No. 87-407
INTHE SUPREME COURT OF THE STATEOF MONTANA
1988

TIMBER TRACTS, INC., aMontana corp., PlaintiffandAppellant,-vsFERGUSELECTRIC COOPERATIVE, INC., aMontana corp., Defendant and Respondent.

APPEAL FROM: TheDistrictCourt of the Tenth JudicialDistrict, Inand for the County of Fergus, TheHonorable Peter Rapkoch,Judgepresiding 

# . COUNSELOF RECORD:
ForAppellant: FloydA. Brower,Roundup,Montana Ralph Herriott,Billings,Montana
ForRespondent: Herndon,Harper & Munro; Donald R. Herndon, Billings, Montana WilliamA. Spoja,Jr., Lewistown,Montana

Submitted on Briefs: Feb. 4, 1988 Decided: March 3, 1988
Filed: 

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.._. ..-Mr. Justice JohnConway 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 DistrictCourt of the Tenth JudicialDistrict,Fergus County,
onJune 16, 1981. On July 1,1987,that DistrictCourt,held
ahearing ondefendant'smotion 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. Theplaintiff conductedaminimal amountofpreparation 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 (fiveand one-halfmonths after it filed its complaint); itnoticed the taking of the deposition of Clovis 

### W. Rader on November 17, 1981 (fivemonths 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-corporationon 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 (sevenmonths 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 thedefendant'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 thirdwas issued on February 8, 1982,but plaintiff did not serve its answers until January 11, 1984, some 23months later and some two years and seven months after the complainthad been filed. The plaintiff-corporation took no action to pursue its claim after thisdate. The defendantmoved to dismiss for lack ofprosecution
on December 31, 1985. A hearing on themotionwas 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 theU.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. TheRule states inpart: For failure 

### -- of theplaintiff 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 determinewhat length of a period of inactivity represents a failure to prosecute. The question ofwhether there hasbeen 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-istrictcourt'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 litigablematters 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 interrogatoriesof 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." Themere scheduling of depositions isnot 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 atbar, theplaintiffhad 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 oppositionto the firstmotion, 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 onemotion to dismisshad been filed andmight be renewed. See,Chicago Title InsuranceCo. v. Wheat (Mont. 1985), 699 P.2d 597, 42 St.Rep. 671. The burden is upon the plaintiff todemonstratea reasonable excuse forhis neglect. If the plaintiff fails to carry that burden, the delay is considered unreasonableand the defendant ispresumed to have beenprejudiced. Wheat, 699P.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 attorneyshired by the plaintiff
were derelict, the client is not totally absolved of itsresponsibility 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 iswhen a party represents himself or herself that party, that self-representing party is bound by the law of both the procedure and the substantivelaws. 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,Clintonv. Miller (1951),124Mont. 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 aprotective order is similarlywithoutmerit. 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 casebecause he thought the Chapter 

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### 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