This opinion will be unpublished and

may not be cited except as provided by

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






Martin Thomas Bassett,





Abbott Northwestern Hospital, Inc., et al.,



Filed November 13, 2001


Hanson, Judge


Hennepin County District Court

File No. EM 97-006209


Fred A. Reiter, Fred A. Reiter & Associates, Lake Calhoun Professional Building, 3109 Hennepin Avenue South, Minneapolis, MN 55408 (for appellant) 


Andrew L. Marshall, Charles E. Lundberg, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402-3787 (for respondents)


            Considered and decided by Lansing, Presiding Judge, Stoneburner, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant employee sued his former employer for false imprisonment when he was detained during an investigation for theft of drugs.  On appeal from the district court’s judgment dismissing the action with prejudice for appellant’s failure to appear at trial, appellant argues that (1) the dismissal was an abuse of discretion because the district court should have granted the continuance that appellant sought and respondent did not oppose; (2) the setting of the case on a January 1, 2001, trial block, subject to only six hours notice, was unreasonable; and (3) appellant’s absence at the commencement of trial was excused by the shortness of notice.  We affirm.


In April of 1997, appellant Martin Thomas Bassett, a former employee of respondent Abbott Northwestern Hospital, Inc. (“Abbott”), sued respondents Abbott and Allina Health Systems, Inc., alleging that they falsely imprisoned him in connection with an investigation for possible theft of drugs.  The case was delayed several times, either at Bassett’s request or because Bassett’s attorney had not completed necessary steps.

The case was initially called for trial on August 3, 1998, but was stricken from the trial calendar to allow Bassett to amend the complaint to add defendants.  The case was then set for a date-certain trial on March 22, 1999, but was continued at Bassett’s request based on his counsel’s illness.  Although the case was placed on the September 1999 trial block, it was removed from that block at Bassett’s request to the January 2000 trial block, again due to his counsel’s illness.  Bassett obtained substitute counsel, who obtained a continuance to the May 2000 trial block.  The case was removed from that block, due to Bassett’s failure to complete service on some of the added defendants.  At the time of that continuance from the May 2000 trial block, the district court considered dismissal, but ultimately decided to impose a less harsh remedy and gave Bassett yet one more chance to prepare for trial. 

The case was then called for trial on October 10, 2000.  Bassett’s counsel was apparently prepared for trial, but a mistrial was declared when Bassett’s counsel addressed the jury on topics that had been forbidden by a pretrial order.  The district court’s next scheduling order placed the case on the next civil trial block for January 2001, and provided that the parties must be prepared to commence trial on six-hours notice. 

On January 3, 2001, the district court notified the parties that trial would begin the next day.  Bassett’s attorney immediately moved for a continuance, requesting further time to prepare for trial.  Meanwhile, Bassett’s attorney contacted Bassett that evening, but Bassett did not appear in court on January 4.  The court allowed Bassett until 2:00 p.m. on January 4, but otherwise denied Bassett’s motion for a continuance.  When Bassett failed to appear for trial, respondents moved to dismiss with prejudice and for costs and disbursements.  That motion was granted.  The court said that it would reconsider the dismissal if Bassett’s absence was due to his hospitalization, incarceration, or some other severe cause beyond his control.  No such cause was brought to the district court’s attention and this appeal was taken.


The district court has great discretion to “manage its docket and eliminate delays and obstructionist tactics.”  Lampert Lumber Co. v. Joyce, 405 N.W.2d 423, 425 (Minn. 1987).  Minn. R. Civ. P. 41.02(a) allows the district court to dismiss an action for failure to prosecute or comply with any order of the court.  When dismissal is ordered under Rule 41.02(a), appellate courts view the record in the light most favorable to the order and will not reverse the decision unless the district court abused its discretion.  Bonhiver v. Fugelso, Porter, Simich & Whiteman, Inc., 355 N.W.2d 138, 144 (Minn. 1984); Zuleski v. Pipella, 309 Minn. 585, 586, 245 N.W.2d 586, 587 (1976).

Dismissal runs counter to the law’s primary objective to dispose of cases on their merits, but the public policy that parties diligently prosecute their cases is equally compelling.  Wherley v. Foss, 416 N.W.2d 463, 464 (Minn. App. 1987).  Because of these competing concerns, it is appropriate to dismiss for failure to prosecute “only when (1) the delay prejudiced the defendants; and (2) the delay was unreasonable and inexcusable.”  Bonhiver, 355 N.W.2d at 144 (citation and emphasis omitted).  Ordinarily, defendants must show more prejudice than “the ordinary expense and inconvenience of preparation and readiness for trial[s] * * * [and prejudice] should not be presumed nor inferred from the mere fact of delay.”  Firoved v. Gen. Motors Corp., 277 Minn. 278, 283-84, 152 N.W.2d 364, 368 (1967). 

But the need to prove identifiable prejudice diminishes as the length or the willfulness of a delay increases.  Belton v. City of Minneapolis, 393 N.W.2d 244, 246 (Minn. App. 1986) review denied (Minn. Nov. 19, 1986).  A concrete showing of prejudice to the defendant need not be made where there is compelling evidence that the delay was unreasonable and inexcusable.  IdSpecifically, dismissal with prejudice is appropriate when a plaintiff receives notice of a trial date and does not attend the trial.  See O’Neil v. Kelly, 239 N.W.2d 231 (Minn. 1976); Liedtke v. Ferguson, 370 N.W.2d 477 (Minn. App. 1985), review denied (Minn. Sept. 13, 1985). 

Given the excessive number of continuances and other delays, and Bassett’s absence from trial after being notified, respondents did not need to show actual prejudice.  Bassett cannot complain that the notice was unreasonable where the terms of the six-hour notice were well known to him months before the case was called.  Further, it was Bassett’s responsibility to regularly monitor the progress of the case on the court’s calendar, and to take all steps necessary to be prepared to begin trial on short notice.  Bassett’s counsel was presumably prepared to commence the trial on the two prior occasions when it had been called and could not legitimately claim lack of preparedness as grounds for a continuance.  The district court did not abuse its discretion when it dismissed the case based on Bassett’s failure to prosecute.