Cruikshank v. Cruikshank ( 1995 )

NO. 95-125
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
CHARLES M. CRUIKSHANK III,
Plaintiff and Appellant,
v
SARAH B. CRUIKSHANK,
a/k/a SARAH K. BOWER,
Defendant and Respondent
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Douglas C. Allen, Corder and Allen, Great Falls,
Montana
For Respondent:
C. W. Leaphart, Leaphart Law Firm, Helena, Montana
Submitted on Briefs: October 19, 1995
Decided: December 21, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter Publishing Company and West Publishing
Company.
Charles M. Cruikshank III (Cruikshank) appeals the decision of
the Eighth Judicial District Court, Cascade County, dismissing his
complaint against Sarah K. Bower (Bower) for lack of prosecution.
We affirm.
The issue on appeal is whether the District Court erred in
dismissing Cruikshank's complaint for lack of prosecution.
Cruikshank filed a complaint on December 18, 1987, and an
amended complaint on January 8, 1990, in the Eighth Judicial
District Court, Cascade County, seeking to domesticate two foreign
judgments from the State of Washington against Bower. Bower filed
motions to dismiss the respective complaints. On June 22, 1990,
Cruikshank moved to voluntarily dismiss his complaint so that he
could proceed with his cause of action in federal court. The state
court claim was not dismissed and Bower filed a counterclaim
against Cruikshank. Cruikshank failed to respond to Bower's
counterclaim and default was entered against him on April 10, 1991.
On October 30, 1991, Cruikshank moved the District Court to set
aside the default on the counterclaim. No further action was taken
on this case, and on November 10,~ 1994, Bower moved the court to
dismiss Cruikshank's complaint for lack of prosecution pursuant to
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Rule 41 (b), M.R.Civ.P. After briefing by both parties, the court
granted Bower's motion and dismissed Cruikshank's complaint.
Cruikshank appeals from the District Court's order dismissing his
complaint.
Did the District Court err in dismissing Cruikshank's
complaint for lack of prosecution?
Cruikshank argues that the District Court erred by dismissing
his complaint based on the criteria set forth in this Court's
previous opinion in DeJana v. Oleson (19941, 264 Mont. 62, 869 P.Zd
785. We review a district court's dismissal of a civil action for
failure to prosecute to determine whether the court abused its
discretion. Becky v. Norwest Bank (1990), 245 Mont. 1, 798 P.2d
1011.
In DeJana, 869 P.Zd at 787, this Court set forth the factors
which a district court must consider before dismissing an action
for failure to prosecute. Those factors are:
1. the plaintiff's diligence in prosecuting his or her
claims;
2. the prejudice to the defense caused by the plaintiff's
delay;
3. the availability of alternate sanctions; and
4. the existence of a warning to plaintiff that his or her
case is in danger of dismissal.
Over seven years passed between Cruikshank's filing of his
initial complaint and the District Court's dismissal. Cruikshank
argues that the court failed to act on his 1992 motion to set aside
the default judgment entered in favor of Bower on her counterclaim.
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He insists that the delay from that point on is attributable to the
District Court and should therefore not be grounds for dismissal.
We disagree.
While the court failed to act on Cruikshank's motion to set
aside the default judgment on the counterclaim, this related only
to the counterclaim. The court's failure to act on Cruikshank's
motion did not prevent him from proceeding on his amended
complaint. As the plaintiff, Cruikshank had an affirmative duty to
process his complaint. Cruikshank took few if any affirmative
steps to bring this cause of action to trial or to reach a
settlement. We conclude that Cruikshank was not diligent in
prosecuting his claim and that the delay was not attributable to
the District Court.
Concerning the second criteria, whether the defendant was
prejudiced by the delay, this Court has previously held that once
an unreasonable delay has been shown, the plaintiff has the burden
of establishing a reasonable excuse for the delay. Calaway v.
Jones (1978), 177 Mont. 516, 520, 582 P.2d 756, 758; Shackleton v.
Neil (19831, 207 Mont. 96, 102, 672 P.2d 1112, 1115. As discussed
above, Cruikshank has not been able to attribute the delay to the
District Court nor does he present any other reasonable explanation
for the seven-year lapse of time since the filing of his initial
complaint. We conclude that the delay in this case was
unreasonable and Cruikshank has failed to establish a reasonable
excuse for it. The delay is therefore presumptively prejudicial to
the defendant, Bower.
We likewise agree with the District Court that after seven
years of inactivity, no other reasonable sanctions exist. Nothing
in the record reveals that, given another chance, Cruikshank would
diligently prosecute his claim and he suggests no other
alternatives which appear reasonable to this Court. We conclude
that no available sanctions exist which would not further prejudice
Bower.
Finally, Bower filed a motion to dismiss for lack of
prosecution. Both parties were given ample opportunity to brief
the issue and both in fact submitted arguments to the District
Court. We conclude that Cruikshank was given sufficient notice
that his complaint was in jeopardy of being dismissed.
We hold that the District Court did not abuse its discretion
for dismissing Cruikshank's complaint for failure to prosecute.
AFFIRMED.
Chief Justice
We concur:
Justices
Justice Terry N. Trieweiler dissenting.
I dissent from the majority's conclusion that the District
Court did not abuse its discretion when it dismissed the
plaintiff's complaint for failure to prosecute. The principal
problem with this case was a failure to adjudicate.
Plaintiff's original complaint was filed on December 18, 1987.
A motion to dismiss was filed within 30 days. Briefs were filed in
support and in opposition to that motion. However, the District
Court simply failed to rule on the motion.
On January 8, 1990, the plaintiff filed an amended complaint.
Two weeks later, the defendant filed a motion to dismiss that
complaint. Again, briefs were filed both in support of and in
opposition to the defendant's motion. However, once again the
District Court simply failed to issue any order.
Finally, on June 22, 1990, having had no resolution of either
motion to dismiss, and therefore, no answer having been filed,
plaintiff simply moved the court to dismiss his claim in state
court without prejudice so that he could refile it in federal
court. No objection appears to have been filed to that motion.
However, neither did the District Court ever grant or deny it.
On February 5, 1991, with still no answer to the plaintiff's
amended complaint, the defendant filed a counterclaim in which she
pointed out that during the pendency of the state court action
plaintiff had apparently filed a complaint seeking similar relief
in the federal district court. In her counterclaim, she sought
sanctions pursuant to Rule 11 for vexatious and groundless
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litigation and damages for abuse of process. On April 10, 1991,
the defendant sought and received entry of the plaintiff's default
for not having responded to her counterclaim in a timely fashion.
On October 31, 1991, plaintiff moved to set aside the default which
had been entered by the clerk without notice to the plaintiff.
That motion was again fully briefed but never ruled upon.
Prior to that date, on September 30, 1991, plaintiff had
apparently attempted to conduct discovery because on October 28 of
that same year the defendant filed objections to plaintiff's
interrogatories and requests for production.
On November 14, 1994, while all of the aforementioned loose
ends were pending in the District Court, defendant filed a motion
to dismiss the amended complaint for lack of prosecution pursuant
to Rule 41(b), M.R.Civ.P. After briefs were submitted, but before
issuing any warning to the plaintiff, and without consideration of
alternative sanctions, the District Court issued its order
dismissing plaintiff's amended complaint for lack of prosecution on
December 29, 1994.
I conclude that the District Court abused its discretion when
it dismissed plaintiff's amended complaint for two reasons. First,
assuming that the four factors relied upon by the majority and set
forth in DeJanav.OIeson (1994), 264 Mont. 62, 869 P.2d 705, have any
merit, their application does not justify dismissal in this case.
(1) It was not the plaintiff's lack of diligence which precluded
resolution of this dispute. It was the District Court's lack of
diligence. It would have been unreasonable and irresponsible to
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incur further expense of litigation while a fully briefed motion to
dismiss the plaintiff's amended complaint WFLS pending.
(2) Absolutely no consideration was given in this case to alternate
sanctions, such as imposition of costs, attorney fees, or other
damages which may have been sustained by the defendant as a result
of delay. To arbitrarily conclude, as the majority does, that "no
other reasonable sanctions exist," makes a mockery of the
requirement that alternate sanctions be considered. (3) No warning
was given to the plaintiff that his case was in danger of
dismissal. Notice of a motion to dismiss for lack of prosecution
is not a warning. The requirement that there be a warning presumes
that the party being warned has an opportunity to cure the
situation about which he is being warned. A motion to dismiss
affords no such opportunity. It simply invites a response or
argument regarding the merits of the motion. The majority's
simplistic approach to this issue again renders meaningless the
requirement that the District Court provide a warning.
Second, the whole idea of the DeJana criteria is a typically
presumptuous and uninformed judicial approach to how attorneys
should handle their cases. The criteria reflect the inclination of
appellate courts to ignore common sense solutions whenever a
bureaucratic formula can be relied on instead.
The solution to delay in the district court is for the court
to set a case for trial. However, only the district court can do
that.
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The penalty for lack of preparation is usually failure.
However, the attorney handling the case is in the best position to
know what preparation is necessary for that case, and that
preparation may not be reflected by formal discovery.
The district court, and only the district court, has the power
to move cases to a conclusion. It strikes me as odd when district
courts refuse to do so and then punish one of the parties who has
no control over the matter. It strikes me as even more strange
when this Court applies some arbitrary, irrelevant criteria to
justify what the district court did.
For these reasons, I dissent from the majority opinion. I
would reverse the District Court's dismissal of the plaintiff's
complaint.
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