Timber Tracts, Inc. v. Fergus Elec. Co-op., Inc.

• Decision Date: 03 March 1988
• Docket Number: No. 87-407,87-407
• Citation: 231 Mont. 40,753 P.2d 854,45 St.Rep. 415
• Parties: TIMBER TRACTS, INC., a Montana corp., Plaintiff and Appellant, v. FERGUS ELECTRIC COOPERATIVE, INC., a Montana corp., Defendant and Respondent.
• Court: Montana Supreme Court

Page 854

753 P.2d 854

231 Mont. 40

TIMBER TRACTS, INC., a Montana corp., Plaintiff and Appellant, v. FERGUS ELECTRIC COOPERATIVE, INC., a Montana corp. Defendant and Respondent.

No. 87-407.

Supreme Court of Montana.

Submitted on Briefs Feb. 4, 1988.

Decided March 3, 1988.

Floyd A. Brower, Roundup, Ralph Herriott, Billings, for plaintiff and appellant.

Herndon, Harper & Munro; Donald R. Herndon, Billings, William A. Spoja, Jr., Lewistown, for defendant and respondent.

HARRISON, Justice.

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 of the plaintiff to prosecute or to comply with these rules 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 district 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 Mexicana, 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 not show active and diligent pursuit of the...