The Peipers contend that prejudice may be presumed to exist when there is an unexcused and unreasonable delay. See Nagel v. Wagers, 111 Idaho 822, 824, 727 P.2d 1250, 1252 (Ct.App. 1986). In Nagel, the Court of Appeals upheld the dismissal of a personal injury action in which no significant activity had taken place for approximately nineteen months.
This rule imposes upon a plaintiff an affirmative duty to seek prompt adjudication of the claim. Nagel v. Wagers, 111 Idaho 822, 727 P.2d 1250 (Ct.App. 1986). The guidelines employed by the district court under a Rule 41(b) motion entail a consideration of: (1) the length of delay occasioned by the failure to prosecute; (2) the justification, if any, for such delay; and the resultant prejudice of the delay.
Thus, given the fact of revived activity, we must address whether the trial court abused its discretion by granting dismissal without requiring the defendant to establish prejudice resulting from the delay. The trial court noted that prejudice may be presumed to flow from "unexcused and unreasonable delay" citing Nagel v. Wagers, 111 Idaho 822, 727 P.2d 1250 (Ct.App. 1986) and Rudy-Mai v. Peterson, 109 Idaho 116, 705 P.2d 1071 (Ct.App. 1985). Although recognizing that plaintiffs argued that the defendants had not established the delay as being either unexcused or unreasonable, the trial court found:
WWP asserts correctly that prejudice may be presumed to flow from "unexcused and unreasonable delay." Ellis v. Twin Falls Canal Company, 109 Idaho 910, 712 P.2d 611 (1985) (citing federal cases dealing with the identical F.R.C.P. 41(b)); Rudy-Mai Farms v. Peterson, supra; Nagle v. Wagers, 111 Idaho 822, 727 P.2d 1250 (Ct.App. 1986). Here, the district court found that the delay of ten months was unreasonable.
The other case is of more recent vintage and was decided by our Court. In Nagel v. Wagers, 111 Idaho 822, 727 P.2d 1250 (Ct.App. 1986), we held that a district judge did not abuse his discretion in dismissing an action for failure to prosecute under factual circumstances remarkably similar in several respects to those presented here. In both cases, the delay in issuing the summons was nineteen months, and in both cases the defendants had been made aware of the possibility of a lawsuit.
Balancing these factors is a discretionary function and the trial judge's ruling will not be overturned on appeal unless discretion has been abused. Nagel v. Wagers, 111 Idaho 822, 727 P.2d 1250 (Ct.App. 1986). See also Werner Piano Co., supra.
Nor is it a case where grossly excessive delay has generated a presumption of prejudice to the opposing party. Cf. Nagel v. Wagers, 111 Idaho 822, 727 P.2d 1250 (Ct.App. 1986) (lack of prosecution for nineteen months justified dismissal of action under I.R.C.P. 41(b)). To the contrary, the corporation here acted promptly.