No. 87-407 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

TIMBER TRACTS, INC., 

a Montana corp., 

Plaintiff and Appellant, 

-vsFERGUS ELECTRIC COOPERATIVE, INC., 

a Montana corp., 

Defendant and Respondent. 

APPEAL FROM: The District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter Rapkoch, Judge presiding . 

COUNSEL OF RECORD: 

For Appellant: 

Floyd A. Brower, Roundup, Montana 

Ralph Herriott, Billings, Montana 

For Respondent: 

Herndon, Harper & Munro; Donald R. Herndon, Billings, 

Montana 

William A. Spoja, Jr., Lewistown, Montana 

Submitted on Briefs: Feb. 4, 1988 

Decided: March 3, 1988 

Filed: MAR 3 - 1988 .._. ..- 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Timber Tracts, Inc., hereafter referred to as 

plaintiff, filed a contract action against Fergus Electric 

Cooperative, hereafter referred to as defendant, in the 

District Court of the Tenth Judicial District, Fergus County, 

on June 16, 1981. On July 1, 1987, that District Court, held 

a hearing on defendant's motion to dismiss the cause for lack 

of prosecution under Rule 41 (b) , M. R.Civ.P. An order 

dismissing the cause with prejudice issued on August 27, 

1987. 

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. 

The defendant, meanwhile, submitted three sets of 

interrogatories. The first was issued on September 1, 1981 

and answered on October 7, 1981. The second was issued on 

October 7, 1981 and answered on November 5, 1981. The third 
was issued on February 8, 1982, but plaintiff did not serve 

its answers until January 11, 1984, some 23 months later and 

some two years and seven months after the complaint had been 

filed. The plaintiff-corporation took no action to pursue 

its claim after this date. 

The defendant moved to dismiss for lack of prosecution 

on December 31, 1985. A hearing on the motion was continued 

when Floyd Brower, the plaintiff-corporation's president as 

well as attorney, could not attend because of illness. The 

motion was renewed on June 3, 1987, 72 months after the 

complaint, and was heard on July 1, 1987. Brower testified 

that the plaintiff-corporation had paid four attorneys more 

than $24,000 to prepare the case for trial. He noted also 

that while the plaintiff-corporation had resorted to 

reorganization under Chapter 11 of the U.S. Brankruptcy Code, 

that he had moved to have the automatic stay lifted so that 

the lawsuit could proceed. The District Court, unconvinced 

that these factors represented excusable neglect, granted the 

defendant's motion. 

We confront the sole issue of whether the District 

Court abused its discretion by dismissing the cause with 

prejudice. We affirm. 

Failure to prosecute a civil action arises whenever a 

plaintiff has not exercised due diligence in bringing his 

cause to trial. Shackleton v. Neil (Mont. 1983), 672 P.2d 

1112, 1114, 40 St.Rep. 1920, 1923. Rule 41(b) allows the 

defendant to request an involuntary dismissal in such cases. 

The Rule states in part: 

For failure -- of the plaintiff to prosecute 

or to comply with these ruies or any 

order of court, a defendant may move for 

dismissal of an action or of any claim 

against him . . . (Emphasis added.) 
There is no precise rule or formula to determine what 

length of a period of inactivity represents a failure to 

prosecute. The question of whether there has been a failure 

to prosecute is one left to the discretion of the district 

court. Shackleton, 672 P.2d at 1115; Brymerski v. City of 

Great Falls (1981), 195 Mont. 428, 431, 636 P.2d 846, 848. 

The d-istrict court's decision will not be disturbed unless 

that court clearly abused its discretion. Shackleton, 672 

P.2d at 1115, quoting Nealey v. Transportacion Maritima 

Mexicans, S.A. (9th Cir. 1980), 662 F.2d 1275, at 1278. 

Keeping in mind that courts "exist primarily to afford a 

forum to settle litigable matters between disputing parties," 

the district court must balance judicial efficiency against 

the plaintiff's right to meaningful access to the judicial 

system. Martin v. Board of Labor Appeals (Mont. 1987), 737 

P.2d 488, 490, 44 St.Rep. 951, 954, citing Brymerski, 636 

P.2d at 848. 

The District Court must carefully consider the recent 

actions of the plaintiff. When the plaintiff has resumed 

work on the case and is diligently prosecuting it at the time 

the motion is filed the motion should not be granted since 

the policy favoring resolution of a case on its merits is 

more compelling than the rationale of Rule 41(b), which is to 

prevent unreasonable delay. Brymerski, 636 P.2d at 848-49. 

In the three and one-half months before the defendant filed 

its motion to dismiss in Brymerski, the plaintiff had 

substituted counsel, filed answers to four-year-old 

interrogatories, and submitted interrogatories of its own to 

the defendants. This Court held that defendant's motion to 

dismiss was not timely. Brymerski, 636 P.2d at 849. The 

plaintiff's resumption of the case must be "active" and 

"diligent." The mere scheduling of depositions is not enough 

to stave off a dismissal for lack of prosecution. 
Diversified Realty, Inc. v. Holenstein (Mont. 1986), 721 P.2d 

752, 754, 43 St.Rep. 1249, 1252. 

In the case at bar, the plaintiff had seventeen months' 

notice from the time defendant first moved to dismiss the 

cause until the time that motion was renewed. The record 

shows that in that period, the plaintiff did nothing more 

than to express its opposition to the first motion, supported 

by brief, and move to continue the first scheduled hearing 

because of Brower's illness. The absence of any further 

discovery does - not show active and diligent pursuit of the 

cause. This conclusion is accentuated by plaintiff's 

knowledge that one motion to dismiss had been filed and might 

be renewed. See, Chicago Title Insurance Co. v. Wheat (Mont. 

1985), 699 P.2d 597, 42 St.Rep. 671. The burden is upon the 

plaintiff to demonstrate a reasonable excuse for his neglect. 

If the plaintiff fails to carry that burden, the delay is 

considered unreasonable and the defendant is presumed to have 

been prejudiced. Wheat, 699 P.2d at 599. 

The plaintiff-corporation's president, Floyd Brower, 

himself a practicing attorney, attempts to lay much of the 

blame at the feet of other attorneys the plaintiff had 

retained to handle the matter. Brower, though, had been 

counsel of record since October 14, 1981 and had hired 

associates for his law firm on two occasions during the 

course of this action with the understanding that they would 

prepare the cause for trial. The record shows that no 

discovery was ever conducted by either associate. The 

plaintiff also retained a Helena lawyer to handle the cause 

as senior counsel when it went to trial. This attorney 

ultimately was forced to withdraw because of a conflict of 

interest. 

Even assuming that the attorneys hired by the plaintiff 

were derelict, the client is not totally absolved of its 
responsibility to move the cause to trial. 

Diversified Realty, 721 P.2d at 755. At the conclusion of 

the hearing on the motion to dismiss, the District Judge 

stated: 

Mr. Brower, you are the president of 

Timber Tracts, the Plaintiff in this 

matter. But you're also an attorney and 

as such have a fiduciary duty as the 

president of the corporation to pay 

attention to and be ruled by and to take 

care of the interests and business 

matters, legal matters of the Plaintiff 

corporation. The record is just replete 

with that not having been done. And 

evidently, the attorneys who were hired 

by the Plaintiff to handle this case as 

you've testified, didn't do the job. The 

client, especially an informed client, is 

bound by the actions or inactions of its 

counsel. And because the rule is when a 

party represents himself or herself that 

party, that self-representing party is 

bound by the law of both the procedure 

and the substantive laws. 

Because the court's statement represents an accurate 

summary of Mr. Brower's testimony and reflects the rule that 

an attorney must use a reasonable degree of care or skill to 

protect his client, see, Clinton v. Miller (1951), 124 Mont. 

463, 483-84, 226 P.2d 487, 498, the District Court did not 

err when it found no reasonable excuse. The plaintiff's 

assertion that it could not progress with its cause because 

the District Court had never ruled on the defendant's motion 

for a protective order is similarly without merit. The court 

never ruled on that protective order because the plaintiff 

failed to submit a brief after requesting that briefs be 

submitted. Such inaction, besides showing disdain for the 

court, shows a failure to act diligently in this claim. 

Similarly, there is no merit in Brower's assertion that he 

delayed action in this case because he thought the Chapter 11 
automatic stay precluded further action. It was his 

responsibility in furtherance of this action to notify the 

District Court and the defendant of the proposed 

reorganization and then to learn from bankruptcy specialists 

how the automatic stay affected this action. The plaintiff 

failed to do this. 

Because plaintiff could not demonstrate reasonable 

excuse and the cause had lingered for more than five years 

with no activity except to answer the defendant's 

interrogatories and motions, the court did not err when it 

ruled the plaintiff had not been diligent and consequently 

dismissed the cause. 

Affirmed. 

Justices