and tear.
3. Here, the dismissal sanction should be applied
as it was in Westland. There, five years had
elapsed between the filing of plaintiff's
Complaint and defendant's Motion to Dismiss,
and there had been no activity in the case for
more than a year. . . Based on those facts,
the court had "'no other choice' than to
10
dismiss and enter final judgment against
westland." . . Here, the facts are even
more compelling: Hobble-Diamond filed the
action eight years ago and has taken no actin
for nearly three years. [Citations omitted.1
4. The factor of a warning to Plaintiff that
dismissal could occur is also controlled by
Westland. H e r e , this Court set a telephone
status conference last year, at which it
ordered that the parties confer with the Court
regarding case status, and the issuance of a
scheduling order. Although ordered to do so,
Plaintiff never initiated the conference call.
Plaintiff made no effort thereafter to reset
the aborted status conference, and made no
efforts whatsoever in this case, until
Defendant filed its Motion to Dismiss. .
(Emphasis added.)
Finally, the Court reminds the Plaintiff that it,
not the Court, has the ultimate responsibility to
prosecute its claims, conduct discovery, and prepare its
case for trial. . .
I conclude that the District Court's analysis of the Westland
factors does not demonstrate an abuse of discretion.
Our test is limited to a finding of an abuse of discretion.
When I consider all of the facts as set forth in the District
Court's memorandum and judgment and the facts emphasized in the
opinion, I conclude there is no basis upon which to hold there has
been an abuse of discretion.
I dissent.
11
July 14, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Jock B. West
WEST, PATTEN, BEKKEDAHL & GREEN
Old Chamber Building, Suite. 100
301 North 27th Street
Billings MT 59101
Steven T. Potts
JARDINE, STEPHENSON, BLEWETT & WEAVER
Box 2269
Great Falls MT 59403-2269
ED SMITH
CLFZRK OF THE SUPREME COURT
STATE O F M O N T A N A