No. 87-288 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

ILENE COX AND ELEANOR DUNN, 

Plaintiffs and Appellants, 

GILBERT MYLLYMAKI, EVAN H. GRAY, 

and EUGENE MYLLYMAKI, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kelly A. Jenkins, Helena, Montana 

George Richardson, Richardson and Richardson; 

Butte, Montana 

For Respondent: 

John F. Iwen, Great Falls, Montana 

Submitted on Briefs: February 4, 1988 

Decided: April 6, 1988 

Filed: +/d/&~!? 

Clerk 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

Plaintiffs appeal the decision of the District Court of 

the Eighth Judicial District, Cascade County, granting 

defendants motion to dismiss for failure to prosecute 

pursuant to M.R.Civ.P. 41(b). 

The plaintiffs filed their complaint in the underlying 

cause on July 30, 1984. The first defendants were served on 

August 15, 1984. The defendants filed an answer October 31, 

1984 and filed an amended answer five days later. In 

September 1984, plaintiff Cox, who along with Dunn was named 

as an heir in Lempi Matilla's will, filed for appointment as 

special administrator for the estate of Lempi Matilla. 

Matilla was the most recent decedent and sole heir of William 

Matilla, whose estate is the subject of the underlying cause. 

The underlying cause involved alleged improprieties in the 

documentary transfer of William Matilla's land and alleged 

subsequent fraud in the administration of Lempi Matilla's 

estate. Cox1 s petition was denied by the probate court, so 

she appealed the decision to the M.ontana Supreme Court. The 

Supreme Court upheld the probate court on May 9, 1986. See 

In the Matter of the Estate of Lempi Matilla, Deceased (Mont. 

1986), 718 P.2d 343, 43 St.Rep. 797. The defendants filed 

their motion to dismiss for want of prosecution under 

M.R.Civ.P. 41(b) on December 29, 1986. On May 18, 1987 the 

District Court granted defendants' motion to dismiss for 

failure to prosecute. 

The issue on appeal is whether the District Court 

committed reversible error when it granted the defendants' 

motion to dismiss for failure to prosecute pursuant to 

M.R.Civ.P. 41 (b! . We reverse. 
Rule 41(b), M.R.Civ.P., governs the dismissal of a claim 

for failure to prosecute. 

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. 

The granting of a motion to dismiss for failure to prosecute 

will not be overturned unless there is an abuse of 

discretion. "It is within the discretion of the trial court 

to dismiss an action if it has not been prosecuted with 

reasonable diligence. It is presumed that the trial court 

acted correctly and its decision will not be overturned 

without a showing of an abuse of discretion." Cremer v. 

Braaten (1968), 151 Mont. 18, 19-20, 438 P.2d 553, 554. 

However, a judge's discretion is not unlimited and it 

must be remembered that courts "exist primarily to afford a 

forum to settle litigable matters between disputing parties. 

(citations omitted) " Brymerski v. City of Great Falls 

(1981), 195 Mont. 428, 431, 636 P.2d 846, 848. The factors 

to be weighed when determining whether a district court has 

abused its discretion include: ". . . the plaintiff's 

diligence, the trial court's need to manage its docket, the 

danger of prejudice to the party suffering the delay, the 

availability of alternate sanctions, and the existence of 

warning to the party occasioning the delay." Hamilton v. 

Neptune Orient Lines, Ltd. (9th Cir. 1987), 811 F.2d 498, 

499. 

One factor, the plaintiff's diligence, is a balance of 

unreasonable delay, prejudice to the defendant, and the 

existence of excuse for delay. Where there is unreasonable 

delay, prejudice to the defendant is presumed and the 

plaintiff must show an excuse for the inactivity. The burden 

shifts when a reasonable excuse is presented. Timber Tracts, 
I~c. v. Fergus Electric Cooperative, Inc., (Mont. 1988), 45 

St.Rep. 415, P.2d . A reasonable excuse is one that 

is not frivolous ". . . where a plaintiff has come forth with 

an excuse for his delay that is anything but frivolous, the 

burden of production shifts to the defendant to show at least 

some actual prejudice." Nealy v. Transportation Maritima 

Mexicans, S.A. (9th Cir. 1980), 662 F.2d 1275, 1281. The 

plaintiffs present the excuse that they were pursuing a 

collateral action. Plaintiff Cox was attempting to be 

appointed special administrator of the Lempi Mattila estate, 

which would have affected her position in this underlying 

action. This excuse accounts for much of the delay and is 

not frivolous. The burden then shifts and defendants have 

not demonstrated any actual prejudice. "A weak excuse may 

suffice if there has been no prejudice; an exceedingly good 

one might still do even when there has been some." Nealy, 

662 F.2d at 1280 quoting Larios v. Victory Carriers, Inc., 

(2nd Cir. 1963), 316 F.2d 63, 67. 

Two other important factors, the availability of 

alternative sanctions and the existence of a warning to the 

party causing the delay were not considered in this case. 

The granting of a dismissal pursuant to Rule 41(b) is more 

difficult to sustain when there is no warning and no 

exploration of possible alternative sanctions. Hamilton, 811 

F.2d at 500. In view of all these considerations there was 

an abuse of discretion by the trial court. Reverse. 

We Concur: 

A