                                             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

                                                                              2
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.

                                                                                     3
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

                                                                        6
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

                                                                                    7
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.


                                                                 8
          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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