                                No. 8 6 - 5 0
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1986




DIVERSIFIED REALTY, INC.,
a Montana corporation,
                Plaintiff and Appellant,


MARTHA E. HOLENSTEIN, Individually
and as Personal Representative of
the Estate of Paul Holenstein; ALOIS
G. HOLENSTEIN, RUDY E. ENDRESSE,
LEO GILBERT, METALS BUILDING, INC.,
and DOWN TOWN STAMP, INC.,
                Defendants and Respondents.




APPEAL FROM:    District Court of the Second Judicial District,
                In and for the County of Silver Bow,
                The Honorable Arnold Olsen, Judge presiding.

COUNSEL OF RECORD:

      For Appellant:
                Christopher G. Miller, Butte, Montana

       For Respondent:
                Burgess, Joyce & Whelan; Thomas F. Joyce, Butte,
                Montana
                Earl Genzberger, Butte, Montana




                                  Submitted on Briefs: April 17, 1 9 8 6
                                     Decided:   July 15, 1 9 8 6
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

        This is an appeal by the plaintiff of an order of the
Silver Bow County District Court, the Honorable Arnold Olsen
presiding, granting the defendants' motion to dismiss the
plaintiff's action for failure to prosecute.                   We affirm.
        The facts of this case are undisputed by the parties.
        Diversified Realty, Inc.           (hereinafter "Diversified")
brought this action on March 9, 1977, against the defendants,
most of whom were formerly directors of Diversified Realty.
The   complaint   sought damages       against the defendants          for
losses incurred by Diversified as a result of acts of alleged
mismanagement     and   a   breach    of    fiduciary    duties   by   the
defendants.     The complaint also alleged that the corporate
defendants, Metal Buildings, Inc. and Downtown Stamp, Inc.,
had benefitted from the improper actions of the individual
defendants.     On July 16, 1979, the defendants filed their
answers and counterclaims.
        On July 17, 1979, John Peterson, Diversified's original
counsel in this matter, withdrew from the case.                Thereafter,
Robert Emmons was substituted as counsel for Diversified.
        On January 12, 1982, a notice of the District Court's
intention to dismiss Diversified's case without prejudice was
mailed to counselor Emmons.           This notice advised counselor
Emmons that the trial court would dismiss Diversified's case
without prejudice for lack of any activity within a one year
period unless good cause could be shown.                Pursuant to this
notice and local court rules, Diversified's case was ordered
dismissed without prejudice on March 9, 1982.               On April 2,
1982,    counselor      Emmons   filed      a   motion    to    reinstate
Diversified's     action.        As   grounds     for     reinstatement,
counselor Emmons advised the trial court that he had not
received the notice of intention to dismiss.                A hearing on
this motion was held and on November 9, 1982, the trial court
vacated its previous order and reinstated Diversified's case.
        It is also important to note that in the trial court's
order reinstating          Diversified's     action, it     specifically
ordered counsel to proceed with "all diligence to bring the
matter on for trial."
        On January 21, 1983, Mr. Emmons withdrew as counsel and
Scott Radford was substituted as new counsel for Diversified.
No further action was taken on the case until June 19, 1985,
when    Mr.   Radford     withdrew   as    counsel    for   Diversified.
Christopher Miller was thereafter substituted as new counsel
for    Diversified   on    June   28,     1985   (Diversified's fourth
counsel in this matter), and he immediately scheduled the
depositions of some of the defendants on July 31, 1985.              The
deposition date was later vacated by agreement of counsel and
reset for August 27, 1985.
        On August 22, 1985, the defendants moved to dismiss
Diversified's case for failure to prosecute pursuant to Rule
41 (b), M.R.Civ.P.        A hearing was held and on November 19,
1985, the trial court found that since more than eight years
had elapsed since the institution of the case, and also since
Diversified had made no effort to prosecute the matter, the
case should be dismissed with prejudice.             From this order of
the trial court, Diversified appeals.
       Diversified now basically presents the following issue
for review by this Court: Whether the District Court erred by
granting the defendants' motion to dismiss for failure to
prosecute.
      A motion to dismiss an action for failure to prosecute
is governed by Rule 41(b) of the M.R.Civ.P,   which provides in
pertinent part:
           For failure of the plaintiff to prosecute
           or to comply with these rules or any
           order of court, a defendant may move for
           dismissal of an action or of any claim
           against him.
      Diversified strongly relies on the case of Brymerski v.
City of Great Falls (1981), 195 Mont. 428, 636 P.2d 846, to
support its position that the trial court erred in granting
the defendant's motion to dismiss for failure to prosecute.
Diversified contends that although Brymerski states it is
within the sound discretion of the trial court to dismiss an
action for failure to prosecute, and its decision will not be
overturned absent a clear showing of an abuse of discretion,
Brymerski also states that the trial court's discretion is
not without bounds.   In the Brymerski decision, Diversified
argues, this Court held that where the plaintiffs had resumed
prosecution of their action prior to the time a motion to
dismiss was filed by the defendants, the motion should be
denied.
           We adopt the rule that a motion to
           dismiss for failure to prosecute will not
           be granted if the plaintiff is diligently
           prosecuting his claim at the time the
           motion is filed, even if at some earlier
           time the plaintiff may have failed to act
           with due diligence.     (Emphasis added.)
Brymerski, 636 P.2d at 848-849.
      As applied to the instant case, Diversified argues it
resumed prosecution of its claim on June 28, 1985, when its
present counsel, Chris Miller, scheduled the depositions of
some of the defendants.   Diversified notes that defendants'
motion to dismiss was filed on August 22, 1985, nearly two
months after counselor Miller had originally scheduled the
depositions.       Under   the    rule   of    the    Brymerski    case,
Diversified argues, the defendants ' motion to dismiss should
be denied. We disagree.
       Under    the   arguments     presented        in   its     briefs,
Diversified would have this Court interpret the Brymerski
decision to mean that anytime a plaintiff begins discovery
(however modest) prior to the time a motion to dismiss for
failure to prosecute is filed, all prior dilatory conduct
(however great) is excused and the motion to dismiss should
be denied.     Specifically, the argument of Diversified is that
since it scheduled the depositions of the defendants before
they   filed   their motion      to dismiss, its prior          dilatory
conduct is excused and, therefore, the motion to dismiss
should be denied.      We hold the Brymerski decision does not
stand for such a proposition.        Rather, Brymerski makes the
point that where a plaintiff has              "actively" resumed the
prosecution of his case, the policy for resolving the case on
its merits is more persuasive than the policy of Rule 41(b)
which favors the speedy administration of justice.              As this
Court in Brymerski stated:
             If a plaintiff has actively resumed the
             prosecution of a case, the policy
             favoring the resolution of a case on its
             merits is more compelling than the policy
             underlying Rule 41(b) which is to prevent
             unreasonable delays.    (Emphasis added.)
Brymerski, 636 P.2d at 849.
       There is, therefore, no hard and fast rule that a
plaintiff may cure any defect arising from delay by beginning
discovery and consequently avoiding the impact of Rule 41(b).
Instead, the trial court has the discretion to examine the
circumstances of each particular case and then determine
whether the motion to dismiss for failure to prosecute should
be granted.     When exercising its discretion, the trial court
should observe the general rules quoted in Brymerski above
and should also determine whether the key words from these
quotes are present: whether the plaintiff was "diligently" or
"actively" prosecuting his claim at the time the motion to
dismiss was filed.
         In the instant case, the trial court determined that
Diversified was not "diligently" or "actively" prosecuting
its claim at the time the defendants filed their motion to
dismiss.      The court noted that although Diversified had
scheduled some depositions approximately two months before
the defendants filed their motion to dismiss, this activity
by   Diversified   did     not   amount    to   a diligent effort to
prosecute    its   case because this was Diversified's                first
movement on the case since it was filed some eight years
earlier.     The trial court was also undoubtedly influenced by
the fact that Diversified ignored the language of one of its
earlier orders.       As explained in the facts section of this
opinion, the trial court issued an order on November 9, 1982,
which    reinstated    Diversified's       case   after   it   had    been
dismissed without prejudice for lack of any activity within a
one year period.          In reinstating Diversified's case, the
trial court specifically ordered counsel to act with "all
diligence to bring the matter on for trial."                Diversified
essentially    ignored     this earlier order because          2%     years
(November     9,   1982    to    June     28,   1985)   elapsed      before
Diversified did anything to ready its case for trial.                   The
record    indicates the     trial   court was well        justified      in
concluding that the circumstances of the instant case did not
fall within the scope of the Brymerski decision.
        It should also be noted that Diversified offers no
reasonable excuse for its delay in the prosecution of its
case.    See, Chicago Title Insurance Company v. Wheat (Mont.
1985), 699 P.2d 597, 42 St.Rep.    671.   Although Diversified,
as it suggests, may have been the victim of inadvertence and
mistake on the part of its numerous attorneys, it was still
at least partially responsible for the progress of its case
over an eight year period.    Diversified cannot obtain relief,
however unintentional, from its own lack of concern over such
an extended period of time.
        We find the trial court did not abuse its discretion by
granting the defendants' motion to dismiss for failure to
prosecute.
        The judgment of the District Court if affirmed.




We concur:
