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Kingsbury v. Forbes et al.
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:	1998 ME 168
Docket:	Cum-97-739
Submitted
On Briefs:	May 11, 1998
Decided: 	June 30, 1998

Panel:	WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, and SAUFLEY, JJ.
Majority:  WATHEN, C.J., and RUDMAN, LIPEZ, and SAUFLEY, JJ.
Dissenting:  ROBERTS, CLIFFORD, and DANA, JJ.

KATHY KINGSBURY

  v.

   ROBERT FORBES et al.

SAUFLEY, J.

	[¶1]  Robert Forbes appeals from a judgment entered in the Superior
Court (Cumberland County, Fritzsche, J.) dismissing, pursuant to M.R. Civ. P.
41(b), his appeal from a small claims judgment in the District Court
(Portland, Goranites, J.).  Forbes argues that he was not required to take any
affirmative action to prosecute his appeal until notified to do so by the court. 
We disagree and affirm the judgment.
	[¶2]  In July 1994, Kathy Kingsbury filed a small claims action against
Robert Forbes and Steve Forbes arising out of the sale of a truck.  After a
hearing, judgment was entered against both defendants.{1}  On October 14,
1994, Robert Forbes filed a notice of appeal pursuant to M.R. Civ. P. 76D.{2} 
He also filed an affidavit, setting forth the grounds for the appeal and
seeking relief as follows:

I would appeal the judgement against me on question of law[.] I
understand that the absence of transcript makes such appeal
difficult.  Should the court be unwilling to allow appeal on
question of law, I respectfully request a new hearing de novo. 

	[¶3]  In October 1994, the case was transferred to the Superior
Court, and the clerk notified the parties that the case was entered on the
docket.  No further action of record was taken for nearly three years.  Forbes
made no inquiry about the status of his appeal, nor did he file any motion,
request or other document with the clerk's office.  On September 11, 1997,
the Superior Court placed Forbes's appeal on the Rule 41(b) list.  The
court's order provided that "[i]f no motion to retain on the docket is filed
within thirty days of this order, the following cases are dismissed with
prejudice and without further notice under M.R. Civ. P. 41(b)."  Forbes
subsequently moved to retain the case on the docket alleging that "[no]
further action has been taken by the court" and that Forbes had "been
waiting for his jury trial to be scheduled."  The court nonetheless dismissed
the appeal, noting that "Forbes has not taken any efforts to prosecute his
appeal in three years . . . ."  This appeal followed.
	[¶4]  Pursuant to M.R. Civ. P. 41(b)(1), "[t]he court, on its own
motion, after notice to the parties, and in the absence of a showing of good
cause to the contrary, shall dismiss an action for want of prosecution at any
time more than two years after the last docket entry showing any action
taken therein by the plaintiff other than a motion for continuance."  We have
stated that "good cause" is a flexible concept and its application requires
the trial court to consider "the circumstances of each individual case and
then to make its determination by exercising a sound discretion."  Emerson
v. A.E. Hotels, Inc., 403 A.2d 1192, 1193 n.2 (Me. 1979).  We review the
dismissal of an action pursuant to Rule 41(b) to determine whether the
court exceeded the bounds of its discretion.  See West Point-Pepperell, Inc.
v. State Tax Assessor, 1997 ME 58, ¶ 7, 691 A.2d 1211, 1213.  
	[¶5]  To establish good cause, Forbes points to the responsibility of
the clerk's office to notify him of the next step in the proceedings.  When a
defendant in a small claims proceeding appeals from a judgment entered in
the District Court, there are three possible courses of action that may follow. 
If the defendant has not demanded a jury trial, the appeal will be on
questions of law and the court will be guided by Maine Rules of Civil
Procedure 76F, 76G, and 76H(d).  See M.R.S.C.P. 11(d)(1), (2), (3), (5);
M.R.S.C.P. 11(e).  If the defendant has demanded a jury trial and the court
concludes that there is a genuine issue of material fact for trial, then the
action will be tried to a jury pursuant to M.R. Civ. P. 80L.  See M.R.S.C.P.
11(d)(2); M.R. Civ. P. 80L(c)(2).{3}  If the defendant has demanded a jury trial,
and the court concludes that the defendant has not shown that there is a
genuine issue of material fact for trial, the appeal must be dismissed unless
either party has raised an independent question of law for the court.  See
M.R. Civ. P. 80L(c)(3).  
	[¶6]  Although Forbes contends that his appeal properly requested a
jury trial, his notice of appeal was not clear on that point.  Regardless,
however, of the nature of the appeal, the file should have been presented to
the court for a determination of the future course of the proceedings. 
Whether the matter was to be tried to a jury, heard on issues of law, or
dismissed, the clerk's office and the court were responsible for the next
step in the process.  In the ordinary course, Forbes would have received an
order regarding pretrial proceedings, a briefing schedule, or a notice of
dismissal.  It is clear from the record, however, that the clerk did not
present the file to the court for review of the sufficiency of Forbes's affidavit
pursuant to M.R. Civ. P. 80L(c) or otherwise take any action pursuant to
M.R.S.C.P. 11.  Because he never received notification of the next step in the
process, Forbes contends that he had no responsibility to pursue the matter
or otherwise prosecute his appeal.  
	[¶7]  We disagree with Forbes's position, however, because it
completely disregards the duty of parties to pursue their rights with
diligence. See Leadbetter Int'l Trucks, Inc. v. State Tax Assessor, 483 A.2d
1226, 1230-31 (Me. 1984) (parties required to use due diligence in
monitoring their cases); S.D. Warren Co. v. Fritz, 138 Me. 279, 25 A.2d 645
(1942).  Moreover, notwithstanding the court's inaction, the dismissal of
Forbes's appeal was consistent with the purpose underlying Rule 41(b). 
See Burleigh v. Weeks, 425 A.2d 623, 624 (Me. 1981) (observing that Rule
41(b) is designed to allow court to "clear stale actions from its docket so
that limited judicial resources may be expended on those cases to which the
plaintiffs litigant have given the attention they would be expected to give
meritorious causes of action.").  In light of his separate duty to prosecute the
appeal, Forbes's reliance on the clerk's office cannot constitute good cause
for three years of inaction.  This duty has particular force in view of the
requirement that the Maine Rules of Small Claims Procedure be construed
"to secure the just, speedy, and inexpensive determination of every action
. . . ."  M.R.S.C.P. 1 (emphasis added).  
	[¶8]  The substantial period of dormancy seriously undermines
Forbes's claim that he was merely waiting for the court to schedule a jury
trial.  Parties must be reasonably vigilant in assuring that their cases do not
fall through the cracks.  Requiring an inquiry into the status of a matter after
a prolonged period of inaction places no onerous burden on a party.   A
simple phone call to the clerk's office in this case would have brought the
oversight to the clerk's attention and returned the case to its normal track.{4} 
Although dismissal is a severe sanction which should be invoked sparingly,
see State v. Bowring, 490 A.2d 667, 669 (Me. 1985), we will not allow an
appellant to leave an appeal dormant for three full years.  The Superior Court
did not exceed the bounds of its discretion in determining that Forbes's
failure to pursue a reasonably timely resolution of his appeal warrants that
sanction.  
	The entry is:

Judgment affirmed. 

DANA, J., with whom ROBERTS and CLIFFORD, JJ., join, dissenting.

	[¶9]  I respectfully dissent.  The Court acknowledges that the clerk's
office and the Superior Court "were responsible for the next step in the
process," yet charges Forbes, a pro se party, with knowledge of an obligation
to take some unspecified action to prosecute his appeal.  It bases this
responsibility on the general duty of parties to pursue their rights with
diligence, supported by the purpose of the small claims procedure to secure
the just, speedy, and inexpensive determination of every action.  In fact, the
Rules of Small Claims Procedure are to be "construed to secure the just,
speedy, and inexpensive determination of every action in a simple and
informal way."  M.R.S.C.P. 1 (emphasis added).  The Court's emphasis on the
"speedy" resolution of claims, together with its omission of the Rule's
"simple and informal" mandate, leads it to a result that is far from "just."
	[¶10]  In fact, the circuitous path that must be followed to come to
the realization that Rule 41(b) applies in these circumstances would
challenge even experienced civil practitioners.  Starting with Small Claims
Rule 11(d)(2), we learn that appeals from a judgment of the District Court in
a small claims action in which a jury trial is demanded "shall be tried to a
jury by the Superior Court in accordance with Rule 80L of the Maine Rules of
Civil Procedure."  By turning to Rule 80L(c)(5), we discover that M.R. Civ. P.
41 applies to jury trials de novo in small claims appeals, "so far as
applicable."  Next, in order to determine whether Rule 41(b), which speaks
in terms of inaction by a plaintiff, is in fact applicable to a small claims
appeal brought by a defendant, it is necessary to go outside the Rules and
glean from our decisions in West Point-Pepperell, Inc. v. State Tax Assessor,
1997 ME 58, 691 A.2d 1211, and Leadbetter Int'l Trucks, Inc. v. State Tax
Assessor, 483 A.2d 1226 (Me. 1984), that perhaps the term "plaintiff" as
used in Rule 41(b) does not always mean "plaintiff" in the literal sense of
the word.  It is difficult to imagine a procedure more remote from the goals
of simplicity and informality than the convoluted course required to be
followed here in order to determine Rule 41(b)'s applicability.
	[¶11]  A pro se party who has complied with the requirements of the
rules and reasonably has placed the responsibility for the next step in the
proceedings in the hands of the court, in my opinion, has demonstrated the
good cause necessary to prevent dismissal pursuant to M.R. Civ. P. 41(b). 
Holding pro se litigants involved in small claims actions to the technical
requirements of Rule 41(b) in circumstances where the court system has
failed to fulfill its own responsibilities defeats the goal of providing a litigant-
friendly procedure to resolve small claims disputes.  I would therefore
vacate the judgment of the Superior Court.

Attorney for the Plaintiff:
				
Richard G. Cervizzi, Esq.
7 Oak Hill Plaza
P.O. Box 836
Scarborough, Maine 04070-0836

Attorney for the Defendant:

John E. Geary, Esq.
251 U.S. Route 1
Falmouth, Maine 04105