NO. 88-270 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

MARGIE P. COOK, FLOYD A. RROWER, 

NORMA YOUNT and NORMA YOUNT as 

Personal Representative of the 

Estate of Wilbur J. Yount, 

Plaintiffs and Appellants, 

-vsFERGUS ELECTRIC COOPERATIVE, INC. , a Montana corporation, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Chan Ettien, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Floyd A. Rrower, Roundup, Montana 

For Respondent: 

rn \- 

C1) cr 

---4 '$erndon, Hartman, Sweeney & Halverson; Donald R. 

1-1 :Herndon, Rillings, Montana 

Submitted on Briefs: Nov. 3, 1988 

Decided: December 15, 1988 

Filed: 

-- Clerk 
Mr. Justice I,. C. Gulbrandson delivered the Opinion of the 

Court. 

This is an appeal from the Tenth Judicial District, 

Fergus County, Montana, of that court's order dismissinq 

plaintiff 's suit for failure to prosecute, pursuant to Rule 

41(b), M.R.Civ.P. We affirm. 

This case and a companion case, Timber Tracts, Inc. v. 

Fergus Electric Cooperative, Inc. (Mont. L988), 753 P.2d 854, 

45 St.Rep. 415, (Timber Tracts) arose from plaintiffs' claim 

that the defendant had agreed to extend electrical service to 

pl-aintiffs' properties at no cost. Subsequent to the alleged 

agreement, the bylaws of the electrical co-op were changed to 

provide that fees would be charged for extending said 

electrical service. As a result of the change, plaintiffs in 

the instant action and in Timber Tracts filed suit seeking 

enforcement of the alleged agreement. The Timber Tracts case 

was filed in Fergus County on June 16, 1981, the instant case 

was filed in Musselshell County on October 31, 1983. 

Defendant Fergus Electric Cooperative, Inc. (Fergus) 

moved for dismissal of both actions on June 3, 1987 for 

failure to prosecute, pursuant to Rule 41 (b) , M. R. Civ.I?. 

Subsequent to a hearing on July 1, 1987, the Timber Tracts 

case was dismissed by the District Court in an order issued 

August 27, 1987. This Court affirmed that dismissal in an 

opinion issued March 3, 1988. The hearing on the motion to 

dismiss in the instant case was held on August 11, 1987, and 

a memorandum opinion was issued on April 26, 1988, dismissing 

the action pursuant to Rule 41(b), M.R.civ.P. 

Plaintiffs filed their notice of appeal on May 23, 

1988. Pursuant to a stipulation between the parties at the 

hearing on August 11, 1987, the District Court file for the 

Timber Tracts case was incorporated into the District Court 
file for the instant case. Because of that stipulation to 

include the Timber Tracts file, we find it necessary to 

examine the course of litigation from the filing of the 

Timber Tracts complaint in 1981. 

The factual basis upon which this Court affirmed the 

dismissal of the Timber Tracts case is summarized on page 855 

of that opinion: 

The plaintiff conducted a minimal amount 

of preparation for litigation in the six 

years and two months that this cause was 

alive. It issued one set of 

interrogatories to defendant in December 

1981 (five and one-half months after it 

filed its complaint); it noticed the 

taking of the deposition of Clovis W. 

Rader on November 17, 1981 (five months 

after filing the complaint) , and took 

that deposition on December 4, 1981 (five 

and one-half months after the filing of 

the complaint); it noticed the taking of 

depositions of seven current and former 

directors of the defendant-corporation on 

January 8, 1982 (nearly seven months 

after filing its complaint) , but never 

took their depositions; it argued against 

defendant's motion for a protective order 

on January 14, 1982 (seven months after 

filing its complaint) but never filed the 

post-hearing brief after having demanded 

the opportunity to file briefs. 

Consequently no decision ever issued on 

the defendant's protective order. 

Timber Tracts, 753 P.2d at 855. This Court noted that the 

defendant submitted three sets of interrogatories, two in 

1981, which the plaintiff answered in 1981, and a third set 

issued on February 8, 1982, which the plaintiff failed to 

answer until January 11, 1984. After that point in time, 

plaintiff took no further action in pursuit of its claim 

until defendant filed a motion to dismiss. The defendant 

moved for a disrnl.ssa1 of the Timber Tracts case for lack of 
prosecution on December 31, 1985, but no hearing was held on 

that motion due to the illness of Floyd Brower, plaintiff 

corporation's president and attorney. Defendant renewed its 

motion for dismissal on June 3, 1987. 

In the instant case, plaintiffs filed their complaint 

on October 31, 1983, and then moved for substitution of judge 

on February 7, 1984, from Judge Rapkoch to Judge Ettien. No 

further action was taken until plaintiffs filed a motion for 

extension of time to file an answer brief on June 23, 198-', 

after the motion for dismissal had been filed. It should 

also be noted that during the prosecution of the two cases, 

Timber Tracts, Inc. was in Chapter 1-1 Bankruptcy proceedings 

from October, 1985 to February 27, 1987, and that Floyd 

Brower was in Chapter 11 Bankruptcy proceedings from 

February, 1986 to October 28, 1986. 

The sole issue presented for review is: Did the 

District Court abuse its discretion in granting defendant's 

motion to dismiss plaintiffs' action for failure to prosecute 

and in dismissing the case with prejudice? 

Rule 41 (b) , M. R.Civ. P., has been interpreted as 

providing that a defendant may request involuntary dismissal 

of a civil action where a plaintiff fails to exercise due 

diligence, absent a sufficient showing of excuse, in bringing 

his or her case to trial. Shackleton v. Neil (1983), 207 

Mont. 96, 101, 672 P.2d 1112, 1115. No precise rule or 

formula sets forth what period of inactivity is necessary to 

find a failure to prosecute. The question has been left to 

the discretion of the district court, and the court's 

decision will not be disturbed absent a clear abuse of 

discretion. See, Timber Tracts, 753 P.2d at 856, and cases 

cited therein. 

The district court's decision, however, is not without 

1-imit. The court must "halance judicial efficiency against 
the plaintiff's right to meaningful access to the judicial. 

system." Timber Tracts, 753 P.2d at 856. The court must 

also balance plaintiff's reasonable excuse, where it finds 

unreasonable delay, against the prejudice caused to the 

defendant by the delay. However, if the court finds 

unreasonable delay exists, the law presumes an impairment of 

the defendant's defenses. Shackleton, 672 P.2d at 1115, 

citing Peters v. Newkirk (Mont. 1981), 633 P.2d 1210, 1212, 

38 St.Rep. 1526, 1528. 

Plaintiffs contend their pursuit of this case was 

prejudiced when they were unable to actively pursue the 

Timber Tracts case, the companion case, because of the lack 

of a ruling on the motion for protective order. As in 

Timber Tracts, we find this contention is without merit. The 

court did not rule on the motion because plaintiff asked for 

an opportunity to submit a post hearing brief which he then 

failed to submit. Plaintiffs contend that most of the 

discovery necessary to bring this case to a conclusion was 

developed through the Timber Tracts case and that including 

that discovery in this case absolved plaintiffs of the lack 

of discovery conducted in this case. Regarding this 

contention, we note that no discovery had been conducted in 

the companion case after January, 1984. If the discovery had 

been completed, plaintiffs had a duty to pursue the 

prosecution and bring the case to trial. If discovery was 

not complete, it was their duty to see steps were taken to 

ensure it was conducted. Rule 41(b), M.R.Civ.P. The 

plaintiffs pursued neither course of action, showing the 

court no indication of their desire to bring the case to 

trial. Plaintiffs also contend that they were forced to 

employ various attorneys of record on the case at various 

times for various reasons causing them hardship and delay. As 

to plaintiffs' problems with their various attorneys being an 
excuse for failing to diligently prosecute the case, we cite 

to Diversified Realty, Inc. v. Holenstein (Mont. 1986), 721 

P.2d 752, 43 St.Rep. 1249, where this Court stated: 

Although Diversified, as it suggests, may 

have been the victim of inadvertence and 

mistake on the part of its numerous 

attorneys, it was still at least 

partially responsible for the progress of 

its case over an eight year period. 

Diversified cannot obtain relief, however 

unintentional, from its own lack of 

concern over such an extended period. of 

time . 

Diversified Realty, 721 P.2d at 755. We find even less 

justification for the lack of progress in this case because 

one of the plaintiffs is an attorney and his law firm is 

listed as counsel of record. 

Plaintiffs, further claim that the automatic stay 

orders issued under Chapter 11 Bankruptcy proceedings for 

plaintiff Brower precluded their ability to proceed in this 

case. We note plaintiffs admit they were mistaken in this 

belief as the Bankruptcy proceedings on behalf of plaintiff 

Brower did not preclude pursuit of this action. Further, 

even after the Chapter 11 plan was filed and any automatic 

stay order effectively lifted, plaintiffs took no action for 

seven months before defendant filed its motion to dismiss. 

Lastly, plaintiffs contend that the District Court's 

failure to issue an order in response to defendant's motion 

to compel discovery, which was filed on December 31, 1985, 

caused the delay. Examining the record regarding this 

contention we find the motion to compel was submitted to 

obtain written answers to interrogatories and requests for 

production; the answers were over 28 months late at that 

date. Plaintiffs failed to object to the motion or submit an 

answer brief. Rule 11, of the Montana Uniform District Court 
Rules, (1985), then in effect, provided that an adverse 

party's failure to file an answer brief constitutes an 

admission that the motion is well-taken. We hold that when 

the plaintiffs conceded the motion was well-taken, yet failed 

to provide the requested discovery, they cannot then claim 

that they were hampered by the court's failure to rule on the 

motion. Even if they were in fact hampered, they failed to 

take any of the steps available which would have brought the 

matter to the court's attention. We also note that had the 

court ruled on the motion to compel, it would have been 

within its discretion to dismiss the case at that time, for 

plaintiffs' failure to serve timely answers to the 

interrogatories and requests for production pursuant to Rule 

37 (d) , M.R.Civ.P. See, Dassori v. Roy Stanley Chevrolet Cn. 

(Mont. 1986), 728 P.2d 430, 43 St.Rep. 2113. 

Having examined all the excuses put forward by 

plaintiffs and finding no clear error on the part of the 

District Court, we affirm its decision. 

Justices