NO. 95-125 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

CHARLES M. CRUIKSHANK III, 

Plaintiff and Appellant, 

v 

SARAH B. CRUIKSHANK, 

a/k/a SARAH K. 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. 

COUNSEL OF RECORD: 

For Appellant: 

Douglas C. Allen, Corder and Allen, Great Falls, 

Montana 

For Respondent: 

C. W. Leaphart, Leaphart Law Firm, Helena, Montana 

Filed: 

Submitted on Briefs: October 19, 1995 

Decided: December 21, 1995 
Chief 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 as precedent and shall be published by its filing as a public 

document with the Clerk of the Supreme Court and by a report 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. 

We affirm. 

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. On June 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 and default was entered against him on April 10, 1991. 

On October 30, 1991, Cruikshank moved the District Court to set 

aside the default on the counterclaim. No further action was taken 

on this case, and on November 10,~ 1994, Bower moved the court to 

dismiss Cruikshank's complaint for lack of prosecution pursuant to 

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Rule 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 by dismissing 

his complaint based on the criteria set forth in this Court's 

previous opinion in DeJana v. Oleson (19941, 264 Mont. 62, 869 P.Zd 

785. We review a district court's dismissal of a civil 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 a district 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 a warning 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 on his 1992 motion to set aside 

the default judgment entered in favor of Bower on her counterclaim. 

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He insists that the delay from that point on is attributable to the 

District Court and should therefore not be grounds for dismissal. 

We disagree. 

While the court failed to act on Cruikshank's motion to set 

aside the default judgment on the 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. As the plaintiff, Cruikshank had an affirmative 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 

an unreasonable delay has been shown, the plaintiff has the burden 

of establishing a reasonable excuse for the delay. Calaway v. 

Jones (1978), 177 Mont. 516, 520, 582 P.2d 756, 758; Shackleton v. 

Neil (19831, 207 Mont. 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 he present any other 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. The delay is therefore presumptively prejudicial to 

the defendant, Bower. 
We likewise agree with the District Court that after seven 

years of inactivity, no other 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. We conclude 

that no available 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. We conclude that Cruikshank was given sufficient notice 

that his complaint was in jeopardy of being dismissed. 

We hold that the District Court did not abuse its discretion 

for dismissing Cruikshank's complaint for failure to prosecute. 

AFFIRMED. 

Chief Justice 

We concur: 

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 case was a failure to adjudicate. 

Plaintiff's original complaint was filed on December 18, 1987. 

A motion to dismiss was filed within 30 days. Briefs were filed in 

support and in opposition to that motion. However, the District 

Court simply failed to rule on the motion. 

On January 8, 1990, the plaintiff filed an amended complaint. 

Two weeks later, the defendant filed a motion 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 any order. 

Finally, on June 22, 1990, having had no resolution of either 

motion to dismiss, and therefore, no answer having been filed, 

plaintiff simply moved the court to dismiss his claim in state 

court without prejudice so that he could refile it in federal 

court. No objection appears to have been filed to that motion. 

However, neither did the District Court ever grant or deny it. 

On February 5, 1991, with still no answer to the plaintiff's 

amended complaint, the defendant filed a counterclaim in which she 

pointed out that during the pendency of the state court action 

plaintiff had apparently filed a complaint seeking similar relief 

in the federal district court. In her counterclaim, she sought 

sanctions pursuant to Rule 11 for vexatious and groundless 

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litigation and damages for abuse of process. On April 10, 1991, 

the defendant sought and received entry of the plaintiff's default 

for not having responded to her counterclaim in a timely fashion. 

On October 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 on October 28 of 

that same year the defendant filed objections to plaintiff's 

interrogatories and requests for production. 

On November 14, 1994, while all of the aforementioned loose 

ends were pending in the District Court, defendant filed a motion 

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, and without 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 

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incur further expense of litigation while a fully briefed motion to 

dismiss the plaintiff's amended complaint WFLS pending. 

(2) Absolutely no consideration was given in this case to alternate 

sanctions, such as imposition of costs, attorney fees, or other 

damages which may have been sustained by the defendant as a result 

of delay. To arbitrarily conclude, as the majority does, that "no 

other reasonable sanctions exist," makes a mockery of the 

requirement that alternate sanctions be considered. (3) No warning 

was given to the plaintiff that his case was in danger of 

dismissal. Notice of a motion to dismiss for lack of prosecution 

is not a warning. The requirement that there be a warning presumes 

that the party being warned has an opportunity to cure the 

situation about which he is being warned. A motion 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 a warning. 

Second, the whole idea of the DeJana criteria is a typically 

presumptuous and uninformed judicial approach to how attorneys 

should handle their cases. The criteria reflect the inclination of 

appellate courts to ignore common sense solutions whenever a 

bureaucratic formula can be relied on instead. 

The solution to delay in the district court is for the court 

to set a case for trial. However, only the district court can do 

that. 

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The penalty for lack of preparation is usually failure. 

However, the attorney handling the case is in the best position to 

know what preparation is necessary for that case, and that 

preparation may not be reflected by formal discovery. 

The district court, and only the district court, has the power 

to move cases to a conclusion. It strikes me as odd when district 

courts refuse to do so and then punish one of the parties who has 

no control over the matter. It strikes me as even more strange 

when this Court applies some arbitrary, 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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