NO. 88-327

IN THE SUPREME COURT OF THE STATE OF MONTANA
1989

JAMES THOMAS and LINDATHOMAS, Plaintiffsand Appellants,-vsKENNETH R. WILSON, Defendantand Respondent.

APPEAL FROM: TheDistrict Court of the Sixteenth JudicialDistrict, In and for the County of Custer, TheHonorable M. James Sorte, Judgepresiding.
COUNSELOF RECORD:
ForAppellant:
PattenLaw Firm; JamesA. Patten,Billings,Montana
For Respondent: Crowley, Haughey, Hanson,Toole & Dietrich; Sherry S. Matteucci, Billings,Montana

b Submitted on Briefs: Dec. 22, 1988 bc 

### c' 3 o Decided: January 30, 1989 tl) >L 0 UJ ~ileds 

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# .Mr. Justice John ConwayHarrison 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 dismissedwith 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 failuresconstituted.malpractice which forced them into an unfavorable settlementof the suit. On September 9,1985,appellants also filed twomotions 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 ofmotionsto 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 motionsweremade. 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 prosecutepursuant 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 toprosecute, it iswell established that the court's decisionwill notbe 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 

### ofthis 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 aplaintiff Fs not required touse discovery,he or she must respond to those requests filed by the defendant. If appellants' were ready toproceed against the respondent, they should have attempted tobring this case to trial long before theirmotion for trial setting was filed

onMay 2, 1988. As stated in Cook, supra: [W]e note that no discovery had been conducted

# ... If the discoveryhad been completed, plaintiffs had a duty to pursue theprosecution and bring the case to trial. Ifdiscoverywas not complete, itwas their duty to see stepswere 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, 

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## , 45 St.Rep. at 2288. Finally,appellantsargue their delay should be excused because they were without counsel since October 21, 1987, when their counselwithdrew 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 appellantswere 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: