Opinion Information Sheet

			

Bus. Servs. of Am. II, Inc. v. WaferTech, LLC

                                         No. 85654-1

       MADSEN, C.J. (dissenting) -- Dismissals for want of prosecution protect litigants 

from dilatory conduct and prevent unresolved and inactive prosecution from cluttering 

court records.  Franks v. Douglas, 57 Wn.2d 583, 585, 358 P.2d 969 (1961).  

Unfortunately, the majority applies CR 41(b)(1) to hold that the trial court erred in 

granting defendant WaferTech LLC's motion for dismissal for want of prosecution. But 

the rule does not apply because plaintiff Business Services of America II, Inc. (BSA) 

engaged in unacceptable litigation practices, taking this case outside of CR 41(b)(1).

       Dismissal is within the trial court's inherent discretion when there is no applicable 

court rule or statute that creates and guides the power to dismiss an action.  Snohomish 

County v. Thorp Meats, 110 Wn.2d 163, 167, 750 P.2d 1251 (1988).  Here, the trial court 

properly exercised its inherent discretion to grant defendant WaferTech's motion to 

dismiss.  Therefore, the Court of Appeals should be reversed and the trial court's order 

dismissing the action should be reinstated. Accordingly, I dissent from the majority 

opinion. 

No. 85654-1

       But even if CR 41(b)(1) did apply, the majority is wrong to place fault with 

WaferTech for failing to take some action toward an earlier resolution of the case. CR 

41(b)(1) does not permit evaluation of the defendant's conduct unless the failure to 

prosecute was caused by the defendant, which did not occur here.  The burden of moving 

the case forward is on the plaintiff.  The majority therefore inappropriately blames 

WaferTech for failing to move to dismiss the claim for want of prosecution at an earlier 

time and failing itself to respond to the trial court's notice regarding destruction of trial

exhibits.  WaferTech had no obligation to do either.  

                                          Discussion

       CR 41(b)(1) Does Not Apply; Inherent Authority

       CR 41(b)(1) addresses motions for dismissal on the ground that the plaintiff has 

failed to prosecute the action.  This provision requires dismissal of the suit on defendant's 

motion when the plaintiff has failed to note the case for trial within a year after an issue 

of fact or law has been joined, provided that the defendant is not responsible for the 

delay.  CR 41(b)(1); Thorp Meats, 110 Wn.2d at 167.  If the plaintiff notes the case for 

trial prior to the hearing on a motion for dismissal, then the rule provides that the case 

"shall not be dismissed."  CR 41(b)(1).

       However, the rule does not apply when the plaintiff engages in unacceptable 

litigation practices beyond mere inaction because this is not the type of dilatoriness that is 

contemplated by the rule.  Rather, the trial court's inherent authority to dismiss an action

for want of prosecution remains when the plaintiff has engaged in unacceptable litigation 

                                               2 

No. 85654-1

practices.  Wallace v. Evans, 131 Wn.2d 572, 577, 934 P.2d 662 (1997); Thorp Meats, 

110 Wn.2d at 168-69 (citing Gott v. Woody, 11 Wn. App. 504, 508, 524 P.2d 452 

(1974)).

       Failure to prosecute does not fall within CR 41(b)(1), for example, when the 

plaintiff fails to prosecute the action by failing to appear at trial.  Wallace, 131 Wn.2d at 

578 (citing Wagner v. McDonald, 10 Wn. App. 213, 516 P.2d 1051 (1973)).  Such 

dilatoriness also occurs, for example, when there is a failure to appear at a pretrial 

conference in combination with general dilatoriness.  Id. (citing Link v. Wabash R.R., 370 

U.S. 626, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962)).  These circumstances invoke the trial 

court's inherent authority to dismiss.

       Here, too, the plaintiff engaged in unacceptable litigation practices.  BSA did 

nothing for four years.  During this time BSA tacitly accepted, without objection, the trial 

court's July 5, 2006, stipulation and order for return of exhibits, more than a year after 

the Court of Appeals' mandate.  The failure to correct the trial court's apparent belief that 

the case was over led to the court's destruction of 1,551 trial exhibits.  On May 16, 2008, 

the belief that the case was closed was reinforced when BSA filed a notice of intent to 

withdraw that expressly stated that no trial had been set because the case had been 

dismissed and judgment entered against the plaintiff.  BSA thus affirmatively led

WaferTech and the trial court to believe that the case was at an end -- certainly so far as 

BSA was concerned.  This would not have surprised either the court or WaferTech, given 

that the events occurred long after extensive, lengthy litigation and resolution in the 

                                               3 

No. 85654-1

defendant's favor of all but one of the claims originally asserted.  At some point after 

these events, the trial court's clerk's office closed its file on the case.  Then, on 

January 13, 2009, BSA at last contacted the superior court's office.  BSA noted the 

matter for trial on June 15, 2009.

       Under these circumstances, BSA engaged in unacceptable litigation practices, 

positively communicating to the trial court and WaferTech that it was no longer 

prosecuting the case and then turning around and renewing the prosecution.

       Abuse of Discretion Standard

       When the court's inherent power to dismiss for want of prosecution is at issue the 

trial court's decision is reviewed under the abuse of discretion standard, in contrast to

review of the mandatory directives in CR 41(b)(1).  See Thorp Meats, 110 Wn.2d at 167;

Stickney v. Port of Olympia, 35 Wn.2d 239, 241, 212 P.2d 821 (1950).  A court abuses its 

discretion when its decision is manifestly unreasonable or exercised on untenable grounds 

or for untenable reasons.  In re Guardianship of Lamb, 173 Wn.2d 173, 189, 265 P.3d 

876 (2011).

       In exercising its discretion, it was proper for the trial court to consider both the 

unacceptable litigation practices of BSA and the burdens that restarting the case would 
impose on the court and WaferTech after the lengthy delay.1 These burdens would be

considerable.  WaferTech explained that many key personnel on the litigated project who 

1 While as explained below these are not appropriate considerations under CR 41(b)(1), they are 
proper considerations when the court's inherent discretionary power to dismiss an action is 
involved.
                                               4 

No. 85654-1

were formerly at WaferTech have left the company, some without known whereabouts.  

These include the project manager, the director of facilities, the project estimator, the 

facilities/contract manager, the person responsible for procurement on the project, and the 

senior mechanical engineer for the project.  Several expert witnesses originally retained 

are no longer available, WaferTech advised the court, and most of the team of attorneys 

previously representing WaferTech through the trial are no longer available.

       The trial court noted the burden that would be placed on the court:  "[F]or us to 

resurrect the files in this case is going to be next to impossible. . . . [T]hat creates a 

hardship on both the Court as well as the parties in the case."  Transcript of Proceedings 

(Aug. 26, 2009) at 13.  The court stated:  "You know, this situation . . . epitomizes why 

we have standards in terms of getting cases resolved.  And standards for keeping cases 

going because situations like this arise where all of the original parties, and everything 

else are gone."  Id.

       In light of BSA's unacceptable litigation practices and the burdens that would 

ensue if the case was revived, the trial court properly exercised its inherent power to 

dismiss the case and its doing so did not contravene the strict construction we have placed 

on CR 41(b)(1) in light of the fact that the rule should not be applied here.

       The majority concludes, however, that the plaintiff's practices were not 

unacceptable litigation practices justifying dismissal in the discretion of the trial court.  

Case law demonstrates the contrary is true. As the majority itself says, discretionary 

dismissals have been allowed for failures to appear and filing late briefs.  Majority at 7 

                                               5 

No. 85654-1

(citing Apostolis v. City of Seattle, 101 Wn. App. 300, 305, 3 P.3d 198 (2000)).  Other 

cases where failure to appear justified dismissal in the discretion of the trial court are 

mentioned above.  Wagner, 10 Wn. App. 213; Link, 370 U.S. 626; see also Alexander v. 

Food Servs. of Am., 76 Wn. App. 425, 429-30, 886 P.2d 231 (1994) (failure to appear is a 

failure to prosecute; court may exercise discretion to dismiss).  Although arising in a 

somewhat different context, dismissal was also within the trial court's exercise of sound 

discretion based on failure to comply with an order to post funds required to perfect an 

administrative record for a trial court's review of a land use decision.  Jewell v. City of 

Kirkland, 50 Wn. App. 813, 750 P.2d 1307 (1986).  Jewell is instructive since the court 

explained the crucial importance of complying with the trial court's order in a timely 

manner and the need to "eliminate unnecessary delay" in land use cases.  Id. at 821-22.  

Thus, the plaintiffs failed to prosecute their action in a timely fashion.

       Certainly if dismissals for these types of conduct are within a trial court's inherent 

authority to dismiss, then dismissal in the present case was well within the trial court's 

discretion.

       Majority Improperly Faults WaferTech

       As explained, CR 41(b)(1) does not control this case.  However, even if CR 

41(b)(1) were applicable, the majority improperly construes the rule.  The majority places 

considerable emphasis on WaferTech's failure to respond to the trial court's order 

regarding destruction of the trial exhibits and its failure to move for dismissal of the 

action at an earlier time, since it knew that the case had not been dismissed in its entirety.  

                                               6 

No. 85654-1

Majority at 8-9.  The majority concludes that WaferTech had the obligation to move for 

dismissal if it was concerned that delay would prejudice its case.  Majority at 8.

       Under CR 41(b)(1), the defendant has none of these obligations. In applying the 

rule that want of prosecution mandates dismissal upon motion of the defendant, it makes 

no difference whether the defendant could have taken steps to forward the prosecution of 

the case.  Arthur v. Wash. Water Power Co., 42 Wash. 431, 433, 85 P. 28 (1906). "[T]he 

failure of the defendant to take any steps to bring the cause to trial or hearing is not a 

ground for denial of the defendant's motion to dismiss the cause for want of prosecution 

since the obligation in that respect rests upon plaintiff rather than the defendant." State 

ex rel. Lyle v. Superior Court, 3 Wn.2d 702, 707, 102 P.2d 246 (1940) (predecessor 

version of the rule).  The burden of going forward to escape operation of the rule 

providing for dismissal for want of prosecution always belongs to the plaintiff and not to 

the defendant.  McDowell v. Burke, 57 Wn.2d 794, 796, 359 P.2d (1961) (predecessor 

rule); State ex rel. Wash. Water Power Co. v. Superior Court, 41 Wn.2d 484, 489, 250 

P.2d 536 (1952) (same).  The duty of seeing that diligence is exercised in prosecutions of 

civil actions rests particularly on the plaintiff.  State ex rel. Goodnow v. O'Phelan, 6 

Wn.2d 146, 153, 106 P.2d 1073 (1940) (quoting Arthur, 42 Wash. at 433); see also 

Callahan v. Caldwell, 30 Wn.2d 430, 437, 191 P.2d 708 (1948) ("'a defendant is under 

no obligation to speed the trial, and cannot be charged with neglect if he maintains his 

position on the defensive, and simply meets issues of law or of fact as the plaintiff 

regularly calls them up for hearing'" (quoting State ex rel. Phillips v. Hall, 6 Wn.2d 531, 

                                               7 

No. 85654-1

537, 108 P.2d 339 (1940))).2

       Accordingly, in applying CR 41(b)(1) the majority improperly faults WaferTech

for doing nothing itself to move the case forward and improperly places the burden on 

WaferTech to have moved for dismissal.  CR 41 does not require that a defendant do so 

and this court's cases have long been to the contrary.

       Under CR 41 "'every reasonable opportunity should be afforded to permit the 

parties to reach the merits.'"  Thorp Meats, 110 Wn.2d at 168 (quoting Yellam v. 

Woerner, 77 Wn.2d 604, 608, 464 P.2d 947 (1970) (decided under predecessor rule)); see

Landberg v. State, 36 Wn. App. 675, 676-77, 676 P.2d 1027 (1984).  However, it is not 

reasonable to allow the plaintiff to sit idle for four years, pay no attention to the order 

about exhibits, notify the court and the defendant of its own attorney's intent to withdraw 

on the basis that the action is at an end, and then pick up where it left off and note the 

case for trial after a motion for dismissal.  In the face of this conduct, which as a whole 

constitutes unacceptable litigation practices, the majority unfortunately applies CR 

41(b)(1) so as to afford BSA an unreasonable opportunity to breathe new life into its old 

case.

2 Moreover, in applying a rule governing mandatory dismissal for want of prosecution, "the court 
cannot consider the merits of the case nor the hardship which its application may bring."  State ex 
rel. Wash. Water Power Co., 41 Wn.2d at 489 (predecessor rule); accord Thorp Meats, 110 
Wn.2d at 167 (CR 41(b)(1)); State ex rel. Lyle, 3 Wn.2d at 706 (predecessor rule).  "[G]ood faith 
and honest intentions . . . are immaterial to the result required by rule . . . unless the failure to 
bring it on was caused by the party seeking dismissal."  State ex rel. Woodworth & Cornell v. 
Superior Court, 9 Wn.2d 37, 42, 113 P.2d 527 (1941) (predecessor rule).
                                               8 

No. 85654-1

                                          Conclusion

       I would hold that this case does not come within the ambit of CR 41(b)(1).  

Instead, because the plaintiff engaged in unacceptable litigation practices the rule does 

not control.  Accordingly, the trial court's decision was an exercise of its inherent power 

to dismiss for want of prosecution, reviewable under the abuse of discretion standard.  

Under this standard, the court acted within its sound discretion and properly dismissed 

the action.

       I would reverse the Court of Appeals and reinstate the trial court's order 

dismissing this case.

AUTHOR:
        Chief Justice Barbara A. Madsen

WE CONCUR:

        Justice Charles W. Johnson

                                               9