*1 CATTLE, CO., HOBBLE-DIAMOND Appellant, Plaintiff v. CO.,
TRIANGLE IRRIGATION
Respondent.
Defendant
No. 94-507.
May 19,
Submitted on Briefs
1995.
July
Decided
St.Rep. 596.
For Billings. Potts; Jardine, Stephenson, T. Blewett Respondent:
For Steven Weaver, Falls. & Great of the Court. Opinion
JUSTICE GRAYdelivered Company appeals Cattle from Hobble-Diamond Court, Judicial District Grass dismissal entered the Sixth Sweet premised grant Triangle Irriga- on the court’s County, which was failure to Company’s tion to dismiss for Wereverse. (Hobble-Diamond) Company Hobble-Diamond Cattle filed against Triangle Irrigation Company (Triangle) alleg- action ing pivots that certain Shortly in 1983were defective or installed. before
Triangle improperly trial in leave sought the scheduled to amend alleged problems to add a claim complaint pivot; based with another *3 amendment. District Court refused to authorize the the July judgment A trial in 1989 resulted in a in bench only issue of court’s appealed, raising favor. Hobble-Diamond the the reversed, of motion for to amend the We complaint. denial its leave discretion, holding that the court had abused its and remanded for proceedings. Triangle Irrigation Cattle further Hobble-Diamond v. (1991), 322, 1153, 1156. 326, 815 249 Mont. P.2d Remittitur issued on 4, 1991. September judge and, the sitting
Hobble-Diamond to substitute there- moved judge in after, Triangle moved to substitute the called to assume jurisdiction Larry Moran jurisdiction. The Honorable W. assumed was to 15, 1991. for Hobble-Diamond allowed November Counsel February 1992, for Hobble-Dia- 21, and new counsel withdraw on 20,1992. 1992, Hobble- In June appearance filed on March mond an a conference. formally requested Diamond 1993, entry 22, April and dated By oral order minute early 1993; May telephonic conference for ordered a status Court initiate call. also were parties The was to Hobble-Diamond time; party to that neither report prior a to file status ordered 25, May for telephonic conference was rescheduled The complied. 1993, by request stipulation of Hobble-Diamond’s counsel and by May Triangle. The 25 status conference did not take and place why clearly regarding facts have not been established. docket any attempt and, does not reflect to indeed, reschedule regarding further occurred the case. 1994, May, approximately year later, In one Triangle moved for 41(b), M.R.Civ.R, pursuant dismissal to Rule for failure to orally argued. motion briefed and The District Court orally and, motion for granted after motion reconsideration Hob- ble-Diamond, memorandum entered its dismissal. appeals. Hobble-Diamond
Did the District Court abuse its in granting Triangle’s discretion 41(b), M.R.Civ.R, Rule to prosecute? motion dismiss failure to 41(b), M.R.Civ.R, district
Rule authorizes a court dismiss an prosecute upon action for failure to ofthe defendant. The court ruling motion, has broad discretion on such a and “its decision will only be overturned if it has abused that discretion.” Westland v. (cita (1993), 259 Mont. 856 P.2d Weinmeister omitted). tions
Decisions on motions to dismiss for failure to prosecute entail
balancing
competing public policy
careful
of the
interests
resolv
ing
encouraging
lawsuits on the merits and
prompt disposition of
(citation omitted).
Westland,
at
disputes.
end,
856 P.2d
To that
we have established four factors to
considered in determining
dismissing
whether a
court
an
abused
discretion
action
district
1)
.41(b),
under
plaintiff’s diligence
M.R.Civ.R:
in prosecuting
2)
3)
claim;
plaintiff’s delay;
defense caused
4)
availability
sanctions;
alternate
existence of a
(citation
danger
case is in
of dismissal.
With District Court observed Hobble-Diamond at issue in case in the action filed in 1986 and remittitur nothing done September this Court *4 are, indeed, We note that the first time correct. They two references not, however, are time periods relevant here in that to remittitur prior appeal bearing in the first have no diligence on Hobble-Diamond’s during the since period remittitur.
41 Moreover, characterization of Hobble-Dia- the District Court’s nearly three since remittitur of for the mond’s total lack nor fair Hobble-Diamond. Hobble-Diamond correct to is neither and, judge, the substituted counsel sitting to substitute moved The a conference. fact that ten requested of June entry setting up the and the minute request passed months between delay by attributed to Hobble-Dia- status conference cannot be the the scheduling, is true of the time between and mond. same Thus, the nonoccurrence, the conference. based on record before of appropriate clear the time consideration us, period it is year diligence of in this is the Hobble-Diamond’s lack telephonic the conference and Trian- passed between aborted which prosecute. to for failure to Such of time gle’s period motion dismiss failure unreasonable, although se Hobble-Diamond’s to per is not complete the conference after its failure to it as ordered reschedule be condoned. cannot factor, prejudice the Court ob
Regarding
while
not
had
established the reasonable
served
necessary
prejudice
to
to overcome the
pursuant
excuse
Westland
(see Westland,
delay
1377),
unreasonable
856
at
presumed
an
P.2d
prejudice
Triangle
the court focused on
actual
it determined
diligence.
of
That
suffered as result of Hobble-Diamond’s lack
actual
prejudice
lapse
irrigation
of eleven
since the
based
by Hobble-Diamond,
system
system
and the sale of the
resulting
availability
purposes.
lack of
for trial
above,
time
Again,
lapse
as discussed
the total
system
is
transaction
which this case is based
not
irrigation
41(b), M.R.Civ.P.,
context of a Rule
relevant
dismiss
to
of time which
relevant
passage
for failure
is
to
diligence caused
prejudice
Hobble-Diamond’s lack of
actual
whether
year
telephonic
is
one
between the aborted
Triangle
period
to
year
to
one
May
dismiss
disagree
stale,
not
that this case is now somewhat
later. While we do
one-year
prejudice
did
establish actual
caused
Triangle
not
delay
are concerned. Nor is the fact that the
period with which we
system may
purposes particularly
not
available for trial
be
period
during
that the
was sold
appears
relevant since it
Thus,
system’s
appeal.
in the first
while
prior to remittitur
availability
may
problematic
parties,
both
possible lack of
fairly
to have
in that
can
be said
resulted
Triangle
delay
issue here.
*5
“availability
of alternate sanctions” factor was not directly
addressed
the District Court in its memorandum accompanying
of dismissal. The
merely
court
Westland,
relied on
which we held that the district court did not abuse its discretion in
deciding that it had “no other choice” than to dismiss. See Westland,
Rule dismissals should imposed sparingly and must remain the exception rather than Here, the rule. it is clear that other sanctions were available. The court could have sanctioned counsel and/or Hobble-Diamond for failure comply with its order placing responsibility initiating the scheduling conference on It Hobble-Diamond. could have set the case for immediately, trial remedy we adequate determined was in Doug Estate, Johns Real Inc. (1990), v. Banta Mont. 805 P.2d clear, however, It also is nothing balancing in the of factors mandated Westland requires unavailability total of other sanc prior tions to dismissal for failure to prosecute under 41(b), Rule Indeed, M.R.Civ.P. such a requirement would render involuntary 41(b) dismissal pursuant to Rule an impossibility since, as a practical matter, alternative sanctions always would be available to a court. Thus, a total absence of alternative sanctions necessary. is not involuntary
An dismissal is a severe Doug Johns, result. See P.2d at 1303. Under the circumstances presented by we “availability determine that the of alternate sanctions” factor weighs given Hobble-Diamond’s favor the plethora of alternate sanctions and remedies available period delay and the of at issue.
Finally, with regard factor, to the “warning” the District Court gave warning no direct to Hobble-Diamond that danger its case was in of dismissal. Neither any Westland nor rule specifically requires a court give warning, such a it although practice many is the of trial courts through to do so an order to show cause or other device. While such a is the practice, better we are not impose inclined to such a burden the diligent prosecution of a case on the courts. For purposes considering factors, however, Westland formally that the court did not is sufficient to observe warn Hobble- danger that its case was in of dismissal. Diamond one-year period do not condone counsel’s lack of attention over a We charge. considering in his In the Westland to this case factors for competing policy purposes balancing public interests resolv- encouraging prompt disposition on the merits and ing lawsuits however, we conclude that the District Court disputes, abused its 41(b), M.R.Civ.R, in granting Triangle’s discretion dismiss.
Reversed. TURNAGE, HUNT,
CHIEF JUSTICES NELSON, JUSTICE LANGTON, Judge, TRIEWEILER and JEFFREY H. concur. *6 JUSTICE WEBER dissents as follows: that, in opinion applying concludes the four Westland factors to this the District Court abused its discretion in granting 41(b) I disagree dismiss. with that conclu- and, therefore, opinion. sion dissent from the It is to note that significant Judge juris- Moran assumed diction November essentially and Hobble-Diamond had years done nothing during except next three for the appointment of new counsel.
In the District Judgment Court’s Memorandum and of Dismissal 20,1994, dated September points the District Court out that the case 1986, eight years ago, was filed in more than and arose from defen- Triangle selling plaintiff system dant an irrigation shortly points trial, 1983. The court out that before Hobble-Dia- attempted upon mond to add another claim based alleged problems with number five. The Court pivot Supreme reversed the District permit Court’s 1991 decision because of the failure to that amend- ment. The District Court then stated: 1994,
It is
any
now
Hobble-Diamond still has not filed
pleading
upon pivot
discovery
to state
claim based
no. 5. No
has
conducted,
activity by
been
and there has been no
Plaintiff in
attorneys
years
other than
change
ago.
since
its
two
years old;
subject
approxi-
This case is more than 8
matter is
mately
years
At
it
that
argument
acknowledged
old.
oral
was
plaintiff
irrigation system
[Hobble-Diamond] has sold the
and the
added.)
located,
years ago.
ranch
(Emphasis
on which was
several
applied
court then discussed the rules to be
and specifically-
analyzed
the case based
Westland four factors. The District
Court stated in
to those factors:
set forth in
Applying the factors
Court determines
this action should be dismissed:
diligently prosecuted
alleged
1. Plaintiff has not
its
claim.
Nearly
passed
system
have
since the irrigation
installed,
eight years
and more than
have passed
since
Although
Supreme
this action was commenced.
Court
in 1991 that Plaintiff could amend
Complaint
ordered
its
upon pivot
nearly
to assert a claim based
no.
three more
passed
have now
with no
at all. Plaintiff has
diligent
prosecuting
alleged
not
reasonable or
been
Westland, ...
in Westland. and defendant’s Motion to filing plaintiff’s Complaint Dismiss, in the case for and there been facts, the court had year. than a ... Based on those more “ judgment and enter final other choice’than to dismiss ‘no Here, the facts are even more ... against Westland.” eight filed the action compelling: years. nearly three has taken no actin for ago omitted.] [Citations of a to Plaintiff that dismissal could
4. The factor Here, this Court occur is also controlled Westland. set year, conference last at which it ordered telephone status the Court parties confer with status, Although and the issuance of a order. so, never initiated the ordered to do Plaintiff call. made no reset aborted Plaintiff effort thereafter and made no whatsoever in this conference, status efforts its Motion to Dismiss. ... until Defendant filed added.) (Emphasis it,
Finally, Court, the Court reminds the Plaintiff that not the ultimate responsibility prosecute claims, conduct has the discovery, and its case for trial. ... prepare analysis that the District Court’s ofthe I conclude Westland factors does not demonstrate an abuse of discretion. limited to a of an finding
Our test is abuse of discretion. When I all of the facts as set forth in the District Court’s consider memoran- emphasized and the facts in the I opinion, dum and con- no basis to hold there has been an clude there is which abuse of discretion.
I dissent.