Rudy-Mai Farms v. Peterson, RUDY-MAI

Citation705 P.2d 1071,109 Idaho 116
Decision Date05 September 1985
Docket NumberRUDY-MAI,No. 15581,15581
PartiesFARMS, a partnership, Rio Vista Farms, a partnership, Tuana Farms, a partnership, Tuana Storage, a partnership, Plaintiffs-Appellants, v. Perc PETERSON, DBA Perc Peterson Construction, and Warm Springs Enterprises, Inc., an Idaho Corporation, and Richard Rost, DBA Rost Pyrocreting and Procreting Carboline, Inc., Defendants-Respondents.
CourtCourt of Appeals of Idaho

Kevin F. Trainor, Doerr & Trainor, Twin Falls, and Robert Korb, III, (argued), Kneeland, Laggis, Korb, Collier, Benjamin & Russell, Ketchum, for plaintiffs-appellants.

Paul M. Beeks, Smith & Beeks, Twin Falls, for respondent Peterson. Severt Swenson, Jr., Gooding, for respondent Rost.

Stephen J. McGrath (argued), and William R. Dalling, St. Clair, Hiller, Wood & McGrath, Chartered, Idaho Falls, for respondent Carboline.

Kathryn A. Sticklen and Sidney D. Brown, Quane, Smith, Howard & Hull, Boise, for respondent Warm Springs Enterprises.

BURNETT, Judge.

In 1978 Rudy-Mai Farms and other appellants shown filed this suit against the respondents Peterson and Rost, together with corporate enterprises operated by them. The complaint sought compensation for damage to stored potatoes allegedly caused when a product known as pyrocrete was sprayed on the walls of the storage facilities. In 1984 the district court dismissed this action with prejudice under I.R.C.P. 41(b), for lack of prosecution. On appeal the sole issue is whether the judge abused his discretion in doing so.

The record reflects the following case history. After the complaint was filed, the respondents answered, filed cross-claims and submitted interrogatories to the appellants. The appellants failed to reply to the interrogatories. On October 30, 1978, the court ordered compliance with discovery. The interrogatories were answered during December, 1978, and January, 1979. A deposition was taken by the respondents in May, 1981. No further action is reflected by the record until October 13, 1982, when appellants received notice from the clerk of the court that their complaint would be dismissed "unless a showing of good cause for retention as an active case is made...." Appellants' attorney filed an affidavit averring that settlement negotiations were in process and that if a settlement were not reached "within the next six to eight weeks," a Note of Issue would be filed. The court retained the case on its calendar.

On February 16, 1984, a second notice was sent to the appellants by the clerk. Appellants' counsel submitted another affidavit, reciting that efforts had been made to settle the case and saying that a Note of Issue would be filed if there were no settlement. Counsel for each respondent then filed a motion for involuntary dismissal under I.R.C.P. 41(b). Affidavits in support of these motions stated that there had been no contact with appellants' counsel since June, 1981. In response, Tom Rudy, a partner in Rudy-Mai Farms, filed an affidavit simply explaining why, in his view, the claim against respondents was meritorious. After a hearing, the district court granted the respondents' motion to dismiss.

Rule 41(b), I.R.C.P., provides in pertinent part as follows:

For failure of the plaintiff to prosecute or to comply with these rules or any order of the court a defendant may move for dismissal of an action or of any claim against him.... If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision ... operates as an adjudication upon the merits.

In Jensen v. Doherty, 101 Idaho 910, 911, 623 P.2d 1287, 1288 (1981), our Supreme Court articulated the purpose of dismissal under Rule 41(b):

Involuntary dismissal under I.R.C.P. 41(b) for failure to prosecute is in the nature of a sanction. It is a necessary final recourse available to the court to protect its processes and other litigants from abuse. It is a remedy to be sparingly used, but it is always available. See, e.g., 9 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE, CIVIL § 2370 (1971).

More recently, in Bartlett v. Peak, 107 Idaho 284, 688 P.2d 1189 (1984), the Court enunciated guidelines to be employed when dismissing an action under I.R.C.P. 41(b). A judge should consider the length of delay occasioned by the failure to prosecute; the justification, if any, for such delay; and the resultant prejudice. This balancing decision is a discretionary function and the judge's decision will not be overturned on appeal absent an abuse of discretion. Jensen v. Doherty, supra; Kirkham v. 4.60 Acres of Land, 100 Idaho 781, 605 P.2d 959 (1980). Here, the appellants, who are now represented by counsel different from the attorney who represented them at the outset of the case, urge that discretion was abused because the Bartlett criteria were not satisfied and because the judge stated no reasons for his decision. We disagree.

The record in this case is a testament to delay. The case had been pending approximately six years when it was dismissed. The only justification offered for such delay was the controverted averment by appellants' attorney that settlement negotiations were pending. Settlement negotiations may temporarily excuse a plaintiff's failure to prosecute his claim; but when the negotiations have become dormant, or if excessive time has elapsed without result, prosecution must resume. Coutts v. Crider, 549 P.2d 1019 (Kan.1976). Prejudice may be presumed to flow from unexcused and unreasonable delay. Alexander v. Pacific Maritime Association, 434 F.2d 281 (9th Cir.1970), cert. denied, 401 U.S. 1009, 91 S.Ct. 1254, 28 L.Ed.2d 545 (1971). Prejudice in this case also is demonstrated by unrefuted statements in the respondents' affidavits that witnesses had become difficult to locate and that the witnesses were unable to recall pertinent facts.

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11 cases
  • Aberdeen-Springfield Canal v. Peiper, 23912.
    • United States
    • United States State Supreme Court of Idaho
    • May 26, 1999
    ...to flow from an unexcused and unreasonable delay." Nagel, 111 Idaho at 824, 727 P.2d at 1252 (quoting Rudy-Mai Farms v. Peterson, 109 Idaho 116, 118, 705 P.2d 1071, 1073 (Ct.App. 1985)). This Court, however, has "explicitly disavowed" cases which allow Rule 41(b) dismissals based on presume......
  • Systems Associates, Inc. v. Motorola Communications and Electronics, Inc.
    • United States
    • United States State Supreme Court of Idaho
    • August 8, 1989
    ...failure to move the case, any justification for the delay, and the resultant prejudice to the defendant. Rudy-Mai Farms v. Peterson, 109 Idaho 116, 705 P.2d 1071 (Ct.App.1985). In Grant [v. City of Twin Falls, 113 Idaho 604, 746 P.2d 1063 (Ct.App.1987) (petition for review denied) ] our Cou......
  • Gerstner v. Washington Water Power Co., 19295
    • United States
    • United States State Supreme Court of Idaho
    • August 7, 1992
    ...such delay, and the extent of any resultant prejudice. Bartlett v. Peak, 107 Idaho 284, 688 P.2d 1189 (1984); Rudy-Mai Farms v. Peterson, 109 Idaho 116, 705 P.2d 1071 (Ct.App.1985). The decision is a discretionary one and will not be overturned on appeal absent a showing of abuse of that di......
  • Roberts v. Verner, s. 17194
    • United States
    • Court of Appeals of Idaho
    • August 3, 1989
    ...to prosecute; (2) the justification, if any, for such delay; and the resultant prejudice of the delay. Rudy-Mai Farms v. Peterson, 109 Idaho 116, 705 P.2d 1071 (Ct.App.1985). This balancing decision is a discretionary function and the district court's decision will not be overturned absent ......
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