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O P I N I O N
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    This appeal arises from an Order Dismissing Civil Complaint issued by The Honorable Barry C. Bighorn, on October 5, 1998. Mary L. Zemyan, Esq., Wolf Point, MT appearing on behalf on plaintiff/appellant. Marvin Youpee Sr., defendant/appellee, pro se.

    On June 15, 1998 appellant Shannon Hopkins (hereafter Shannon) filed a complaint in Tribal Court alleging that defendant Marvin Youpee (hereafter Marvin) either converted or destroyed clothing, jewelry and various personal items totaling $18,411 which had been awarded to plaintiff in a divorce proceeding with defendant. On July 2, 1998, Marvin filed his answer, generally denying all of the allegations. A hearing pursuant to CCOJ, Title IV, §103¹ was held on July 20, 1998. At that hearing, Marvin made an oral Motion to Dismiss, citing several grounds. The Court, in its July 22, 1998 written order, set forth a briefing schedule wherein Marvin's brief in support of his motions to dismiss was due at Noon, August 4, 1998, Shannon's brief was due at Noon, August 18, 1998. The order further allowed for Marvin to file a reply brief at Noon, August 25, 1998. A hearing was scheduled for August 31, 1998 at 1:00 p.m., with the Section 103 hearing continued until after the ruling on the Motion to Dismiss.

    Marvin filed his timely brief at 11:32 a.m. on August 4, 1998. Shannon's attorney filed her brief at 3:59 p.m. on August 18, 1998. Marvin filed a reply brief on August 25, 1998, and on the same date, he also filed a new Motion to Dismiss, citing as grounds, Shannon's belated filing of 3 hours and 59 minutes on August 18th.

    At the August 31, 1998 hearing, the Court ordered a briefing schedule on the new Motion to Dismiss and both parties filed their briefs in a timely fashion.

    On October 5, 1998, the Court issued its Order Dismissing Civil Complaint for Shannon's failure to file a timely brief, citing the Fort Peck Tribal Court Rules of Civil Procedure as establishing the standard for timeliness. It is from this order that Shannon seeks our review.

    Shannon urges that this is an issue of first impression in this Court and that it may very well be an issue of first impression in any Court. For the reasons discussed below, we reverse the Tribal Court's Order Dismissing Civil Complaint.

    In all of our research of cases in both State and Federal Courts it is consistently recognized that the dismissal of a case with prejudice is a drastic remedy to be used only in those situations where a lesser sanction would not better serve the interests of justice. We found the following language quite common and persuasive:

"'The sanction of dismissal is the most severe sanction that a court may apply, and its use must be tempered by a careful exercise of judicial discretion.' [Case cited] The decided cases, while noting that a dismissal [with prejudice] is a discretionary matter, have generally permitted it only in the face of a clear record of delay or contumacious conduct by the plaintiff." Durham v. Florida East Coast Railway Company, 5th Cir. 1967, 385 F.2d 366, 368.

    In an employment discrimination case filed pursuant to Title VII of the Civil Rights Act of 1964, a plaintiff's attorney was instructed by the Court to file a pre-trial order one week before trial and jury instructions three days before trial. The attorney failed on both counts and the trial court dismissed. In reversing the dismissal, the Fifth Circuit Court of Appeals stated:

"A dismissal with prejudice is a drastic sanction which may affect substantial rights of the litigant and is to be used only in extreme situations, Flaksa v. Little River Marine Construction Co., supra, 389 F.2d at 887, where there is "a clear record of delay or contumacious conduct by the plaintiff," Durham v. Florida East Coast Railway Co., 5 Cir. 1967, 385 F.2d 366, and where lesser sanctions would not serve the best interests of justice. (citation omitted) We do not find these extreme circumstances in this case. Pond was not a participant in the fault, and the conduct of counsel was no more than inadvertence. This is not to say that the trial court may not impose such lesser sanctions as it may find appropriate against counsel, see Woodham v. American Cystoscope Co., 5 Cir. 1964, 335 F.2d 551" Pond v. Branniff Airways, 453 F.2d 347, 349.

    In its Order, the Tribal Court cited Rule 7-1 and Rule 7-2 as establishing the standard as to the question of timeliness². We note the following language in Rule 7-1:

    We assume that the Tribal Court in stating that this rule, in part, 'established the standard as to the question of timeliness', interpreted the language of this rule to mean that any untimely failure to file a brief constituted a total failure to file a brief. Thus, if an extension is not sought and obtained, pursuant to Rule 7-2, there is no remedy and thus, no relief for the errant party. In other words, when the Court gave Shannon an opportunity to respond to Marvin's newest motion to dismiss for failure to file a timely brief, she failed to show that she had filed her brief timely and the Court felt compelled to dismiss the complaint, stating, "Addressing the current question of timeliness, the Court has established its standard through Rules 7-1 and 7-2. Therefore, the Court shall adhere to this standard, and hereby dismisses this Civil Complaint."

    Whether our assumption of the Tribal Court's interpretation is correct or not, we must respectfully disagree with its ruling to dismiss the complaint. First, we note that the language of Rule 7-1 allowing for a summary ruling is permissive, not mandatory ("Failure to file briefs within the prescribed time may subject any motion to summary ruling.) Secondly, even though there is mandatory language regarding conclusions that are triggered by a party's failure to file a brief (e.g. Failure to file a brief by the moving party shall be deemed an admission that, in the opinion of the counsel, the motion is without merit, and, failure to file a brief by the adverse party shall be deemed an admission that, in the opinion of counsel, the motion is well taken) we do not believe that the ultimate sanction of dismissal is necessarily warranted for such failure. When dealing with the matter summarily, the Tribal Court is not required to impose the ultimate sanction, but rather, may, in its discretion impose whatever sanction is warranted by the particular situation. It is our firm belief that the Tribal Court has broad discretion regarding the imposition of sanctions. Therefore, there is no question that the Tribal Court had the authority to dismiss a complaint. The pertinent question is, "In dismissing the complaint, did the Tribal Court 'step over the line' in exercising that authority."

    In the case before us it would appear that Shannon's only fault was her attorney's filing of a brief 3 hours 59 minutes late. The record is completely devoid of any contumacious behavior, nor is there a showing of any consistent negligence or dereliction on the part of Shannon or her attorney. Neither Shannon, nor her counsel, have been guilty of any conduct that would justify the imposition of the severe sanction of a dismissal with prejudice. While we in no way condone any violation or disregard of our Tribal Courts' orders, neither do we believe that an errant finger should render the body dead.

    To uphold and preserve the strong public policy that all parties are entitled to 'their day in Court', there must be a balancing of interests and the preservation of the cause of action of plaintiffs, if any they have. Such presumptive preservation outweighs any inconvenience occasioned to the defendant. Indeed, in any dispute, the very best resolution for all of the parties is to have the matter fully heard and decided on the merits.

    It is often said that an abuse of discretion occurs when a Court 'exceeds the bounds of reason'. We believe that our Tribal Court in dismissing Shannon's complaint did just that. Accordingly, we reverse the Order Dismissing Civil Complaint and remand to the Tribal Court for further proceedings consistent with this opinion.

BY THE COURT OF APPEALS:

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Gary P. Sullivan
Chief Justice

CONCUR:

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Gary M. Beaudry
Associate Justice