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Modrow v. JP Foodservice

February 13, 2003



Calling a case for trial is not a prerequisite to dismissing the case under Minn. R. Civ. P. 41.02(a) for failure to prosecute; it is one of multiple factors to be considered when applying the two-prong test of prejudice and unreasonable and inexcusable delay.

The district court abused its discretion when it dismissed respondent's case under Minn. R. Civ. P. 41.02(a) for failure to prosecute.

Affirmed in part, reversed in part, and remanded.

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

The opinion of the court was delivered by: 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, ...

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