Modrow v. JP Foodservice, Inc.

• Decision Date: 13 February 2003
• Docket Number: No. C3-01-900.,C3-01-900.
• Citation: 656 N.W.2d 389
• Parties: Catherine MODROW, Respondent, v. JP FOODSERVICE, INC., Petitioner, Appellant.
• Court: Minnesota Supreme Court

656 N.W.2d 389

Catherine MODROW, Respondent, v. JP FOODSERVICE, INC., Petitioner, Appellant.

No. C3-01-900.

Supreme Court of Minnesota.

February 13, 2003.

John W. Polley, Angela M. Crandall, Faegre & Benson LLP, Minneapolis, MN, for Appellant.

Eric J. Braaten, Gena A. Braaten, Nicklaus, Braaten & Hollenhorst, PLLC, Chaska, MN, for Respondent.

Heard, considered, and decided by the court en banc.

OPINION

ANDERSON, PAUL H., Justice.

Respondent Catherine Modrow commenced this action in June 1995 by serving her complaint for discrimination and sexual harassment on her former employer, appellant JP Foodservice, Inc. More than four years later, she filed the complaint with the Hennepin County District Court. Shortly thereafter, the court issued its scheduling order. After the deadline for discovery established in the order had passed, JP moved to dismiss Modrow's action for failure to prosecute. The court granted JP's motion and dismissed the action, finding that there had been inexcusable delay resulting in severe prejudice to JP. The Minnesota Court of Appeals reversed, holding that the action could not be dismissed for failure to prosecute because it had not been called for trial. We affirm the court of appeals' holding that the district court erred when it dismissed Modrow's action, but do so on other grounds.

In September 1992, Marvin Christen, Vice President of JP, a food service distributor, hired Modrow to work as a selector. As a selector, Modrow was responsible for selecting food packages out of freezer inventory and loading them onto pallets to be delivered to JP's clients. Approximately three months after being hired as a selector, Modrow was transferred to a janitorial position at the same rate of pay. Modrow contends that while employed at JP she was subjected to continuous, management-sanctioned discrimination and sexual harassment. She claims that she complained a number of times to Christen, to someone in human resources, and eventually to JP's President, but that nothing changed as a result of her complaints.

On June 23, 1993, Modrow apparently attempted suicide and was admitted to the Willmar Regional Treatment Center for depression. Modrow maintains that her depression was the result of her hostile work environment and that her doctors advised her not to return to work. JP asserts that Modrow has a history of depression and her hospitalization was simply a part of that history. Patient records indicate that Modrow's illness continued up through the time she filed her action with the court. She has cited her illness during that period of time as a reason for her delay in actively pursuing her claim.

On August 10, 1993, Modrow filed a claim with the Equal Employment Opportunity Commission (EEOC). Almost two years later, on June 8, 1995, the EEOC terminated its investigation into Modrow's claim and issued her a right to sue letter. The EEOC has since destroyed its files on this claim.

The parties agree that in June 1995, Modrow properly served JP with a summons and complaint, and then served an amended complaint the next month. The complaint included allegations of human rights violations, tortious battery, intentional and negligent infliction of emotional distress, wage discrimination, negligence, and negligent termination of insurance coverage. Over four years later, in November 1999, Modrow filed her summons and complaint with the Hennepin County District Court. The record is unclear as to what discovery Modrow conducted after commencing the action and before filing it with the court. She claims to have issued a request for production of documents, to which she never received a response. To contradict this claim, JP submitted an unnotarized statement in the form of an affidavit from JP's counsel stating that Modrow had initiated no discovery since she began the lawsuit. The district court found that Modrow had conducted no discovery. On the other hand, it is undisputed that in February 1998, JP served Modrow with interrogatories and a request for production of documents. Eleven months later, in January 1999, JP received completed responses to these discovery requests.

On January 11, 2000, Modrow filed an informational statement. Though counsel for JP claimed during oral arguments that it too had filed an informational statement, there is no record of that having happened. On January 25, 2000, the district court issued a scheduling order, with different deadlines than those proposed by Modrow in her informational statement. In its order, the court required that the parties complete discovery and file dispositive motions by June 30, 2000. The court also set the trial date for the first week of October 2000.

After the final discovery date passed without any discovery requests from Modrow, JP filed a motion to dismiss for failure to prosecute. A hearing on the motion was held on August 29, 2000. The district court found that the seven-year delay, dating from the time Modrow filed her EEOC complaint, had "caused extreme prejudice" to JP because eight material witnesses had become unavailable, including Christen who was in the severe stages of Alzheimer's Disease. Further, the court found that Modrow had engaged in no significant discovery during that seven-year period, that her depression predated her employment at JP, and that her assertion that she was advised by her doctors not to pursue her claim constituted inadmissible hearsay. On November 22, 2000, the court dismissed Modrow's claim, finding that (1) JP was prejudiced by Modrow's delay in pursuing her claim, and (2) the delay was unreasonable.

Modrow appealed the dismissal, and the court of appeals reversed and remanded stating, "the district court abused its discretion in dismissing appellant's action for failure to prosecute without ordering the parties to proceed to trial." Modrow v. JP Foodservice, Inc., No. C3-01-900, 2001 WL 1609118, at *2 (Minn.App. Dec.18, 2001) (emphasis added). We affirm the court of appeals, but do so on other grounds.

I.

The first issue we must decide is whether the court of appeals applied the appropriate legal standard for evaluating a dismissal for failure to prosecute under Minn. R. Civ. P. 41.02(a). When the lower court's decision to dismiss involves the interpretation of a procedural rule, the appropriate standard of review is de novo. Jostens, Inc. v. Fed. Mut. Ins. Co., 612 N.W.2d 878, 883 (Minn.2000). No deference is given to a lower court on questions of law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn.1984). Therefore, determining whether the court of appeals applied the correct legal standard when deciding whether the district court properly dismissed Modrow's action for failure to prosecute is a question of law which we review de novo.

Minnesota Rules of Civil Procedure 41.02(a) provides that a district court may "upon its own initiative, or upon motion of a party, and upon such notice as it may prescribe, dismiss an action or claim for failure to prosecute or to comply with these rules or any order of the court." In determining whether to dismiss Modrow's claim under this rule, the district court applied a two-prong test of prejudice and unreasonable and inexcusable delay. This test can be traced to our decision in Firoved v. General Motors Corp., in which we stated that the "primary factor to be considered" is prejudice, and "the factors of the amount of delay and the reasons therefor must be considered." 277 Minn. 278, 283-84, 152 N.W.2d 364, 368-69 (1967). We later simplified the Firoved test into the two-prong version of the test most commonly cited today:

Before an action should be dismissed for failure to prosecute, it must be shown: (1) that the delay prejudiced the defendant, and (2) that the delay was unreasonable and inexcusable.

Scherer v. Hanson, 270 N.W.2d 23, 24 (Minn.1978). Finally, in Bonhiver, we made the two-prong test the exclusive method of evaluating dismissals for failure to prosecute, stating such dismissals are "appropriate only when" the two Scherer elements are met. Bonhiver v. Fugelso, Porter, Simich and Whiteman, Inc., 355 N.W.2d 138, 144 (Minn.1984).

In reversing the district court's dismissal for failure to prosecute, the court of appeals stated that such dismissals are appropriate only after the case has been called for trial. The called-for-trial requirement is derived from Nyberg v. Cambridge State Bank, in which we reversed a district court's dismissal with prejudice. 245 Minn. 312, 315-16, 72 N.W.2d 345, 348 (1955). In Nyberg, we evaluated the propriety of the dismissal in light of the court's discretion under Minn.Stat. § 546.07 (2002)¹, which describes the order in which issues on the calendar should be heard. Nyberg, 245 Minn. at 316, 72 N.W.2d at 347. We concluded that language in section 546.07 "presupposes that a case will be called for trial," so the court has no discretion to dismiss the claim for failure to appear at the call of the calendar because the case has not yet been called for trial. 245 Minn. at 316, 72 N.W.2d at 347-48. We later turned this language into a "general rule" that "a case may not be dismissed for want of prosecution until it has been called for trial." Breza v. Schmitz, 305 Minn. 537, 538, 233 N.W.2d 559, 560 (1975). We granted review of this case to determine whether this general rule is appropriate in light of the scheduling procedures enacted in 1991 as part of the General Rules of Practice.

Under the previous Minnesota Rule of Civil Procedure 38.03, a case could be filed with the district court but lay dormant until a party filed a note of issue, at which time the court could schedule the case for trial. Minn. R. Civ. P. 38.03 (1991). This procedure often created a backlog of filed but dormant cases. We attempted to solve this problem by repealing Minn. R. Civ. P. 38.03 and enacting Minnesota General Rule of Practice 111. Under Rule 111, the process of setting a trial...