This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Karen Hiller,


Keith Volkman, et al.,


Filed July 17, 2001

Reversed and remanded
Klaphake, Judge


Watonwan County District Court

File No. C6000108


Kenneth R. White, Farrish, Johnson Law Office, PLLP, Suite 107, 201 North Broad Street, Box 550, Mankato, MN 56002-0550 (for appellant)


Mark A. Pilney, Judith Mlinar Seeberger, Reding & Pilney, Suite 140, 600 Inwood Avenue North, Oakdale, MN 55128 (for respondent)


            Considered and decided by Klaphake, Presiding Judge, Crippen, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N


            On January 14, 2000, appellant Karen Hiller brought a wrongful-death action against respondents Keith Volkman and his employer Volkman Electric (owned by Keith Volkman’s father, Ray Volkman), alleging that Keith Volkman’s negligent electrical wiring caused the electrocution death of her husband, Gene Hiller.  Hiller’s complaint asserted that Volkman Electric was liable for Keith Volkman’s negligence because (1) Keith Volkman’s negligent conduct fell within the scope of his employment with Volkman Electric; (2) Keith Volkman acted with apparent authority from Volkman Electric; and (3) Volkman Electric negligently supervised Keith Volkman. 

            On March 21, 2000, Volkman Electric filed a motion for summary judgment.  On April 18, Hiller sought to extend discovery.  Following a hearing on May 2, the district court granted summary judgment to Volkman Electric, but did not address Hiller’s motion to extend discovery. 

            Because Volkman Electric moved for summary judgment only two months after Hiller commenced this action and because Volkman Electric failed to provide timely and complete interrogatory answers before moving for summary judgment, we conclude that the district court prematurely granted summary judgment and reverse.  On remand, we direct the district court to grant Hiller’s request to extend discovery.


The district court has considerable discretion in determining whether to extend discovery.   Rice v. Perl, 320 N.W.2d 407, 412 (Minn. 1982); see Cherne Contracting Corp. v. Wausau Ins. Cos., 572 N.W.2d 339, 346 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998) (district court’s refusal to grant continuance for further discovery will not be overturned absent abuse of discretion).  This discretion is not unlimited, however, and there is a presumption in favor of granting continuances for discovery.  See Rice, 320 N.W.2d at 412 (“While it is true that the trial judge has great discretion to determine the procedural calendar of a case, * * * [discovery] continuances should be liberally granted.”).  Continuances are particularly appropriate where a party claims insufficient time to conduct discovery.  Id.  In light of the presumption in favor of granting continuances, we make two inquiries:  (1) whether Hiller was diligent in seeking discovery prior to consideration of Volkman Electric’s summary judgment motion; and (2) whether Hiller based her request for further discovery on a good-faith belief that material facts would be uncovered, or whether the exercise is merely a “fishing expedition.”  See id.

Addressing the first question, Hiller claims that she diligently pursued discovery before the district court considered Volkman Electric’s summary judgment motion.  Hiller commenced her action on January 14, 2000.  The district court failed to set a schedule for discovery and on February 3, Hiller served discovery on Volkman Electric.  Volkman Electric moved for summary judgment on March 21, even though it had not responded to Hiller’s discovery, and neither party had taken any depositions.  On March 27, Hiller notified Volkman Electric that it was nearly three weeks late in responding to discovery.  See Minn. R. Civ. P. 33.01(b) (establishing 30 days to answer interrogatories).  Volkman Electric responded with complete, but unsigned, interrogatory answers on April 4.  On April 18, Hiller brought a motion to extend discovery and a motion to compel complete discovery responses.[1]  The following day, Volkman Electric provided a signature page bearing Ray Volkman’s signature, but no attorney signature.  See Minn. R. Civ. P. 11.01 (indicating attorney signature required).  Finally, on April 27, Volkman Electric delivered fully-executed signature pages.  The district court heard Volkman Electric’s motion for summary judgment three days later, on May 2.

Under these facts, Hiller exercised a sufficient degree of diligence in seeking discovery.  Volkman Electric moved for summary judgment only two months after Hiller commenced her lawsuit, and Volkman Electric failed to answer Hiller’s interrogatories before moving for summary judgment.  Moreover, no depositions had been taken at the time of Volkman Electric’s summary judgment motion, and the district court never set a schedule for discovery.  Hiller also brought her motion to extend discovery before the district court heard the motion on summary judgment.  See Rice, 320 N.W.2d at 412 (discovery continuances favored even where one party has moved for summary judgment).  Given the short amount of time between the commencement of the lawsuit and Volkman Electric’s summary judgment motion, Hiller was diligent in her discovery efforts.

Volkman Electric argues that Hiller failed to diligently seek discovery because her pre-lawsuit investigation fell short of the requirements under rule 11.  See Minn. R. Civ. P. 11.02(c) (attorney signature certifies that “after an inquiry reasonable under the circumstances,” party’s allegations have “evidentiary support or * * * are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery”).  Volkman Electric asserts that because its insurer notified Hiller in August 1999 that it believed she did not have sufficient factual support for her claim, Hiller was dilatory in her discovery efforts by failing to fully investigate her claim before bringing her lawsuit.  See Miller-Lagro v. Northern States Power Co., 566 N.W.2d 94, 96 (Minn. App. 1997) (“[A] party’s desire to conduct discovery that could have been conducted earlier is insufficient justification for a continuance” (citation omitted)), aff’d in part, rev’d in part, and remanded on other grounds, 582 N.W.2d 550 (Minn. 1998). 

            Contrary to Volkman Electric’s assertion, however, Hiller’s claim is not devoid of evidentiary support, and rule 11 specifically contemplates claims based on evidence likely to be found after a reasonable opportunity for discovery.  Here, Hiller seeks only a reasonable opportunity to perform such discovery, and nothing about her claim runs afoul of rule 11.  Moreover, Volkman Electric focuses on Hiller’s pre-discovery investigation.  See Rice, 320 N.W.2d at 412-13 (focusing on party’s diligence during discovery phase, with no mention of time prior to commencement of lawsuit).  We conclude that Hiller diligently sought discovery during the limited period of time before the summary judgment hearing.

Moving to the next question, Volkman Electric argues that Hiller’s request to extend discovery constitutes a “fishing expedition.”  “[A] court should be quite strict in refusing [discovery] continuances where the party merely expresses a hope or a desire to engage in a fishing expedition * * *.”  Rice, 320 N.W.2d at 412(citation omitted).  Volkman Electric contends that its electricians perform electrical work for the company only through a strict service protocol, which prohibits their personnel from initiating a job unless a company truck is present at the site, and any job request “comes in through the shop” and is documented in a phone log.  Hiller, however, claims knowledge that Volkman Electric and its personnel did not always follow this service procedure, and that in fact it was routinely ignored.  In her affidavit, Hiller alleges that Keith Volkman had performed prior wiring on weekends and evenings for them using Volkman Electric tools and a company truck.  Hiller argues that facts regarding deviations from Volkman Electric’s service protocol rest exclusively with Ray Volkman, Keith Volkman, and other Volkman Electric personnel. 

            “Sufficient time for discovery is considered especially important when the relevant facts are exclusively in the control of the opposing party * * *.”  Id. (quotation omitted).  Here, the facts relevant to whether Volkman Electric deviated from its service protocol rest solely in the control of Volkman Electric and its personnel, including Keith Volkman, and discovery on this issue may likely reveal material facts.  See, e.g., Bixler by Bixler v. J.C. Penney Co., 376 N.W.2d 209, 217 (Minn. 1985) (additional discovery should be permitted where further discovery likely to reveal relevant material facts and appellant was diligent in light of complex and confusing procedural occurrences).  Rice and Bixler create a presumption in favor of granting discovery motions when the moving party brings the motion in good faith, has been diligent, and the opposing party controls the material sought.  These presumption-triggering criteria are present in the case before us; Hiller based her motion to extend discovery on a good faith belief that further discovery will reveal relevant facts exclusively in Volkman Electric’s control, and, as previously discussed, Hiller was diligent in her discovery efforts.  The district court should have afforded Hiller the opportunity to depose witnesses on the issue of Volkman Electric’s possible deviation from its service procedure, as well as whether or not Keith Volkman believed that the Hillers were under the impression that he was acting in his capacity as an employee for Volkman Electric. 

In conclusion, given (1) the short time between commencement of the suit and the summary judgment hearing; (2) Volkman Electric’s failure to provide timely and fully signed responses to Hiller’s interrogatory requests before moving for summary judgment; and (3) the district court’s failure to explain its decision, we hold that the district court abused its discretion by refusing to grant Hiller a continuance to conduct additional discovery.  See Rice, 320 N.W.2d at 412 (“A continuance or permission to engage in further discovery should not be denied to a party except in the most extreme circumstances.”) (quoting 10 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2741, at 733-34 (1973)).  The district court prematurely granted summary judgment, and we reverse and remand the district court’s denial of Hiller’s motion to extend discovery.  Our decision, however, does not preclude another summary judgment motion after discovery is completed.

Reversed and remanded.

[1] Hiller concedes that the motion to compel complete discovery responses was resolved by the date of the summary judgment hearing.