Ellis v. Twin Falls Canal Co. , 109 Idaho 910 ( 1985 )

SHEPARD, Justice.

Some seven and one-half years ago, in May 1978, defendant-respondent’s canal bank allegedly collapsed, damaging plaintiff-appellant’s fish farm and stock. The complaint was filed in October of 1978. In October 1984 the action was dismissed. During that time interval the following proceedings took place. The complaint was served in May 1979, and defendant answered seven days later. In March 1980, defendant filed interrogatories addressed to Ellis. In July 1981, Ellis received a clerk’s notice of dismissal of the action and an affidavit was filed as to why the case should be retained. The trial was scheduled for November 1981, but vacated upon stipulation. Trial was reset in March 1982, but vacated upon stipulation since Ellis had filed a petition under Chapter 11 of the Bankruptcy Act. In July, following notice thereof, the action was dismissed and Ellis’ motion to set aside that order of dismissal was granted in September 1983. On June 1, 1984, following a telephone status conference, the district judge set a date in November for a pretrial conference and a date, approximately two weeks later for trial setting. It was ordered therein that all discovery be completed by the date of the pretrial conference, that proposed exhibits and witness lists be exchanged at least a week in advance of the pretrial conference, and that a pretrial memorandum as specified in Rule 16(a) be submitted at least one day in advance of the pretrial conference. Ellis had never filed answers to the interrogatories of March 1980, and Twin Falls Canal moved to compel answers to those interrogatories, and on October 28, 1984, moved to dismiss the action for failure to prosecute, or in the alternative to vacate the trial date. On October 30, 1984, the court heard Twin Falls Canal’s motion to compel answers to interrogatories. On that date answers to interrogatories were delivered by Ellis. Twin Falls Canal’s motion to dismiss was argued that same date, and at the conclusion thereof the action was dismissed.

Ellis first argues that the motion to dismiss was erroneously granted since that motion was not served upon Ellis at least five days in advance of the hearing in compliance with I.R.C.P. 6(d). We do not agree.

The record reflects that counsel for Ellis was present at the hearing and participated in the argument upon the motion to dismiss. Although he noted therein that he had not received the five-day notice of the hearing, he made no assertion of being prejudiced thereby and did not move for a continuance of the hearing date. “The voluntary appearance by an attorney and his participation in the argument of a motion is a waiver of notice of the motion.” B.J. Carney & Co. v. Murphy, 68 Idaho 376, 381, 195 P.2d 339, 341 (1948). See also Curtis v. Walling, 2 Idaho 416, 18 Pac. 54 (1888).

The Court in Warden v. Lathan, 96 Idaho 34, 35, 524 P.2d 162, 163 (1974), stated:

“It is well settled in this jurisdiction that the trial court has the authority to dismiss a case because of a failure to prosecute, and that the trial court’s exercise of such authority will not be disturbed on appeal unless it is shown that there was a manifest abuse of discretion. (Citations omitted).

“We are mindful that all of the delay in this case might not be attributable solely to appellants. However, ‘... a plaintiff who hails a defendant into court assumes, and so long as he has the affirmative of the main issue, retains the duty of diligent prosecution.’ ”

See also Kirkham v. 4.60 Acres, 100 Idaho 781, 605 P.2d 959 (1980); I.R.C.P. 41(b).

Ellis argues that the automatic stay provisions of 11 U.S.C. § 362 provide an excuse for the failure of Ellis to advance the case. We disagree. In the instant case the action was not against Ellis as a debtor, and hence the automatic stay provisions do not apply. Meyer v. Fleming, 327 U.S. 161, 66 S.Ct. 382, 90 L.Ed. 595 (1946); 11 U.S.C. § 323(b).

Ellis asserts that involuntary dismissal under I.R.C.P. 41(b) is an extreme sanction, that other sanctions were available which were less punitive, and hence it was an abuse of discretion by the trial court. We disagree. The Court, in Jensen v. Doherty, 101 Idaho 910, 911, 623 P.2d 1287, 1288 (1981), stated:

“Involuntary dismissal under I.R.C.P. 41(b) for failure to prosecute is in the nature of a sanction. It is a necessary final recourse available to the Court to protect its processes and other litigants from abuse. It is a remedy to be sparingly used, but it is always available. (Citations omitted).

“We have held that the granting of an involuntary dismissal on this ground is an act within the sound discretion of the trial court, and that imposition of the sanction will stand absent abuse of that discretion.”

We are not pointed by Ellis to any clear abuse of discretion of the trial court in the instant case. At the time of the dismissal the action had been pending for six years, and up to the date of the dismissal Ellis had failed to diligently prosecute the case, to initiate any discovery, or to comply with the discovery efforts of Twin Falls Canal. We note that present counsel for Ellis did not appear in the case until mid-1984. The time lapses and Ellis’ failure to prosecute in the instant case are beyond those in cases in which this Court has affirmed dismissals by the trial court. See Jensen v. Doherty, supra; Kirkham v. 4.60 Acres, supra; Beckman v. Beckman, 88 Idaho 522, 401 P.2d 810 (1965); Hansen v. Firebaugh, 87 Idaho 202, 392 P.2d 202 (1964).

I.R.C.P. 41(b) is identical to F.R.C.P. 41(b) and cases decided under the federal rule indicate that unreasonable delay creates a presumption of prejudice to the defendant’s case. Moore v. Telfon Communications Corp., 589 F.2d 959 (9th Cir.1978); Alexander v. Pacific Maritime Association, 434 F.2d 281 (9th Cir.1970), cert. denied, 401 U.S. 1009, 91 S.Ct. 1254, 28 L.Ed.2d 545; States Steamship Company v. Phillippine Air Lines, 426 F.2d 803 (9th Cir.1970).

We find no abuse of discretion in the trial court’s order dismissing the action with prejudice.

Affirmed. Costs to respondent.

DONALDSON, C.J., and BAKES and HUNTLEY, JJ., concur.