NO. 94-507

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

HOBBLE-DIAMOND CATTLE, CO.,

Plaintiff and Appellant,

-vs -

TRIANGLE IRRIGATION CO.,

Defendant and Respondent.

APPEAL FROM: District Court of the Sixth Judicial District,

In and for the County of Sweet Grass,

The Honorable Larry W. Moran, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Jock B. West; West, Patten, Bekkedahl & Green,

Billings, Montana

For Respondent:

Steven T. Potts; Jardine, Stephenson, Blewett &

Weaver, Great Falls, Montana

Submitted on Briefs: May 19, 1995

Decided: July 14, 1995

Filed: JfJL14 rsgj
Justice Karla M. Gray delivered the Opinion of the Court.

Hobble-Diamond Cattle Company appeals from the judgment of

dismissal entered by the Sixth Judicial District Court, Sweet Grass

County, which was premised on the court's grant of Triangle

Irrigation Company‘s motion to dismiss for failure to prosecute.

We reverse.

Hobble-Diamond Cattle Company (Hobble-Diamond) filed this

action against Triangle Irrigation Company (Triangle) in 1986,

alleging that certain pivots in the irrigation system it purchased

from Triangle in 1983 were defective or improperly installed.

Shortly before the scheduled trial in 1989, Hobble-Diamond sought

leave to amend its complaint to add a claim based on alleged

problems with another pivot; the District Court refused to

authorize the amendment.

A bench trial in July 1989 resulted in a judgment in

Triangle's favor. Hobble-Diamond appealed, raising only the issue

of the court's denial of its motion for leave to amend the

complaint. We reversed, holding that the court had abused its

discretion, and remanded for further proceedings. Hobble-Diamond

Cattle v. Triangle Irrigation (19911, 249 Mont. 322, 326, 815 P.Zd

1153, 1156. Remittitur issued on September 4, 1991.

Hobble-Diamond moved to substitute the sitting judge and,

thereafter, Triangle moved to substitute the judge called in to

assume jurisdiction. The Honorable Larry W. Moran assumed

jurisdiction on November 15, 1991. Counsel. for Hobble-Diamond was

allowed to withdraw on February 21, 1392, and new counsel for

2
Hobble-Diamond filed an appearance on March 20, 1992. In June

1992, Hobble-Diamond formally requested a scheduling conference.

By oral order and minute entry dated April 22, 1993, the

District Court ordered a telephonic status conference for early May

1993; Hobble-Diamond was to initiate the call. The parties also

were ordered to file a status report prior to that time; neither

party complied. The telephonic conference was rescheduled for May

25, 1993, by request of Hobble-Diamond's counsel and stipulation by

Triangle. The May 25 status conference did not take place and the

facts regarding why have not been clearly established. The docket

does not reflect any attempt to reschedule the conference and,

indeed, no further activity occurred regarding the case.

In May, 1994, approximately one year later, Triangle moved for

dismissal pursuant to Rule 41(b), M.R.Civ.P., for failure to

prosecute. The motion was briefed and orally argued. The District

Court orally granted the motion and, after a motion for

reconsideration by Hobble-Diamond, entered its memorandum and

judgment of dismissal. Hobble-Diamond appeals.

Did the District Court abuse its discretion in granting

Triangle's Rule 41(b), M.R.Civ.P., motion to dismiss for

failure to prosecute?

Rule 41(b), M.R.Civ.P., authorizes a district court to dismiss

an action for failure to prosecute upon motion of the defendant.

The court has broad discretion in ruling on such a motion, and "its

decision will be overturned only if it has abused that discretion."

Westland v. Weinmeister (1993), 259 Mont. 412, 415, 856 P.2d 1374,

1376 (citations omitted).

3
Decisions on motions to dismiss for failure to prosecute

entail a careful balancing of the competing public policy interests

i n resolving lawsuits on the merits and encouraging prompt

disposition of disputes. Westland, 856 P.2d at 1376 (citation

omitted). To that end, we have established four factors to be

considered in determining whether a district court abused its

discretion in dismissing an action under Rule 41(b), M.R.Civ.P.:

1) plaintiff's diligence in prosecuting the claim; 2) prejudice to

the defense caused by plaintiff's delay; 3) availability of

alternate sanctions; and 4) existence of a warning that the case is

in danger of dismissal. Westland, 856 P.2d at 1376 (citation

omitted). We examine the record before us regarding each Westland

factor separately in order to properly balance the competing public

policy interests at issue, as required by Westland.

With regard to the diligence factor, the District Court

observed that Hobble-Diamond purchased the irrigation system at

issue in this case in 1983, the action was filed in 1986 and

Hobble-Diamond had done nothing since remittitur from this Court in

September of 1991. We note that the first two time references are,

indeed, correct. They are not, however, relevant here in that time

periods prior to remittitur in the first appeal have no bearing on

Hobble-Diamond's diligence during the period since remittitur.

Moreover, the District Court's characterization of HobbleDiamond's total lack of activity for the nearly three years since

remittitur is neither correct nor fair to Hobble-Diamond. HobbleDiamond moved to substitute the sitting judge, substituted counsel

4
and, in June of 1992, requested a scheduling conference. The fact

that ten months passed between the request and the minute entry

setting up the status conference cannot be attributed to delay by

Hobble-Diamond. The same is true of the time between the

scheduling, and nonoccurrence, of the conference, Thus, based on

the record before us, it is clear that the time period appropriate

for consideration regarding Hobble-Diamond's lack of diligence in

this case is the year which passed between the aborted telephonic

conference and Triangle's motion to dismiss for failure to

prosecute. Such a period of time is not per se unreasonable,

although Hobble-Diamond's failure to reschedule the conference

after its failure to complete it as ordered cannot be condoned.

Regarding the prejudice factor, while the District Court

observed that Hobble-Diamond had not established the reasonable

excuse necessary pursuant to Westland to overcome the prejudice

presumed by an unreasonable delay (see Westland, 856 P.2d at 1377),

the court focused on the actual prejudice it determined Triangle

had suffered as a result of Hobble-Diamond's lack of diligence.

That actual prejudice was based on the lapse of eleven years since

the irrigation system was purchased by Hobble-Diamond, and the sale

of the system and resulting lack of availability for trial

purposes.

Again, as discussed above, the total lapse of time since the

1983 irrigation system transaction upon which this case is based is

not relevant in the context of a Rule 41(b), M.R.Civ.P., motion to

dismiss for failure to prosecute. The passage of time which is

5
relevant to whether Hobble-Diamond's lack of diligence caused

actual prejudice to Triangle is the one year period between the

aborted telephonic conference in May of 1993 and Triangle's motion

to dismiss one year later. While we do not disagree that this case

is now somewhat stale, Triangle did not establish actual prejudice

caused by the one-year period of delay with which we are concerned.

Nor is the fact that the irrigation system may not be available for

trial purposes particularly relevant since it appears that the

system was sold during the period prior to remittitur in the first

appeal. Thus, while the system's possible lack of availability may

be problematic to both parties, no prejudice to Triangle in that

regard can fairly be said to have resulted from the delay at issue

here.

The "availability of alternate sanctions" factor was not

directly addressed by the District Court in its memorandum

accompanying the judgment of dismissal. The court merely relied on

Westland, in which we held that the district court did not abuse

its discretion in deciding that it had "no other choice" than to

dismiss. gee Westland, 856 P.2d at 1370. We have determined

above, however, that the District Court relied on inappropriate

time periods and erroneously found actual prejudice in ruling on

Triangle's motion to dismiss. On that basis, we determine that the

one-year period at issue here, much shorter than the overall period

at issue in Westland, mandates close consideration of this factor.

The "availability of alternate sanctions" factor recognizes

that Rule 41(b), M.R.Civ.P., dismissals should be imposed sparingly

6
and must remain the exception rather than the rule. Here, it is

clear that other sanctions were available. The court could have

sanctioned counsel and/or Hobble-Diamond for failure to comply with

its order placing responsibility for initiating the scheduling

conference on Hobble-Diamond. It could have set the case for trial

immediately, a remedy we determined was adequate in Doug Johns Real

Estate, Inc. v. Banta (lYYO), 246 Mont. 295, 299, 805 P.2d 1301,

1304.

It also is clear, however, that nothing in the balancing of

factors mandated by Westland requires a total unavailability of

other sanctions prior to dismissal for failure to prosecute under

Rule 41(b), M.R.Civ.P. Indeed, such a requirement would render

involuntary dismissal pursuant to Rule 41(b) an impossibility

since, as a practical matter, alternative sanctions always would be

available to a court. Thus, a total absence of alternative

sanctions is not necessary.

?+n involuntary dismissal is a severe result. See Douq Johns,

805 P.2d at 1303. Under the circumstances presented by this case,

we determine that the "availability of alternate sanctions" factor

weighs in Hobble-Diamond's favor given the plethora of alternate

sanctions and remedies available and the period of delay at issue.

Finally, with regard to the "warning" factor, the District

Court gave no direct warning to Hobble-Diamond that its case was in

danger of dismissal. Neither Westland nor any rule specifically

requires a court to give such a warning, although it is the

practice of many trial courts to do so through an order to show
cause or other device. While such a warning is the better

practice, we are not inclined to impose such a burden regarding the

diligent prosecution of a case on the courts. For purposes of

considering the Westland factors, however, it is sufficient to

observe that the court did not formally warn Hobble-Diamond that

its case was in danger of dismissal.

We do not condone counsel's lack of attention over a one-year

period to this case in his charge. In considering the Westland

factors for purposes of balancing the competing public policy

interests in resolving lawsuits on the merits and encouraging

prompt disposition of disputes, however, we conclude that the

District Court abused its discretion in granting Triangle's Rule

41 lb), M.R.Civ.P., motion to dismiss,

K 42q The/$o&&ab$'& JeWrey,&. Langton,

Ju&je of tlfe District'Court, sitting

for Justice W. William Leaphart

8
Justice Fred J. Weber dissents as follows:

The opinion concludes that, in applying the four Westland

factors to this case, the District Court abused its discretion in

granting Triangle's Rule 41(b) motion to dismiss. I disagree with

that conclusion and, therefore, dissent from the opinion.

It is significant to note that District Judge Moran assumed

jurisdiction on November 15, 1991, and Hobble-Diamond had

essentially done nothing during the next three years except for the

appointment of new counsel.

In the District Court's Memorandum and Judgment of Dismissal

dated September 20, 1994, the District Court points out that the

case was filed in 1986, more than eight years ago, and arose from

defendant Triangle selling plaintiff Hobble-Diamond an irrigation

system in 1983. The court points out that shortly before trial,

Hobble-Diamond attempted to add another claim based upon alleged

problems with pivot number five. The Supreme Court reversed the

District Court's 1991 decision because of the failure to permit

that amendment. The District Court then stated:

It is now 1994, and Hobble-Diamond still has not

filed any pleadinq to state a claim based upon pivot no.

5 . No discovery has been conducted, and there has been

no activity by Plaintiff in this case since 1991, other

than its change of attorneys two years ago.

This case is more than 8 years old; the subject

matter is approximately 11 years old. At oral argument

it was acknowledged that plaintiff [Hobble-Diamond] has

sold the irrigation system and the ranch on which it was

located, several years ago. (Emphasis added.)
The court then discussed the rules to be applied and specifically

analyzed the case based upon the Westland four factors. The

District Court stated in regard to those factors:

Applying the factors set forth in Westland, the

Court determines that this action should be dismissed:

1 . Plaintiff has not diligently prosecuted its

alleged claim. Nearly 11 years have passed

since the irrigation system was installed, and

more than eight years have passed since this

action was commenced. Although the Supreme

Court ordered in 1991 that Plaintiff could

amend its Complaint to assert a claim based

upon pivot no. 5, nearly three more years have

now passed with no activity at all. Plaintiff

has not been reasonable or diligent in

prosecuting its alleged claim. See Westland,

856 P.2d at 1377.

2 . Plaintiff's delay in prosecution has

prejudiced the Defendant. Hobble-Diamond's

unreasonable delay, noted in paragraph 1,

"raises a presumption of prejudice to the

Defendant and shifts the burden to the

Plaintiff to show good cause or a reasonable

excuse for inaction." . . [Westland, 856

P.2d at 1377.1 Plaintiff's memorandum does

not dispute either the presumption or its

application here. Plaintiff submitted no

affidavit or any discovery or evidentiary

material to dispute the presumption that

Defendant has been prejudiced. Further, it is

readily apparent that Defendant has, in fact,

been prejudiced, not only by the long period

of time since the irrigation system was sold

and installed, but also by Plaintiff's sale of

the system several years ago. Such

circumstances make it virtually impossible for

Defendant to test and inspect the system so as

to separate alleged defects from 11 years of

use and normal wear and tear.

3 . Here, the dismissal sanction should be applied

as it was in Westland. There, five years had

elapsed between the filing of plaintiff's

Complaint and defendant's Motion to Dismiss,

and there had been no activity in the case for

more than a year. . . Based on those facts,

the court had "'no other choice' than to

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dismiss and enter final judgment against

westland." . . Here, the facts are even

more compelling: Hobble-Diamond filed the

action eight years ago and has taken no actin

for nearly three years. [Citations omitted.1

4. The factor of a warning to Plaintiff that

dismissal could occur is also controlled by

Westland. Here, this Court set a telephone

status conference last year, at which it

ordered that the parties confer with the Court

regarding case status, and the issuance of a

scheduling order. Although ordered to do so,

Plaintiff never initiated the conference call.

Plaintiff made no effort thereafter to reset

the aborted status conference, and made no

efforts whatsoever in this case, until

Defendant filed its Motion to Dismiss. .

(Emphasis added.)

Finally, the Court reminds the Plaintiff that it,

not the Court, has the ultimate responsibility to

prosecute its claims, conduct discovery, and prepare its

case for trial. . .

I conclude that the District Court's analysis of the Westland

factors does not demonstrate an abuse of discretion.

Our test is limited to a finding of an abuse of discretion.

When I consider all of the facts as set forth in the District

Court's memorandum and judgment and the facts emphasized in the

opinion, I conclude there is no basis upon which to hold there has

been an abuse of discretion.

I dissent.

11
July 14, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Jock B. West

WEST, PATTEN, BEKKEDAHL & GREEN

Old Chamber Building, Suite. 100

301 North 27th Street

Billings MT 59101

Steven T. Potts

JARDINE, STEPHENSON, BLEWETT & WEAVER

Box 2269

Great Falls MT 59403-2269

ED SMITH

CLFZRK OF THE SUPREME COURT

STATE OF MONTANA