NO. 95-125
IN THESUPREMECOURTOFTHESTATE OFMONTANA 1995

CHARLESM. CRUIKSHANK III,

Plaintiff andAppellant,
v SARAHB. CRUIKSHANK, a/k/a SARAHK. BOWER,

Defendant and Respondent

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade, The Honorable John M. McCarvel, Judge presiding.

COUNSELOFRECORD:

For Appellant: Douglas C. Allen, Corder andAllen, Great Falls, Montana For Respondent: C. W.Leaphart, Leaphart Law Firm, Helena, Montana

Filed: Submitted onBriefs: October 19, 1995 Decided: December 21, 1995Chief Justice J. A. Turnage delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal Operating Rules, the following decision shall not be cited asprecedent andshall bepublished by its filing asapublic document with the Clerk of the Supreme Court and byareport of its result to State Reporter Publishing Company and West Publishing Company. Charles M.Cruikshank III (Cruikshank) appeals the decision of the Eighth Judicial District Court, Cascade County, dismissing his complaint against Sarah K. Bower (Bower) for lack of prosecution. Weaffirm. The issue on appeal is whether the District Court erred in dismissing Cruikshank's complaint for lack of prosecution. Cruikshank filed a complaint on December 18, 1987, and an amended complaint on January 8, 1990, in the Eighth Judicial District Court, Cascade County, seeking to domesticate two foreign judgments from the State of Washington against Bower. Bower filed motions to dismiss the respective complaints. OnJune 22, 1990, Cruikshank moved to voluntarily dismiss his complaint so that he could proceed with his cause of action in federal court. The state court claim was not dismissed and Bower filed a counterclaim against Cruikshank. Cruikshank failed to respond to Bower's counterclaim anddefault wasentered against him onApril 10, 1991. OnOctober 30, 1991, Cruikshank moved the District Court to set aside the default onthe counterclaim. Nofurther action wastaken
on this case, and on November 10,~1994, Bower moved the court to dismiss Cruikshank's complaint for lack of prosecution pursuant to 2Rule 41 (b), M.R.Civ.P. After briefing by both parties, the court

granted Bower's motion and dismissed Cruikshank's complaint. Cruikshank appeals from the District Court's order dismissing his complaint. Did the District Court err in dismissing Cruikshank's complaint for lack of prosecution? Cruikshank argues that the District Court erred bydismissing his complaint based on the criteria set forth in this Court's previous opinion in DeJana v. Oleson (19941, 264Mont. 62, 869 P.Zd
785. Wereview adistrict court's dismissal of acivil action for failure to prosecute to determine whether the court abused its discretion. Becky v. Norwest Bank (1990), 245 Mont. 1, 798 P.2d 1011. In DeJana, 869 P.Zd at 787, this Court set forth the factors which adistrict court must consider before dismissing an action for failure to prosecute. Those factors are: 1. the plaintiff's diligence in prosecuting his or her claims;
2. the prejudice to the defense caused by the plaintiff's delay;
3. the availability of alternate sanctions; and
4. the existence of awarning to plaintiff that his or her
case is in danger of dismissal. Over seven years passed between Cruikshank's filing of his initial complaint and the District Court's dismissal. Cruikshank argues that the court failed to act onhis 1992 motion to set aside the default judgment entered in favor of Bower onher counterclaim.

3Heinsists that the delay from that point onis attributable to the

District Court and should therefore not begrounds for dismissal. Wedisagree. While the court failed to act on Cruikshank's motion to set aside the default judgment onthe counterclaim, this related only to the counterclaim. The court's failure to act on Cruikshank's motion did not prevent him from proceeding on his amended complaint. Asthe plaintiff, Cruikshank hadanaffirmative duty to process his complaint. Cruikshank took few if any affirmative steps to bring this cause of action to trial or to reach a settlement. We conclude that Cruikshank was not diligent in prosecuting his claim and that the delay was not attributable to the District Court. Concerning the second criteria, whether the defendant was prejudiced by the delay, this Court has previously held that once
anunreasonable delay has been shown, the plaintiff has the burden of establishing a reasonable excuse for the delay. Calaway v. Jones (1978), 177Mont. 516, 520, 582 P.2d 756, 758; Shackleton v. Neil (19831, 207Mont. 96, 102, 672 P.2d 1112, 1115. As discussed above, Cruikshank has not been able to attribute the delay to the District Court nor does hepresent anyother reasonable explanation for the seven-year lapse of time since the filing of his initial complaint. We conclude that the delay in this case was unreasonable and Cruikshank has failed to establish a reasonable
excuse for it. Thedelay is therefore presumptively prejudicial to the defendant, Bower.Welikewise agree with the District Court that after seven

years of inactivity, noother reasonable sanctions exist. Nothing in the record reveals that, given another chance, Cruikshank would diligently prosecute his claim and he suggests no other alternatives which appear reasonable to this Court. Weconclude that noavailable sanctions exist which would not further prejudice Bower.Finally, Bower filed a motion to dismiss for lack of prosecution. Both parties were given ample opportunity to brief the issue and both in fact submitted arguments to the District Court. Weconclude that Cruikshank was given sufficient notice that his complaint was in jeopardy of being dismissed. Wehold that the District Court did not abuse its discretion for dismissing Cruikshank's complaint for failure to prosecute. AFFIRMED.

Chief Justice
Weconcur:

Justices

### Justice Terry N.Trieweiler dissenting.

I dissent from the majority's conclusion that the District Court did not abuse its discretion when it dismissed the plaintiff's complaint for failure to prosecute. The principal problem with this casewasafailure to adjudicate. Plaintiff's original complaint wasfiled onDecember18, 1987. Amotion to dismiss wasfiled within 30days. Briefs werefiled in support and in opposition to that motion. However, the District Court simply failed to rule onthe motion. OnJanuary 8, 1990, the plaintiff filed anamendedcomplaint. Twoweeks later, the defendant filed amotion to dismiss that complaint. Again, briefs were filed both in support of and in opposition to the defendant's motion. However, once again the District Court simply failed to issue anyorder. Finally, onJune22, 1990, having hadnoresolution of either motion to dismiss, and therefore, no answer having been filed, plaintiff simply movedthe court to dismiss his claim in state court without prejudice so that he could refile it in federal court. Noobjection appears to have been filed to that motion. However, neither did the District Court ever grant or deny it. OnFebruary 5, 1991, with still noanswer to the plaintiff's amendedcomplaint, thedefendant filed acounterclaim inwhich she pointed out that during the pendency of the state court action plaintiff hadapparently filed acomplaint seeking similar relief in the federal district court. In her counterclaim, shesought sanctions pursuant to Rule 11 for vexatious and groundless 6litigation and damages for abuse of process. OnApril 10, 1991,

the defendant sought and received entry of the plaintiff's default for not having responded to her counterclaim in atimely fashion. OnOctober 31, 1991, plaintiff moved to set aside the default which had been entered by the clerk without notice to the plaintiff. That motion was again fully briefed but never ruled upon. Prior to that date, on September 30, 1991, plaintiff had apparently attempted to conduct discovery because onOctober 28of that same year the defendant filed objections to plaintiff's interrogatories and requests for production. OnNovember 14, 1994, while all of the aforementioned loose ends were pending in the District Court, defendant filed amotion to dismiss the amended complaint for lack of prosecution pursuant to Rule 41(b), M.R.Civ.P. After briefs were submitted, but before issuing any warning to the plaintiff, andwithout consideration of alternative sanctions, the District Court issued its order dismissing plaintiff's amended complaint for lack of prosecution on December 29, 1994. I conclude that the District Court abused its discretion when it dismissed plaintiff's amended complaint for two reasons. First, assuming that the four factors relied upon by the majority and set forth in DeJanav.OIeson (1994), 264 Mont. 62, 869 P.2d 705, have any merit, their application does not justify dismissal in this case. (1) It was not the plaintiff's lack of diligence which precluded resolution of this dispute. It was the District Court's lack of diligence. It would have been unreasonable and irresponsible to 7

### incur further expenseof litigation while afully briefed motion to

dismiss the plaintiff's amended complaint WFLS 

### pending. (2) Absolutely noconsideration wasgiven inthis caseto alternate sanctions, such as imposition of costs, attorney fees, or other damageswhich mayhavebeensustained bythe defendant asaresult of delay. Toarbitrarily conclude, asthe majority does, that "no other reasonable sanctions exist," makes a mockery of the requirement that alternate sanctions beconsidered. (3) Nowarning
was given to the plaintiff that his case was in danger of dismissal. Notice of amotion to dismiss for lack of prosecution is not awarning. Therequirement that there beawarning presumes that the party being warned has an opportunity to cure the situation about which he is being warned. Amotion to dismiss affords no such opportunity. It simply invites a response or argument regarding the merits of the motion. The majority's simplistic approach to this issue again renders meaningless the requirement that the District Court provide awarning. Second, the whole idea of the DeJana

### criteria is atypically presumptuous and uninformed judicial approach to how attorneys should handle their cases. Thecriteria reflect the inclination of appellate courts to ignore commonsense solutions whenever a bureaucratic formula canberelied oninstead. Thesolution to delay in the district court is for the court to set acase for trial. However, only the district court cando that.

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### The penalty for lack of preparation is usually failure.

However, the attorney handling the caseis inthe best position to know what preparation is necessary for that case, and that preparation maynot bereflected byformal discovery. Thedistrict court, andonly thedistrict court, hasthe power to movecases to aconclusion. It strikes measoddwhendistrict courts refuse to dosoandthen punish oneof the parties whohas
no control over the matter. It strikes measeven more strange when this Court applies somearbitrary, irrelevant criteria to justify what the district court did. For these reasons, I dissent from the majority opinion. I would reverse the District Court's dismissal of the plaintiff's complaint.

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