No. 02-590 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 342N 

VICTOR ALLAN SMITH, 

Plaintiff and Appellant, 

v. 

RICK VAUGHN, CENTURY 21 AGENT, 

CENTURY 21 REAL ESTATE CO., et al., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Twenty-First Judicial District, 

In and for the County of Ravalli, 

The Honorable Jeffrey H. Langton, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Victor Allan Smith (pro se), Shelby, Montana 

For Respondents: 

(No Respondents' brief filed) 

Submitted on Briefs: December 13, 2002 

Decided: December 23, 2002 

Filed: 

__________________________________________ 

Clerk
2 

Justice Jim Regnier delivered the Opinion of the Court. 

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1996 Internal Operating Rules, the following decision shall not be 

cited as precedent but shall be filed as a public document with the 

Clerk of the Supreme Court and shall be reported by case title, 

Supreme Court cause number, and result to the State Reporter 

Publishing Company and to West Group in the quarterly table of 

noncitable cases issued by this Court. 

¶2 Appellant Victor Smith appeals from the order of the TwentyFirst Judicial District Court, Ravalli County, which dismissed his 

complaint against the Respondents, Rick Vaughn and Century 21 Real 

Estate Co., et al. We reverse and remand. 

¶3 The sole issue on appeal is whether the District Court erred 

when it dismissed Smith’s cause of action. 

BACKGROUND 

¶4 On June 7, 2000, Smith, appearing pro se, filed a complaint 

against the Respondents which stated, “Plaintiff alleges ‘deceptive 

practices’ and the ‘illegal’ confiscation of real property by the 

defendants.” Smith sought compensatory and punitive damages from 

the Respondents. On the same day Smith filed the complaint, he 

also filed a “Motion For Leave to File a Supplemental Complaint.” 

The District Court granted Smith leave to file a “supplemental” 

complaint as well as two subsequent extensions of time to file the 

same. 

¶5 On August 25, 2000, Smith filed two motions with the District 

Court, a motion for leave to obtain a subpoena duces tecum and a 

“Motion For Leave for All Copies of the Court Minutes and 

Transcripts” from a criminal proceeding in which Smith pled guilty 
3 

to aggravated assault. The District Court granted Smith’s first 

motion and directed Smith to submit a proposed subpoena to the 

court. The District Court denied Smith’s second motion. In the 

ensuing months, Smith filed similar motions and proposed orders 

which the District Court denied. 

¶6 On August 8, 2001, Smith submitted a letter to the District 

Court seeking advice on how to proceed. Smith claimed that “as a 

Pro-Se litigant . . . [he] should be held to less stringent 

standards of law” and sought counsel on how “to expedite this 

matter.” On September 14, 2001, the District Court issued a 

Memorandum in response to Smith’s letter. The Memorandum 

summarized the procedural history of the case and concluded with 

the following: 

This action is a civil suit somehow concerning a 

transaction involving real property. Under Montana Law, 

Smith is perfectly entitled to represent himself in this 

case, but he has not shown that he should be held to any 

lesser standards of legal knowledge and conduct than that 

expected of licensed attorneys at law. In addition, 

Montana judges are not allowed to render legal advice or 

engage in ex parte communications with litigants. 

Since the Plaintiff has neglected to amend or 

“supplement” his complaint to specify his claimed cause 

of action against the Defendants and has neglected to 

show why [he] needs discovery from third parties to do 

so, the Court is left to speculate as to why this 

discovery is necessary. 

The Plaintiff is hereby granted one final extension 

until October 10, 2001, to amend his complaint to state 

specific causes of action against the Defendants 

sufficient to comply with Rule 8(a), M.R.Civ.P. In 

addition, if the Plaintiff continues to seek discovery 

from third parties, the Plaintiff must make showing that 

such discovery is necessary to the effective presentation 

of his case and is not otherwise obtainable. Moreover, 

the Plaintiff needs to be aware that he is not entitled 

to preparation of transcripts of court proceedings at 

public expense for use in a civil case of this nature. 

This is particularly true when Plaintiff has made no 

effort to show how there is even any relationship between 
4 

the two cases. 

IT IS THEREFORE ORDERED that Plaintiff file an 

Amended Complaint that fully complies with Rule 8(a), 

M.R.Civ.P., on or before October 10, 2001, or this case 

will be dismissed. 

The District Court sent this Memorandum to Smith at the Missoula 

Regional Prison via certified mail. 

¶7 Soon thereafter, Smith filed a “Motion For Copy of 

District Court File.” Smith acknowledged the October 10, 2001, 

deadline but submitted that he could not comply with the order 

without the information requested in the motion. The District 

Court denied the motion on October 22, 2001. Smith did not file a 

“supplemental” complaint within the time allotted and, on October 

25, 2001, the District Court entered the following order: 

Plaintiff having failed to file an Amended Complaint 

within the time allowed by this Court in its Memorandum 

Order filed September 20, 2001, and no extension of that 

time having been requested or granted, and good cause 

otherwise appearing, 

IT IS ORDERED that this case is hereby DISMISSED. 

Smith appeals from the District Court’s order of dismissal. 

DISCUSSION 

¶8 Did the District Court err when it dismissed Smith’s 

cause of action? 

¶9 The facts of this case make it somewhat difficult to apply a 

traditional standard of review analysis. As provided in the 

Montana Rules of Civil Procedure, a district court may dismiss a 

complaint for various reasons. Rule 12(b)(6), M.R.Civ.P., 

authorizes a district court to dismiss a complaint for failure to 

state a claim upon which relief can be granted. We review such 

dismissals to determine whether the court’s interpretation of the 
5 

law is correct. DuBray v. Farmers Ins. Exchange, 2001 MT 251, ¶ 8, 

307 Mont. 134, ¶ 8, 36 P.3d 897, ¶ 8. Rule 41(b), M.R.Civ.P., 

authorizes a district court to dismiss an action for failure “to 

prosecute or to comply with these rules or any order of court . . . 

.” We review orders in the nature of a Rule 41(b), M.R.Civ.P., 

dismissal for an abuse of discretion. McKenzie v. Scheeler (1997), 

285 Mont. 500, 507, 949 P.2d 1168, 1172. 

¶10 Here, the Respondents clearly did not file a Rule 12(b)(6), 

M.R.Civ.P., motion or any other motion to dismiss for that matter. 

 Further, the District Court did not indicate in its Memorandum or 

order of dismissal a justification for dismissing the action. 

¶11 In its September 14, 2001, Memorandum, the District Court 

warned Smith that if he failed to file an amended complaint “on or 

before October 10, 2001 . . . this case will be dismissed.” The 

District Court cited no authority for the proposed action. In a 

subsequent motion, Smith acknowledged the admonition stating, 

“Currently, the Court has ordered that the Plaintiff Amend his 

complaint on or before October 10, 2001.” Nevertheless, Smith 

failed to file the amended complaint within the time allowed. 

Therefore, on October 25, 2001, the District Court dismissed 

Smith’s cause of action as it warned in its prior Memorandum. 

However, the District Court again failed to cite any authority for 

its dismissal. 

¶12 Clearly, it was within the District Court’s discretion to 

preclude the filing of an amended complaint following expiration of 

the time allowed. To the court’s credit, it provided Smith with 

multiple opportunities to comply. However, the record indicates 

that neither Smith, nor the Respondents moved to dismiss the 
6 

original complaint. While Smith failed to timely file an amended 

complaint, the record shows that the original complaint remained in 

effect. As indicated above, the District Court not only warned 

Smith that it would not accept an amended complaint later than 

October 10, 2001, but it also threatened to dismiss the entire 

action, with prejudice, for failure to file the amendment. 

However, the District Court offered no authority in support of this 

drastic measure in its September 14, 2001, Memorandum or final 

order of dismissal. 

¶13 One might argue that the District Court’s order implies 

dismissal for a failure to comply with Rule 8(a), M.R.Civ.P. 

Further, an argument could be made that the District Court 

dismissed the cause of action for failure to comply with a court 

order, as provided in Rule 41(b), M.R.Civ.P., assuming there is a 

defect in the original complaint. However, the District Court did 

not give Smith any indication as to why it would impose the 

ultimate penalty, dismissal with prejudice. On appeal, we hesitate 

to speculate on the District Court’s rationale and, therefore, 

decline to affirm such a ruling absent any supporting authority. 

Therefore, for the foregoing reasons, we hold that the District 

Court erred when it dismissed the action. 

¶14 Reversed and remanded for proceedings consistent with this 

Opinion. 

/S/ JIM REGNIER 

We Concur: 

/S/ KARLA M. GRAY 

/S/ TERRY N. TRIEWEILER 

/S/ PATRICIA COTTER 
7 

/S/ W. WILLIAM LEAPHART