                                 No. 87-55
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1987



MICHAEL MARTIN,
                 Petitioner and Appellant,
         -vs-
BOARD OF LABOR APPEALS, EMPLOYMENT
SECURITY DIVISION, MONTANA STATE
DEPARTMENT OF LABOR & INDUSTRY,
and NORTHERN MONTANA HOSPITAL,
                 Respondents and Respondents.



APPEAL FROM:     District Court of the Twelfth Judicial District,
                 In and for the County of Hill,
                 The Honorable Chan Ettien, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Steven L. Bunch, Montana Legal Services, Helena,
                 Montana
         For Respondent:
                 Rebecca L. Smith, Dept. of Labor   &   Industry, Helena,
                 Montana
                 Bruce E. Swenson, Havre, Montana


                                   Submitted on Briefs:      April 9, 1987
                                     Decided: May 2 6 1 1 9 8 7

Filed:    MAY 2 6 1987


                                   Clerk
Mr. Justice John C.   Sheehy delivered the Opinion of the
Court.

     Michael Martin appeals an order of the Twelfth Judicial
District, Hill County, dismissing without prejudice his
petition for judicial review of a Board of Labor Appeals
decision on the grounds that he failed to prosecute the
action. We reverse and remand.
     Michael Martin was hired as a patient aid at Northern
Montana Hospital in May, 1982.      Sixteen months later, in
August, 1983, he was discharged for failure to complete his
work assignments. He applied for unemployment compensation,
but his application was denied by the Board. of Labor Appeals
(Board) in September.     The Board affirmed its denial in
December, 1983.
     Martin filed a petition on January 17, 1984, for
judicial review in the Twelfth Judicial District Court in
Havre.   Northern Montana Hospital answered and the Board
filed a motion to dismiss, which was denied. The Board then
responded to Martin's petition for judicial review, at the
same time filing a notice stating:
     That pursuant to       39-51-2410, MCA, that the
     Department [of Labor] shall be deemed to be a party
     in any judicial action involving an appeal of a
     Board of Labor Appeals administrative decision.
     That neither the Department nor the Board have any
     direct interest in this action and, therefore, will
     not actively participate therein.
This notice was dated March 6, 1984.
     Over two years later, on June 18, 1986, the Department
and Board filed an amended notice of participation stating
that the March 6, 1984 notice was withdrawn and that the
following notice was to be substituted in its place:
     1. The Board and the Department shall continue to
     be a party in this matter, and compliance with the
     requirements for filing and service pursuant to
     Rule 5, M. R. Civ. P. is requested. Accordingly, all
     notices, pleadings and orders should be transmitted
     to the Board and the Department.
     2. They do not intend to become actively involved
     in this matter, but reserve the right to do so if
     any party raises an issue of importance to the
     Department or Board.
     3. In the event that the petitioner fails to
     prosecute this matter within a reasonable period of
     time as set forth in Rule 41 (b), M.R.Civ.P.; or
     fails to respond as set forth in Uniform District
     Court Rule No. 11, the Board and Department may
     move   for   dismissal   or   summary   ruling   as
     appropriate.
     In the period between March, 1984, when the Department
and Board filed their first notice, and June, 1986, when the
second notice was filed, the administrative record was
transcribed and submitted to the District Court and the case
was treated by both parties as appropriate for summary
judgment. On December 6, 1984, Martin had submitted a motion
for summary judgment and motion for judgment on the record
along with a brief in support of the petitions. The Hospital
responded with its motion and brief on January 18, 1985.
Both Martin's and the Hospital's briefs were served on
counsel for the Board.    Though the Board was notified the
case had been fully briefed and presented to the court for
disposition, it did not respond.
     When the case had not been decided by the summer of
1985, Martin's attorney contacted the Hospital's attorney and
on August 30, 1985, it was stipulated that the case would be
submitted on the briefs.    The Hospital's attorney informed
Martin's attorney that it was not the local practice for
attorneys to move for oral argument on summary judgment;
rather, if the District Court desired oral argument, it was
the court's practice to set oral argument hearing dates.
     The case sat submitted, but dormant, until December,
1986.   On December 12, 1986, seven months after filing its
amended order of participation, the Department of Labor filed
a motion to dismiss, supported by an affidavit, for failure
to prosecute.    No prior notice of this motion was given by
the Department to the other parties in the action.
     December 12 was a Friday.      A copy of the motion was
received by Martin's counsel the following Monday, December
15.   On Tuesday, December 16, the District Court ordered
Martin's petition for judicial review dismissed without
prejudice, based on the Department's motion for dismissal for
failure to prosecute. The form of the December 16 order had
been supplied to the court along with the motion to dismiss.
     Martin's counsel submitted a briefed motion for
reconsideration of the dismissal on December 19, which was
denied on December 24, 1986. Notice of entry of judgment was
filed January 2, 1987.
     The sole issue raised on appeal is whether the District
Court abused its discretion in granting the motion to dismiss
for failure to prosecute.
     Rule 41 (b), M.R.Civ.P. is controlling. It states "For
failure of the plaintiff to prosecute or to comply with these
rules or any order of court, a defendant may move for
d.ismissa1 of an action or of any claim against him."
     The parties here do not argue the facts or procedure,
but only the diligence with which Martin pursued his case.
Martin contends he was under no obligation to advance the
case or otherwise request the court to rule on his petition.
The District Court was responsible for the delay, he asserts,
hence the Department's and Hospital's remedy to spur action
should have been a petition for a writ of mandate.        The
Department and Hospital respond that Martin failed to
diligently pursue his case and that a motion to dismiss was
their most responsible alternative in pushing the case to its
conclusion.   For their purposes, they explain, a motion to
dismiss was a more satisfactory alternative for resolution of
the case than a writ of mandate.
     There is inherent power in a district court, in the
exercise of sound discretion, to dismiss an action for
failure to prosecute.    See Jangula v. United States Rubber
Co. (1967), 149 Mont. 241, 425 P.2d 319 and cases cited
therein.    However, the trial court's discretion is not
without bounds.    "[Ilt must be borne in mind that courts
'exist primarily to afford a forum to settle litigable
matters between disputing parties. ' "  Brymerski v. City of
Great Falls (1981), 195 Mont. 428, 431-432, 636 P.2d 846,
848. Further, the policy favoring the resolution of a case
on its merits is more compelling than the underlying policy
of Rule 41(b) of preventing unreasonable delays. Brymerski,
195 Mont. at 432, 636 P.2d at 849. Courts recognize the need
to balance judicial efficiency against a plaintiff's right to
meaningful access to the judicial system.
     Failure to prosecute simply means that a plaintiff has
failed to exercise due diligence in bringing his case to
conclusion. Shackleton v. Neil (Mont. 1983), 672 P.2d 1112,
40 St.Rep. 1920.    The mere lapse of time does not justify
dismissal if the plaintiff has not been lacking in diligence,
since expedition for its own sake is not the goal. Alexander
v. Pacific Maritime Assoc. (9th Cir. 1970), 434 F.2d 281.
     In the instant case, the District Court's dismissal of
Martin's action is simply not justified by the circumstances.
The petition for judicial review was filed in the District
Court in January, 1984. Martin made his motion for summary
judgment and motion for judgment on the record in December,
1984. Martin's motions were fully briefed at that time. The
Hospital's brief in support of its motion to dismiss was
    filed in January, 1985. The parties were thus asking for a
    legal decision based upon the record.      When the District
    Court did not act by August 30, 1985, the Hospital and Martin
    filed a stipulation that the case was fully submitted on the
    briefs.   All that remained was a decision by the District
    Court.   The parties were still waiting for the District
    Court's decision ten months later, when the Board filed its
    amended notice of participation in June, 1986. Seven months
    later, in December, 1986, the Board filed its motion to
    dismiss. Four days later the motion was granted, when Martin
    had but one day's notice that the motion was filed.
         It was as much the responsibility of the Hospital and
    the Department, as it was Martin's, to bring to the District
    Court's attention the fact that the pending motions had not
    been ruled upon. Yet the effect of the Department's motion
    to dismiss was to cast all of the responsibility upon Martin.
         We hold that the District Court abused its discretion by
    failing to provide Martin with meaningful access to the
    judicial system.     The dismissal was inappropriate.      We
    therefore reverse the District Court's dismissal and remand
    for further proceedings.
         Reversed and remanded.

                                             Justice
    We Co:

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