This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-01-740

 

Jane Riedinger,

Appellant,

 

vs.

 

CIBA-GEIGY Corporation,

Respondent.

 

Filed October 30, 2001

Reversed and remanded

Toussaint, Chief Judge

 

Dakota County District Court

File No. C0998007

 

Gary L. Manka, Heidi J.K. Fessler, Katz & Manka, Ltd., 4150 U.S. Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for appellant)

 

Lawrence J. Hayes, Knutson, Flynn & Deans, 1155 Centre Pointe Drive, Suite 10, Mendota Heights, MN 55120 (for respondent)

 

†††††††††† Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Amundson, Judge.

U N P U B L I S H E D† O P I N I O N

 

TOUSSAINT, Chief Judge

 

This is an appeal from a district court decision dismissing appellantís underinsured motorist arbitration claim with prejudice, finding that appellant had abandoned her claim, that her actions were unreasonable and inexcusable, and that respondent had suffered severe prejudice due to the delay.† Because we conclude there was neither abandonment nor prejudice, we reverse and remand.

D E C I S I O N

 

††††††††††† Dismissal under Minn. R. Civ. P. 41.02 is within the sound discretion of the district court, and a reviewing court will reverse only where there has been an abuse of discretion.† Bonhiver v. Fugelso, Porter, Simich & Whiteman, Inc., 355 N.W.2d 138, 144 (Minn. 1984).† Because a district court must balance disposal of a case on its merits with enforcement of calendar rules to prevent unnecessary and inexcusable delays and to keep dockets free of stale claims, see Lampert Lumber Co. v. Joyce, 405 N.W.2d 423, 425 (Minn. 1987), dismissal with prejudice is appropriate only when the delay prejudiced the defendants and the delay was unreasonable and inexcusable.† Bonhiver, 355 N.W.2d at 144.

††††††††††† Respondent argues delay was caused by appellantís failure to attend scheduled depositions and examinations.† Appellant has had several different addresses over the life of this action and has not always kept her counsel abreast of her location.† Consequently, she claims to have never received notices from her counsel regarding scheduled depositions and medical examinations.† At oral argument on appeal, however, her counsel conceded that his office lost track of appellant, and he was at fault for her failure to appear.† If the attorney for the delinquent party is the root cause of the delay, dismissal is inappropriate.† Moore v. St. Louis Music Supply Co., 539 F.2d 1191, 1193 (8th Cir. 1976); cf. Ryan v. Ballentine VFW Post No. 246, 407 N.W.2d 105, 109 (Minn. App. 1987) (court specifically noted that appellantís counsel was not to blame for delay which justified dismissal).††

††††††††††† †Even if the delay were inexcusable, we conclude that the respondent has not shown prejudice.† Respondent claims costs of $2,800 for the missed examinations and attorneys fees for the motions and this appeal.† Otherwise, respondent generally contends that memories are fading.† Prejudice is a primary factor justifying dismissal and should not be presumed or inferred from the mere fact of delay.† Ed H. Anderson Co. v. A.P.I., Inc., 411 N.W.2d 254, 256 (Minn. App. 1987), review denied (Minn. Oct. 30, 1987).† Harm that can be adequately compensated in ways other than dismissal will not support a dismissal with prejudice.† Firoved v. General Motors Corp., 277 Minn. 278, 152 N.W.2d 364 (1967).† Respondent does not state with any particularity what evidence has gone stale or what negative impact an independent medical examination at this stage will have on the case.† We conclude that respondent failed to establish the existence of harm beyond the costs of ordinary litigation.† The district court, therefore, should impose sanctions other than dismissal with prejudice.

Because appellantís delay cannot be said to be inexcusable and respondentís prejudice cannot be said to be severe, appellant should not be denied her opportunity to arbitrate her claim.† Therefore, the district courtís decision to dismiss with prejudice is reversed with instructions to impose appropriate fees and sanctions to ensure cooperation and prompt resolution of the case.

Appellant argued in his brief, but did not argue at the appellate hearing, that the district court lacked subject matter jurisdiction.† The parties agree that Johnson v. American Family Mut. Ins. Co., 426 N.W.2d 419, 421 (Minn. 1988), requires that in no fault litigation, arbitrators decide the facts and the courts decide the law.† Applying this rule, we conclude that the district court appropriately exercised subject matter jurisdiction over the matters brought before it.

Reversed and remanded.

 

 

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