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West Point-Pepperell v. Tax Assessor
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Decision: 1997 ME 58
Docket: KEN-95-798
Argued September 4, 1996
Decided April 1, 1997

Majority: WATHEN, C.J., and GLASSMAN, RUDMAN, and LIPEZ, JJ.  



	[¶1]  West Point-Pepperell, Inc. (West Point) appeals from the
judgment entered in the Superior Court (Kennebec County, Fritzsche, J.)
dismissing its appeal of the State Tax Assessor's denial of its request for
reconsideration, for want of prosecution pursuant to M.R. Civ. P. 41(b)(2). 
West Point contends that the trial court abused its discretion in dismissing
the appeal, given West Point's good cause for failing to prosecute the appeal
for more than two years.  We disagree and affirm the judgment. 
	[¶2]  In October 1992, West Point filed in the Superior Court a
petition for review of the State Tax Assessor's (the State's) denial of its
request for a reconsideration of a decision involving interpretation of the
phrase "unitary business" in Maine's income tax statute, 36 M.R.S.A.
§ 5102(10-A) (1990 & Supp. 1996), and assessing corporate income taxes,
interest, and penalties totaling $140,183.08.  The State entered an
appearance and represented that because no record had been made below
none would be filed with the court.  In November 1992, West Point
proposed a joint motion for the taking of evidence and procedural order
("joint motion"), that included a schedule for filing a joint stipulated record
and for briefing that allowed seven weeks for the State's conduct of
discovery.  The State rejected the proposal due to the press of pending
matters, and proposed instead a revised joint motion without any deadlines
for discovery or briefing.  According to the State, such procedural orders are
a standard practice, having been proposed by the State and granted by the
trial courts in numerous other tax appeals.
	[¶3]  On December 1, 1992, the court granted a revised joint motion
submitted by the parties.  The court's procedural order states that the
"action shall proceed as any other civil action under the Maine Rules of Civil
Procedure and that this court shall take additional evidence in such form
and pursuant to such procedures as are available in other civil actions."  The
order also enlarged "the time for filing briefs . . . to such date as may be set
in a subsequent order of this court upon motion of the parties or as may be
stipulated by the parties."  Ordinarily, the procedural aspects of the court's
review of final agency action, such as this tax appeal, are governed by Rule
80(C).  Here, however, the court's order stipulates that the pretrial
procedure of Rule 16 of the Maine Rules of Civil Procedure was to apply. 
See M.R. Civ. P. 80(C)(k).  
	[¶4]  The court's procedural order was the last docket entry in the
case for nearly three years.  During that period the State never sought
discovery and West Point's only action was to send a letter to the State in
December 1994 proposing settlement negotiations.  Although the State
immediately invited a specific settlement proposal, West Point never
	[¶5]  Approximately eight months later, instead of placing the case on
the "41(b) list,"{1} the court scheduled it for a pretrial conference.  Although
the  pretrial conference was held, the State had earlier moved to dismiss
the appeal  pursuant to Rule 41(b)(2).{2}  At the hearing on the State's
motion, the State asserted that if the motion to dismiss were denied the
State would need additional time for discovery.  West Point's counsel
conceded that the law firm had overlooked the case, due in part to the
procedural order's lack of the deadlines for discovery and briefing that
normally would have been entered into its computerized case-tracking
system.  West Point's counsel further explained that he failed to follow up on
the State's invitation to make a settlement proposal in December 1994
because West Point had learned at that time that the State was planning to
conduct another audit which would likely result in an appeal involving the
same legal issues that had motivated the first appeal.   West Point chose to
wait and see what would happen during the second audit, without notifying
the State of its intentions or filing a motion with the trial court for a stay. 
	[¶6]  The court dismissed the action, citing "an absence of a showing
of good cause for the failure to prosecute" the appeal for more than two
Standard of Review
	[¶7]  We review the court's dismissal of an action for failure to
prosecute for an abuse of discretion.  Martell v. Jen Co.,  643 A.2d 904, 904
(Me. 1994); Miller v. Perry, 468 A.2d 981, 983 (Me. 1983).  Such abuse may
occur "'when a material factor deserving significant weight is ignored, an
improper factor is relied upon, or when all proper and no improper factors
are assessed, but the court makes a serious mistake in weighing them.'" 
Coon v. Grenier, 867 F.2d 73, 78 (1st Cir. 1989) (citation omitted). 
Although we recognize the "constitutional implications of dismissal and give
greater scrutiny to the decision to dismiss than we would give to a lesser
sanction, we will not lightly overrule the trial court's decision."  Orlandella
v. O'Brien, 637 A.2d 105, 106 (Me. 1994) (citations omitted).  The "good
cause" showing for keeping an action on the docket, explicit only in Rule
41(b)(1), is also applicable to 41(b)(2).  Department Human Serv.  v. Vining,
617 A. 2d 555, 558 (Me. 1992).  "Good cause" is "a highly relative concept
[which] lacks fixed and definite meaning, and the application of it requires
the court to evaluate 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) (citation omitted).  We
have explained that good cause

as a condition for avoiding dismissal for want of prosecution is
somewhat broader in scope than the reasons of 'mistake,
inadvertence, surprise, or excusable neglect' which Rule 60(b)
requires to be shown for justifying relief from final judgments. 
Indeed, it includes them.  Although excusable neglect may constitute
good cause for keeping an action on the docket and avoiding dismissal
under Rule 41(b)(1), inexcusable neglect does not. 
Leadbetter Int'l Trucks, Inc. v. State Tax Assessor, 483 A.2d 1226, 1229
(Me. 1984) (citation omitted).
	[¶8]  The State bears some responsibility for inducing the delay in this
case.  The procedural order was entered at the behest of the State, which
sought more time for discovery.   After nearly three years the State had
failed to conduct discovery and therefore remained unprepared to go
forward with the case when it filed its motion to dismiss for failure to timely
prosecute.  Any suggestion that the State was too eager to exploit the
plaintiff's delay, however, is belied by its having filed the Rule 41(b)(2)
motion to dismiss well after the requisite two years had passed, and not
until the State itself was reminded that the appeal was still pending by the
pretrial conference notice it received from the court in August 1995.  
Moreover, the State responded promptly to the plaintiff's December 1994
letter suggesting settlement discussions by requesting a more detailed
proposal.  There followed eight months of silence on the part of the plaintiff
before the court noticed a pretrial conference, by which time nearly three
years had passed since the entry of the agreed on procedural order.  On
these facts the State cannot be charged with seeking a procedural default on
the basis of a minor lapse by an adverse party.
	[¶9]  In the final analysis, the plaintiff bears primary responsibility for
the long delay in the prosecution of this case.  We have made clear that it is
not the trial court's responsibility to police the docket, but that of the "party
seeking review and his attorney . . . to take notice of the docket entries
made in their case, . . . to look after their pending cases and take such
proper steps [to] promote diligent resolution of the issues raised." 
Leadbetter, 483 A.2d at 1231.  Moreover, pursuant to a proposal from the
parties, the court ordered that Rule 16 should govern the pretrial procedure
of this tax appeal.  See M.R. Civ. P. 16.
	[¶10]  Rule 16 places on the plaintiff certain obligations to move a case
forward, including the initiation of a scheduling conference and the filing of
a pretrial scheduling statement even if the defendant is not available for
conference.  M.R. Civ. P. 16(b).  On the filing of such a statement, the court
orders the placement of the case on the regular or expedited pretrial list. 
M.R. Civ. P. 16(c)(1) & (d)(1).  If the court assigns the case to the expedited
pretrial list, the court establishes the discovery deadlines in an order
placing the case on that list, and the order governs the further processing of
the action.  M.R. Civ. P. 16(c)(1) & (2).  If the case is assigned to the regular
pretrial list, the plaintiff moves the case forward for pretrial conference or
trial by filing a detailed pretrial memorandum and serving it on the other
parties.  M.R. Civ. P. 16(d)(2) & (3).   A plaintiff's failure to file a pretrial
memorandum may result in a default judgment pursuant to Rule 55,
sanctions pursuant to Rule 16(h), or "involuntary dismissal for failure to
comply with these rules under Rule 41(b)(2)."  M.R. Civ. P. 16(d)(2).  West
Point's attempt to justify its failure to prosecute by noting the procedural
order's lack of deadlines ignores its primary responsibility pursuant to Rule
16 to move the case forward.  
	[¶11]  West Point suggests that the State had some responsibility to
move West Point's tax appeal forward.  This suggestion is contrary to the
basic tenet that the party alleging error bears the burden of initiating and
advancing the action to establish that error.   Moreover, since the State is
entitled to collect interest that accrues due to the delay caused by an appeal,
36 M.R.S.A. § 186 (1990 & Supp. 1996), the taxpayer has a significant stake
in the timely prosecution and determination of the taxpayer's challenge to
an assessment.  
	[¶12]  West Point also contends that the court's dismissal of this
action does not serve the underlying purpose of Rule 41 to "clear stale
actions from [the] 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 a meritorious case."  Thorne v. Pickering, 519
A.2d 718, 720 (Me. 1987) (citation omitted).  West Point emphasizes the
continuing validity of its appeal and its potential relevance to the legal
proceedings which may occur pursuant to a second audit conducted by the
State.  A meritorious action, however, can become stale through inattention. 
Cf. Leadbetter, 483 A.2d at 1232 (no abuse of discretion in Rule 41(b)(1)
dismissal despite a strong case on the merits involving a substantial sum of
money and where delay would not have prejudiced other party); Burleigh v.
Weeks, 425 A.2d 623, 625 (Me. 1981) (no good cause for failure to
prosecute due to pendency of another proceeding where stay of principal
action was never sought).  By any measure of time this appeal had become
stale through inattention, thereby frustrating the efforts of the court to
resolve cases in a timely fashion and avoid congestion in our trial courts. 
Whatever the merits of this appeal might have been, there was no good
cause for allowing it to languish for almost three years.
	[¶13]  The court did not abuse its discretion in ordering dismissal of
the action.   
	The entry is:
		Judgment affirmed.

DANA, J., with whom ROBERTS and CLIFFORD, JJ., join, dissenting. [¶14] I respectfully dissent. Requiring no discovery, the taxpayer proposed a short schedule for the filing of a stipulated record and briefs. The Assessor needed discovery and insisted on an open-ended schedule with no deadlines. The taxpayer acquiesced and the court issued an order deferring the time for the filing of briefs until "such date as may be set in a subsequent order of this court upon motion of the parties or as may be stipulated by the parties." Because the order set no deadlines, the attorneys for the taxpayer entered none in their office tickler system and waited for the Assessor to take its discovery. The Assessor did nothing. The court, blaming an antiquated docket control system, never imposed any deadlines and failed to bring the matter to the parties' attention for almost three years. Although the Assessor, the taxpayer, and the system all share some of the responsibility for the delay in the prosecution of this tax appeal, the court's order punished only the taxpayer. I believe that the trial court exceeded the bounds of its discretion when it imposed the ultimate sanction of dismissal on West Point-Pepperell, Inc. Attorneys for plaintiff:
Robert H. Stier, Jr., Esq. (orally) Glenn Israel, Esq. Bernstein, Shur, Sawyer & Nelson P O Box 9729 Portland, ME 04104-5029 Attorneys for defendant: Andrew Ketterer, Attorney General Clifford B. Olson, Asst. Atty. Gen. (orally) 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1} The term "41(b) list" refers to a provision permitting the court on its own motion to dismiss a case for failure to prosecute pursuant to Rule 41(b)(1). Miller v. Perry, 468 A.2d 981, 983 (Me. 1983). {2} M.R. Civ. P. 41 provides in pertinent part: (b) Involuntary Dismissal: Effect Thereof. (1) On Court's Own Motion. The 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 a continuance. (2) On Motion of Defendant. For failure of the plaintiff to prosecute for 2 years 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 the defendant. (3) Effect. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision (b) and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.