This opinion will be unpublished and

may not be cited except as provided by

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








Catherine Modrow,


JP Foodservice, Inc.,



Filed December 18, 2001


Peterson, Judge


Hennepin County District Court

File No. 9916865



Eric J. Braaten, Nicklaus, Braaten & Hollenhorst, PLLC, The Historic Chaska Mill, 500 Pine Street North, Suite 200, Chaska, MN  55318 (for appellant)



Jacques T. Cowan, Faegre & Benson, LLP, 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN  55402-3901 (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


In this appeal from a judgment dismissing appellant Catherine Modrow’s action against respondent JP Foodservice, Inc., for failure to prosecute, appellant argues that the dismissal was improper because the case had not been called for trial.  We agree and reverse.


Appellant worked for respondent from September 9, 1992, until June 23, 1993.  On August 10, 1993, appellant filed a discrimination complaint against respondent with the Equal Employment Opportunity Commission (EEOC).  On June 8, 1995, the EEOC terminated its investigation without completing it, and appellant was issued a right-to-sue letter.  In June 1995, appellant served a summons and complaint on respondent, and in July 1995, an amended complaint was served.

From 1995 through 1998, appellant did not conduct any discovery or do anything else to advance her claim.  In February 1998, respondent served appellant with interrogatories and requests for production of documents.  On November 18, 1999, appellant filed her complaint in district court, and respondent filed its answer on December 8, 1999.  Pursuant to Minn. R. Gen. Pract. 111.02, appellant submitted her informational statement to the court, and pursuant to Minn. R. Gen. Pract. 111.03, the court issued a scheduling order, which set a trial date.  Before the scheduled trial date, respondent moved to dismiss for failure to prosecute, and the district court granted the motion.


Minn. R. Civ. P. 41.02(a) states:   

The court may upon its own initiative, or upon motion of a party, and upon such notice as it may prescribe, dismiss an action or claim for failure to prosecute or to comply with these rules or any order of the court.


“We will reverse an involuntary dismissal under Rule 41.02(1)[1] only when the trial court abused its discretion.”  Bonhiver v. Fugelso, Porter, Simich & Whiteman, Inc., 355 N.W.2d 138, 144 (Minn. 1984).

Because a dismissal with prejudice is the most punitive sanction that can be imposed for failure to prosecute, it should be granted only under exceptional circumstances.


Minn. Humane Soc’y v. Minn. Federated Humane Societies, 611 N.W.2d 587, 590 (Minn. App. 2000) (citing Firoved v. Gen. Motors Corp., 277 Minn. 278, 283, 152 N.W.2d 364, 368 (1967)).  “Before the court may properly find a failure to prosecute, it must call the case for trial.”  Id.

Citing Minn. Humane Soc’y, appellant argued in the district court that dismissal would be improper because her case had not been called for trial.  The district court rejected this argument.  Citing Copeland v. Bragge, 378 N.W.2d 35 (Minn. App. 1985), the district court stated:

[T]he Copeland Court rejected plaintiff’s argument that a failure to prosecute may not be established until a case is called for trial.  The Copeland plaintiffs tried to advance exactly the same argument advanced by [appellant] here.  The Copeland Court rejected that argument and noted that case management procedures had changed.  The Copeland Court concluded that the requirement that the case be called for trial was “inapplicable”.


The district court read this court’s opinion in Copeland too broadly.  This court did not say in Copeland that the requirement that a case must be called for trial before the court may properly find a failure to prosecute is no longer applicable to any case.  This court said only that this requirement was inapplicable in Copeland.  This court stated in Copeland:

Finally, the Copelands argue that a failure to prosecute may not be established until a case has been called for trial and the plaintiff fails to appear at the calendar call.  See Zuleski v. Pipella, 309 Minn. 585, 245 N.W.2d 586 (1976); Breza v. Schmitz, 305 Minn. 537, 233 N.W.2d 559 (1975), appeal after remand, 311 Minn. 236, 248 N.W.2d 921 (1976); Jeurissen v. Harbeck, 267 Minn. 559, 127 N.W.2d 437 (1964).  In Zuleski, Breza and Jeurissen, however, the plaintiffs had filed a note of issue.  None was ever filed by the Copelands here.  They have made no efforts whatsoever toward developing their case in five years.  They have in no way indicated that they are ready or willing to proceed with the litigation process.  The cases they cite in support of their argument that a failure to prosecute may not be established until the case has been called for trial are inapplicable to their case.


Copeland, 378 N.W.2d at 39.

            The specific reason why this court concluded that the requirement that the case be called for trial was inapplicable in Copeland was that the Copelands had not filed a note of issue, which would have indicated that they were prepared to go to trial.[2]  Id.  Because the Copelands had not indicated that they were prepared to go to trial, they could not rely on the requirement that their case be called for trial before it could properly be dismissed for failure to prosecute.  But unlike the Copelands, appellant had complied with the procedural requirements for obtaining a trial date, and her case was set for trial when respondent moved to dismiss for failure to prosecute.  Therefore, the exception recognized in Copeland does not apply here.

            Furthermore, this court’s recent opinion in Minn. Humane Soc’y, expressly holds that:

A condition precedent to a proper dismissal for failure to prosecute is the court’s order that the parties proceed to trial.  That condition was not satisfied here.  The district court abused its discretion in dismissing the action for failure to prosecute.


Minn. Humane Soc’y, 611 N.W.2d at 590.  Although an exception was recognized in Copeland, this statement indicates that the general rule continues to apply.  But see Ryan v. Ballentine VFW Post No. 246, 407 N.W.2d 105, 107 (Minn. App. 1987) (filing note of issue/certificate of readiness does not, in and of itself, prevent dismissal for failure to prosecute when case has not been called for trial).

            As in Minn. Humane Soc’y, the district court abused its discretion in dismissing appellant’s action for failure to prosecute without ordering the parties to proceed to trial.



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

[1]Minn. R. Civ. P. 41.02(a) was previously numbered as Rule 41.02(1).  The language of the rule has not been changed.

[2] When the Copeland case was in the district court in 1985, Spec. R. Pract., Fourth Jud. Dist. 4.01 stated: “No case will be assigned for trial until a Note of Issue/Certificate of Readiness has been filed.”