NO. 88-327 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

JAMES THOMAS and LINDA THOMAS, 

Plaintiffs and Appellants, 

-vsKENNETH R. WILSON, 

Defendant and Respondent. 

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

In and for the County of Custer, 

The Honorable M. James Sorte, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Patten Law Firm; James A. Patten, Billings, Montana 

For Respondent: 

Crowley, Haughey, Hanson, Toole & Dietrich; Sherry 

S. Matteucci, Billings, Montana 

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Submitted on Briefs: Dec. 22, 1988 

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o Decided: January 30, 1989 

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Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

James and Linda Thomas appeal from a judgment of the 

Sixteenth Judicial District, Custer County, Montana. 

Appellantsv legal malpractice action against respondent 

Kenneth R. Wilson was dismissed with prejudice for failure to 

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

Appellants filed a complaint and jury demand on 

September 9, 1985, against attorney FJilson. The complaint 

alleges Wilson committed legal malpractice in his 

representation of the appellants in a civil suit filed 

against them in Richland County, Montana. Appellants alleged 

Wilson failed to respond properly to discovery; failed to 

resist a motion for partial summary judgment, which 

eliminated the appellants' counterclaim; and. failed to keep 

the appellants informed of the progress of the matter and 

misled them as to the status of the case. Appellants alleged 

these failures constituted. malpractice which forced them into 

an unfavorable settlement of the suit. 

On September 9, 1985, appellants also filed two motions 

for substitution of judge. Upon these motions, Judge Sorte 

accepted jurisdiction of the action on September 12, 1985. 

On October 25, 1985, respondent filed an answer and 

counterclaim in which he denied the allegations of 

malpractice and sought attorney's fees and expenses for his 

representation of the action. On November 5, 1986, 

respondent filed requests for admission and production, and 

interrogatories. On December 3, 1986, appellants responded 

to the request for admission only. On March 9, 1987, 

respondent filed a second request for production and a second 

set of interrogatories. No further responses were made. On 

July 6, 1987, respondent filed a brief in support of motions 
to compel answers to the interrogatories and to dismiss for 

failure to prosecute pursuant to Rules 41 (b) and 37 (dl, 

M.R.Civ.P., although the District Court file does not reveal 

whether these motions were made. 

On July 8, 1987, Judge Sorte ordered appellants to file 

exceptions or objections to respondent's first 

interrogatories no later than July 21, 1987. On July 27, 

1987, appellants filed answers to respondent's first 

interrogatories. Because appellants' attorney would be 

called to testify at trial, he moved to withdraw from the 

case, and the motion was granted, on October 21, 1987. 

On April 6, 1988, respondent renewed his motion to 

dismiss for failure to prosecute. After the motion to 

dismiss was set for hearing, appellants filed a motion for 

trial setting on May 2, 1988. While there is no transcript 

of the hearing on the motion to dismiss, Judge Sorte 

considered the evidence and heard the parties by way of a 

telephone conference call. On May 18, 1988, Judge Sorte 

entered a judgment of dismissal for appellants' failure to 

prosecute pursuant to Rule 41(b), M.R.Civ.P. 

The parties agree that it is within the sound 

discretion of the District Court whether to dismiss a case 

for failure to prosecute. While no precise rule or formula 

sets forth what period of inactivity is necessary to find a 

failure to prosecute, it is well established that the court's 

decision will not be disturbed on appeal absent a clear abuse 

of discretion. Cook v. Fergus Electric Cooperative, Inc. 

(Mont. 1988), P.2d , 45 St.Rep. 2285; Timber Tracts, 

Inc. v. Fergus Electric Cooperative, Inc. (Plant. 1988), '53 

P.2d 854, 45 St.Rep. 415. 

Conspicuously missing from this case is any reasonable 

excuse for the appellants' lack of prosecution. Although 

appellants arque they have diligently pursued prosecution of 
this action, the facts reveal that very little activity 

followed the filing of the complaint. Appellants conducted 

no discovery and delayed response to nearly all of the 

discovery requests. While a plaintiff Fs not required to use 

discovery, he or she must respond to those requests filed by 

the defendant. If appellants' were ready to proceed against 

the respondent, they should have attempted to bring this case 

to trial long before their motion for trial setting was filed 

on May 2, 1988. As stated in Cook, supra: 

[W]e note that no discovery had been 

conducted . . . 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. 

-- Cook, P. 2d at , 45 St.Rep. at 2288. 

Finally, appellants argue their delay should be excused 

because they were without counsel since October 21, 1987, 

when their counsel withdrew from the case. Although there is 

some evidence the appellants were still being advised by 

their first attorney when the motion to dismiss was filed, 

the appellants were notified, as unrepresented parties, that 

they should either obtain new counsel or proceed pro se and 

make a personal appearance. The appellants chose to proceed 

pro se and may not now complain they were without counsel. 

Since no abuse of discretion has been shown, the 

judgment of the District Court is affirmed. 
We concur: