This opinion will be unpublished and

may not be cited except as provided by

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






Patricia L. Larsen, et al.,


Mayo Foundation,



Filed December 18, 2001


Peterson, Judge



Olmsted County District Court

File No. C9002355



Kenneth F. Johannson, Johnannson, Rust, Fagerlund, Yon & Stock, 407 North Broadway, P.O. Box 605, Crookston, MN  56716 (for appellants)



Leo G. Stern, Fredrikson & Byron, P.A., 1100 International Centre, 900 Second Avenue South, Minneapolis, MN  55402-3397 (for respondent)



            Considered and decided by Anderson, Presiding Judge, Peterson, Judge, and Mulally, Judge.*

U N P U B L I S H E D   O P I N I O N


Appellants Patricia L. Larsen and Donald Larsen brought a medical-malpractice action against respondent Mayo Foundation in federal district court, and the case was dismissed as barred by the statute of limitations.  After the state legislature extended the relevant statute of limitations from two years to four years, appellants filed another action in federal court, and the case was dismissed as barred by res judicata.  Appellants then brought an action in state court.  The state district court granted respondent’s motion for summary judgment and dismissed the case as barred by res judicata.  By separate order, the district court granted respondent’s motion for sanctions.  Appellants seek remand for trial and dispute the award of sanctions.  We affirm.


            Appellants filed their first medical-malpractice action against respondent in federal district court on May 29, 1998.  On June 1, 1998, appellants mailed a copy of the summons and complaint to respondent along with an acknowledgment-of-service form.  Respondent never signed or returned the acknowledgment form and refused to admit service.  On June 24, 1998, respondent received an amended summons and complaint, which was filed on June 19, 1998, and again refused to sign or return the acknowledgement-of-service form.  On September 8, 1998, the Olmsted County Sheriff’s Department personally served respondent with the summons and complaint.

            The federal district court dismissed respondents’ action on the ground that it was barred by the two-year statute of limitations for medical-malpractice actions.  Respondents appealed the decision to the federal court of appeals, and the court of appeals affirmed.

            On November 22, 1999, after the state legislature extended the statute of limitations for medical malpractice from two years to four years, appellants brought a second action against respondent in federal district court.  The federal district court dismissed the action as barred by res judicata.  Appellants then brought an action in state court, and respondent moved for summary judgment and for sanctions.  The district court dismissed the action as barred by res judicata and awarded respondent $2,500 for attorney fees.    


1.         On appeal from summary judgment, two questions are asked: (1) whether there are any genuine issues of material fact and (2) whether the lower court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  A reviewing court need not defer to the district court’s application of the law when the material facts are not in dispute.  Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).  “We review the applicability of res judicata de novo.”  Ascher v. Comm’r of Pub. Safety, 527 N.W.2d 122, 125 (Minn. App. 1995), review denied (Minn. Mar. 21, 1995) (citation omitted).

            A claim is barred by res judicata when: (1) there has been a final judgment on the merits, (2) the same cause of action is involved, and (3) the parties are identical.


Wessling v. Johnson, 424 N.W.2d 795, 797 (Minn. App. 1988) (citation omitted).

Appellants do not dispute that the final two factors are met.  Appellants argue, however, that there has been no final judgment on the merits because the complaint in the first federal action was served on respondent after the two-year statute of limitations expired, and therefore, the action was not commenced, and the federal court never acquired jurisdiction over respondent.  Appellants contend that if the federal court never acquired jurisdiction, there could be no judgment on the merits.

Appellants cite no authority for their argument that serving a complaint after the relevant statute of limitations has run fails to commence an action.  Minn. R. Civ. P. 3.01 states:

            A civil action is commenced against each defendant:


            (a) when the summons is served upon that defendant, or


            (b) at the date of acknowledgement of service if service is made by mail, or


            (c)  when the summons is delivered to the sheriff in the county where the defendant resides for service; but such delivery shall be ineffectual unless within 60 days thereafter the summons is actually served on that defendant or the first publication thereof is made.


There is nothing in the language of this rule that suggests that a civil action is not commenced if any of the three acts that commence a civil action occurs after the statute of limitations has run.  Furthermore, this court has held that:

            A dismissal based on statute of limitations grounds is a decision on the merits, and is a bar to a second action brought under a different limitation period where the claims are substantially the same.


Nitz v. Nitz, 456 N.W.2d 450, 452 (Minn. App. 1990) (citation omitted); Sautter v. Interstate Power Co., 567 N.W.2d 755, 759 (Minn. App. 1997); see also Dollar Travel Agency, Inc. v. Northwest Airlines, Inc., 354 N.W.2d 880, 882 (Minn. App. 1984) (holding that summary judgment is a judgment on the merits).  This holding implicitly recognizes that when an action is not commenced within the limitation period, the action was nevertheless commenced, and the court has jurisdiction to determine whether the action was commenced within the limitation period.

Appellants attempt to distinguish Nitz by arguing that the second action in Nitz involved a different cause of action with a different statute of limitations, while this case involves the same cause of action with an extendedstatute of limitations.  But appellants do not explain why res judicata should not apply when a second lawsuit is brought under an extended statute of limitations rather than under a different statute of limitations.   Nitz bars a second action where the claims in the first and second action are substantially the same.  This case is even more compelling than Nitz for concluding that the first and second actions are substantially the same because appellants are attempting to bring the same medical-malpractice claim based on the same facts as their federal action.  In Nitz, the first action asserted a claim for negligent installation of a bird feeder while the second action asserted a claim for negligent maintenance and inspection.

2.         In a separate judgment, the district court awarded respondent $2,500 in sanctions for appellants’ violation of Minn. Stat. § 549.211 (2000) and Minn. R. Civ. P. 11.   Sanctions awarded under the statute or rule 11 are reviewed under an abuse-of-discretion standard.  Cole v. Star Tribune, 581 N.W.2d 364, 370 (Minn. App. 1998).

            The district court determined that

the initiation and continuation of this action, was without justification or reasonable basis in that the complaint raised frivolous arguments heretofore addressed and disposed of in their entirety by other courts, all in violation of Minn. Stat. § 549.211 and Rule 11.


            Appellants argue that sanctions are not appropriate because they had a reasonable basis for commencing this action in state court.  We disagree.  Appellants asserted in their complaint that “this action has been timely commenced.”  Appellants also contended in their second federal action that the action was timely under the extended four-year statute of limitations, but the federal court dismissed the action as barred by res judicata.  The second federal court rejected appellants’ argument that res judicata did not apply because the first federal action was dismissed on statute-of-limitations grounds, and therefore, there was no judgment on the merits.  Appellants’ attempt to bring their action in state court rests on this same frivolous argument that a dismissal on statute-of-limitations grounds is not a judgment on the merits.  As we have already explained, this argument is directly contrary to existing precedent.  The district court did not abuse its discretion when it awarded sanctions.



*   Retired judge of the district court, serving as judge of the Minnesota  Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.