Nystrom v. Melcher

• Decision Date: 23 November 1993
• Docket Number: No. 93-024,93-024
• Citation: 262 Mont. 151,864 P.2d 754
• Court: Montana Supreme Court
• Parties: Karl NYSTROM and Ruth Nystrom, Plaintiffs and Appellants, v. Robert C. MELCHER; Duane Schnittgen; Morrison, Young, Melcher, Brown & Richardson, an entity of assumed name; Robert D. Morrison; Chris R. Young; Stephen R. Brown, Jr.; and Kathleen H. Richardson, Defendants and Respondents.

Page 754

864 P.2d 754

262 Mont. 151

Karl NYSTROM and Ruth Nystrom, Plaintiffs and Appellants, v. Robert C. MELCHER; Duane Schnittgen; Morrison, Young Melcher, Brown & Richardson, an entity of assumed name Robert D. Morrison; Chris R. Young; Stephen R. Brown, Jr. and Kathleen H. Richardson, Defendants and Respondents.

No. 93-024.

Supreme Court of Montana.

Submitted on Briefs Sept. 9, 1993.

Decided Nov. 23, 1993.

Mort Goldstein, Goldstein Law Firm, Havre, for plaintiffs and appellants.

Stuart C. MacKenzie, Burns, Solem & MacKenzie, Chinook, for defendant and respondent Duane Schnittgen.

Neil E. Ugrin, Ugrin, Alexander, Zadick & Slovak, Great Falls, for defendants and respondents.

WEBER, Justice.

Plaintiffs appeal from the order of the District Court of the Twelfth Judicial District, Hill County, dismissing their complaint with prejudice for their repeated failure to plead in conformity with the Montana Rules of Civil Procedure. We affirm.

The sole issue for review is whether the District Court erred in dismissing the plaintiffs' complaint with prejudice because of their failure to comply with the Montana Rules of Civil Procedure and failure to comply with an order of the court.

This case stems from prior litigation between Karl and Ruth Nystrom (the Nystroms) and respondent Duane Schnittgen (Schnittgen), in which Schnittgen was represented by respondent Robert C. Melcher (Melcher). This litigation was an action upon a contract covering real and personal property; it was initiated by Schnittgen and culminated in a trial before District Court Judge Peter L. Rapkoch. Judge Rapkoch denied relief on all claims and counterclaims. After the completion of and in response to that action, the Nystroms filed a complaint, subsequently amended, against Schnittgen, Melcher and the law firm of Morrison, Young, Melcher, Brown & Richardson.

The Nystroms' amended complaint asserted claims for "malicious fraudulent prosecution," "intentional abuse of process," and "unlawful intentional infliction of emotional distress." The amended complaint contained 76 paragraphs in 26 pages of allegations. The District Court determined that "the form and substance of this pleading was vindictive, argumentative, and repetitive" and "not within the contemplation of the Montana Rules of Civil Procedure and was not a pleading to which the defendants should or could reasonably be expected to respond." The respondents Melcher and the law firm of Morrison, Young, Melcher, Brown & Richardson filed a motion to strike the amended complaint or, in the alternative, for a more definite statement and were joined by Schnittgen in their motion. Judge Robert J. Boyd issued an order striking the Nystroms' amended complaint and ordered them to make their complaint conform to Rules 8(a), 8(e)(1) and 12, M.R.Civ.P.

The Nystroms filed a second amended complaint, this time alleging "intentional malicious fraudulent prosecution," "intentional abuse of process," "unlawful intentional infliction of emotional distress," and "interference with business relation" and also purported to state a claim for "conspiracy." The second amended complaint contained 130 paragraphs of allegations plead in 13 counts over 43 pages. It essentially repleaded the claims alleged in the first complaint and included claims distinct from and not indicated by the first amended complaint. Judge Boyd also found that the second amended complaint remained "vindictive, argumentative, and repetitive in form and substance."

In response to the second amended complaint, respondents filed a motion to dismiss the complaint pursuant to Rule 41(b), M.R.Civ.P., based on the Nystroms repeated failure to plead in conformity with the Montana Rules of Civil Procedure and for failing to obey the District Court's order directing them to "strictly observe" Rules 8 and 12, M.R.Civ.P., in any subsequent amended complaint. The District Court heard oral arguments on the motion and subsequently dismissed the Nystroms' second amended complaint with prejudice. Although the court concluded that the plaintiffs' "abusive pleading tactics" had needlessly protracted litigation and added to its cost, it declined to grant the respondents' request for sanctions under Rule 11, M.R.Civ.P. Specifically, the District Court concluded:

7. The second amended complaint is parallel to, or more egregious than, the violation of the rules committed by plaintiffs in their first amended complaint. The second amended complaint is in direct violation of the Court's order of January 3, 1992, as well as the Montana Rules of Civil Procedure. The second amended complaint does not strictly observe the requirements of Rules 8 and 12, Mont.R.Civ.P., and, as such, dismissal with prejudice is warranted under Rule 41(b), Mont.R.Civ.P.

8. Plaintiffs' motion for leave to amend the second amended complaint is without merit. Plaintiffs' seek to amend their second amended complaint in order to more particularly plead fraud allegations. Fraud and fraud-related allegations were pleaded without particularity in the first amended complaint, and plaintiffs demonstrated no effort to plead these allegations with greater brevity, clarity, or particularity in the second amended complaint, despite the admonition of the Court. A further request to replead is not warranted under the circumstances herein. In addition, the plaintiffs seek leave to amend the second amended complaint to more clearly plead their conspiracy count. The conspiracy count was not pleaded in the first amended complaint. Given the prior admonition of the court, and in light of the specious manner in which this count was pleaded in the second amended complaint, the Court concludes that leave to amend is not warranted.

In the first action, Judge Rapkoch concluded that Schnittgen had alleged an oral contract which was "for all intents and purposes a subterfuge." In this action, the Nystroms' complaint attempted to state a cause of action against defendants for deliberately fabricating a fraudulent suit to deceptively obtain property belonging to the Nystroms. The Nystroms argue that there were other alternatives available to the District Court in lieu of the drastic and unprecedented measure of dismissal with prejudice.

Did the District Court err in dismissing the plaintiffs' complaint with prejudice because of their failure to comply with the Montana Rules of Civil Procedure and failure to comply with an order of the court?

The District Court dismissed the second amended complaint with prejudice under Rule 41(b), M.R.Civ.P., because it did not strictly observe the requirements of Rules 8 and 12, M.R.Civ.P. Rule 41(b), M.R.Civ.P., provides in pertinent part:

Rule 41(b). Involuntary dismissal--effect thereof. For failure of the plaintiff to ... comply with these rules or any order of court, 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.

Rule 41(b), M.R.Civ.P., has no application to a motion to dismiss for failure to state a claim under Rule 12(b), M.R.Civ.P.; we therefore do not need to address the sufficiency of the claim in stating a cause of action.

At the time Judge Boyd ordered the first amended complaint stricken, he allowed the Nystroms 30 days in which to file a second amended complaint "strictly observing the requirements of Rule 8(a) and 8(e)(1), as well as the mandates of Rule 12, M.R.Civ.P." These rules provide in pertinent part:

Rule 8(a). Claims for relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief ...

Rule 8(e). Pleading to be concise and direct--consistency. (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motion are required....

Rule 12(e). Motion for more definite statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading.... If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

Rule 12(f). Motion to strike. ... upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

Rule 12(e), M.R.Civ.P., clearly allowed the District Court to strike the first amended complaint in this action and also to order that the second amended complaint be dismissed with prejudice as contemplated under Rule 41(b), M.R.Civ.P.

Dismissal under Rule 41(b), M.R.Civ.P., however, is a harsh remedy. This Court has previously stated that because the result is severe, district courts should refrain from thus dismissing an action "unless there is no other adequate remedy available" and "the facts sufficiently call for such a result." Chisholm v. First Nat'l Bank of Glasgow (1988), 235 Mont. 219, 220, 766 P.2d 868, 869. In Chisholm, 766 P.2d at 872, we quoted Von Poppenheim v. Portland Boxing and Wrestling Comm'n (9th Cir.1971), 442 F.2d 1047, 1049, cert. denied 404 U.S. 1039, 92 S.Ct. 715, 30 L.Ed.2d 731, reh'g denied 405 U.S. 999, 92 S.Ct. 1246, 31 L.Ed.2d 469:

Because a dismissal under Rule 41(b) is such a harsh remedy, and because such dismissals are frequently occasioned by inattention of counsel rather than by plaintiff's own wrongdoing, cou...