This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Peter Rickmyer,





Merry Maker Sales, Inc., et al.,



Veronica Wright,



Carol Hurley,



Filed July 25, 2000


Kalitowski, Judge


Hennepin County District Court

File No. AC995529


Peter Rickmyer, 2118 25th Avenue North, Minneapolis, MN 55411 (pro se appellant)


Jon M. Arntson, Arntson & Stewart, P.C., P.O. Box 789, Fargo, ND 58107 (for respondent Merry Maker Sales, et al.)


            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Peter Rickmyer brought suit for breach of contract claiming he ordered and paid for Tupperware he never actually received.  In this appeal Rickmyer contends the district court erred in (1) extending the deadline for dispositive motions and hearing an untimely summary judgment motion; (2) granting summary judgment to respondents after concluding as a matter of law that they did not breach their contract; and (3) dismissing his claims against respondents who failed to appear.  We affirm.



            Appellant Peter Rickmyer contends the district court erred in hearing a summary judgment motion made by respondent Merry Maker Sales, Inc., after the deadline for dispositive motions.  A district court’s decision to modify a pretrial order is reviewed under an abuse of discretion standard.  See Cortroneo v. Pilney, 343 N.W.2d 645, 648 (Minn. 1984).  To determine if a pretrial order should be modified, the court considers (1) the degree of prejudice to the party seeking the modification; (2) the degree of prejudice to the party opposing the modification; (3) the impact of a modification at that stage of the proceedings; and (4) the degree of willfulness, bad faith, or inexcusable neglect by the party seeking the modification.  Id. at 649.

            Here, Merry Maker made its summary judgment motion approximately one month after the deadline for dispositive motions.  Respondents argue that the district court’s decision to hear the motion was within the court’s discretion.  We agree.  Respondent Merry Maker would have been prejudiced by a failure to modify the scheduling order because disposition by summary judgment greatly reduced the time and expense involved in resolving this dispute over Tupperware costing less than $300.  Moreover, any prejudice to Rickmyer was minimal because he had an opportunity to respond to the motion and he did not indicate he intended to introduce any additional evidence.  The only allegations of bad faith are Rickmyer’s claim that the order was modified as a result of ex parte contacts.  But the district court unequivocally informed Rickmyer that no ex parte conversations occurred.  Under these circumstances, the district court did not abuse its discretion in hearing the summary judgment motion.


            On appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact; and (2) whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  We may affirm summary judgment on alternative grounds.  Winkler v. Magnuson, 539 N.W.2d 821, 827 (Minn. App. 1995), review denied (Minn. Feb. 13, 1996).

Respondent Veronica Wright hosted a Tupperware party in May 1997.  Appellant Peter Rickmyer ordered Tupperware from Wright and paid her by check.  The order was submitted to respondent Merry Maker Sales, Inc., who delivered the Tupperware to respondent Carol Hurley, Wright’s mother.  Wright stated that she and Hurley put the Tupperware in a box and left the box on Rickmyer’s porch.  Rickmyer did not place an affidavit or any other evidence on record that the Tupperware was not left on his porch but he did assert that he never actually received the Tupperware.

Rickmyer asserts he is entitled to prevail as a matter of law because of his claim that he never actually received his Tupperware.  We disagree.  Wright, as the hostess of the Tupperware party and recipient of the shipment from Merry Maker, was required to tender delivery of the goods to Rickmyer.  Rickmyer is not entitled to prevail merely by claiming he did not receive the goods.  Risk of loss is allocated by statute.  See Minn. Stat. § 336.2-509 (1998).  And here the risk of loss was on Rickmyer once Wright and Hurley tendered delivery.  See id. at 336.2-509(3) (allocating risk to buyer after tender of delivery by non-merchant seller).

            Rickmyer asserts that the goods were not delivered within a reasonable time.  We disagree.  Rickmyer mistakenly equates “tender of delivery” of goods with “receipt” of goods.  Compare Minn. Stat. § 336.2-503(1) (1998) (stating “tender of delivery” requires seller to put and hold conforming goods at buyer’s disposition) with Minn. Stat. § 336.2-103(c) (1998) (defining “receipt” as taking physical possession of goods).  Here, Hurley and Wright tendered delivery within a reasonable time by placing the goods on Rickmyer’s porch within a few months of Rickmyer’s order.  Finally, Rickmyer argues that Merry Maker was obligated to ship the goods directly to him.  But this is contrary to affidavits by Merry Maker employees stating that Hurley’s address was designated as the shipping address.



Appellant argues he was entitled to default judgment against Hurley and Wright because they failed to appear.  We disagree.  First, we note that the district court concluded that respondents did not breach the contract.  In addition, a party claiming to be entitled to a default judgment must apply to the court for a default judgment.  Minn. R. Civ. P. 55.01(b); see also Minn. R. Gen. Pract. 117.02.  Because nothing in the district court record indicates that Rickmyer even requested a default judgment, we cannot say the district court erred by failing to grant default judgment.