This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Jill Moore,





Carl Backdahl Moving Company, et al.,



Filed January 9, 2004

Reversed and remanded

Willis, Judge


Hennepin County District Court

File No. AC 01-016431


Margaret K. Ackerman, Ackerman Law Office, P.A., 1201 Marquette Avenue South, Suite 330, Minneapolis, MN  55403 (for appellant)


F. Clayton Tyler, Bonnie S. Hoole, F. Clayton Tyler, P.A., 331 Second Avenue South, Suite 230, Minneapolis, MN  55401 (for respondents)


            Considered and decided by Stoneburner, Presiding Judge; Willis, Judge; and Shumaker,  Judge.

U N P U B L I S H E D   O P I N I O N


            This is an appeal from a judgment of dismissal of what began as a conciliation court action.  Appellant contends that (1) the district court erred by considering respondent’s untimely demand for removal of the conciliation court action to district court, (2) the district court abused its discretion in finding excusable neglect in respondent’s failure to file a timely demand for removal to district court, (3) the district court erred in vacating respondent’s dismissal of the removal when both parties agreed to the dismissal, and (4) the district court erred in dismissing appellant’s case for failure to prosecute.  Because there was no legal basis for the district court to vacate respondent’s dismissal of the removal, we reverse and remand.


            In February 2001, appellant Jill Moore hired respondent Carl Backdahl Moving Company (“Backdahl”) to move her piano to her new home.  Backdahl damaged the piano, and Moore sued for damages in conciliation court.  At trial on July 31, 2001, Backdahl appeared pro se through Carl Backdahl, the owner of the business, and, after a hearing on the merits, the court found for Moore, awarding her $5,301.13 in damages.  The notice of judgment mailed on August 1 instructed Backdahl that it had until August 24 to appeal the judgment by removing the case to district court for a trial de novo.

            On August 23, Carl Backdahl hand-delivered the notice of judgment to his attorneys, and, on August 28, Backdahl filed a “Motion for Untimely Appeal Under Rule 60” in conciliation court, asking the court for an order “granting an untimely Appeal of Judgment from Conciliation Court . . . due to mistake, inadvertence, and excusable neglect.”  Presumably Backdahl intended to seek an order allowing an untimely removal of the case to district court for a trial de novo under Minn. R. Gen. Pract. 521(a).  The conciliation court referee denied the motion.  Backdahl then filed a “Demand for Limited Removal to District Court and Affidavit” in district court, seeking relief under Minn. R. Civ. P. 60.02 and allowing removal of the case to district court.  Moore opposed the demand, arguing that the district court had no jurisdiction to consider it.  Moore further argued that even if the district court had jurisdiction, Backdahl’s failure to file a timely demand for removal was not the result of mistake, inadvertence, or excusable neglect, as required for relief under rule 60.02(a).  On October 12, the district court issued an order stating that the untimeliness of the demand was the result of excusable neglect and accepting removal of the case, and on October 23, the district court vacated the conciliation court judgment.

            Shortly thereafter, Moore learned from the Secretary of State’s office that “Carl Backdahl Moving Company” was neither a Minnesota corporation nor a registered commercial assumed name.  The record shows that Moore’s attorney sent a letter to Backdahl’s attorney, requesting consent to amend the pleadings to name Carl Backdahl individually as a defendant.  Backdahl’s attorney did not reply to the letter; instead Backdahl filed a notice of dismissal, which provided that “[p]ursuant to Rule 41 of the Minnesota Rules of Civil Procedure,” it was dismissing its “appeal.”  Correspondence in the record shows that Backdahl did not believe the conciliation court judgment against “Carl Backdahl Moving Company” would be collectible so there was no need to pursue the matter further in district court.

            In January 2002, Moore moved to (1) affirm Backdahl’s dismissal of the district court action, (2) reinstate the conciliation court judgment, and (3) amend the conciliation court judgment to identify Carl Backdahl individually as a defendant, and, therefore, a judgment debtor.  Backdahl opposed only that part of the motion that sought to amend the conciliation court judgment.  In fact, Backdahl submitted a proposed order the day before the hearing that granted those parts of Moore’s motion that asked the court to affirm dismissal of the district court action and to reinstate the conciliation court judgment.  Nevertheless, after a hearing on Moore’s motion on February 14, 2002, the district court sua sponte and without citation of authority, vacated Backdahl’s dismissal, invited a motion by Moore to add Carl Backdahl as an individual defendant in the district court action, and assigned the case to a civil trial block. 

            On April 17, 2002, the parties completed mandatory arbitration.  The arbitrator found for Moore and awarded her $4,417.18, plus costs.  Backdahl filed a request for trial.   In early June 2002, Backdahl’s attorney advised Moore’s attorney that he wanted to depose Moore.  Moore moved for a protective order preventing the deposition on the grounds that she had already testified under oath twice in proceedings related to this dispute (in conciliation court and at arbitration) and that Backdahl sought to depose her for improper purposes, including annoyance and undue burden and expense.  The court denied the motion for a protective order.  The parties scheduled Moore’s deposition for June 19, but on June 18 she cancelled the deposition, citing a work-related scheduling conflict.  Despite Backdahl’s attempts, the deposition was not rescheduled before trial.  Further, Moore did not submit written answers to a set of interrogatories propounded by Backdahl.

            Backdahl moved to dismiss for failure to prosecute and failure to comply with the rules of civil procedure and orders of the court.  On July 31, the district court granted Backdahl’s motion, and this appeal follows.



            Moore first argues that the district court did not have jurisdiction to consider Backdahl’s untimely demand for removal.  She claims that conciliation courts are governed exclusively by Minn. R. Gen. Pract. 501-525 and that the district court therefore erred by using the excusable-neglect provision of Minn. R. Civ. P. 60.02(a) as a basis for considering Backdahl’s untimely demand for removal.

            But this court has held that the district court has jurisdiction to consider an untimely demand for removal and that the district court may properly accept removal upon a showing of excusable neglect under rule 60.02(a).  McClellan v. Goldberg, 568 N.W.2d 860, 862-63 (Minn. App. 1997).  We decline Moore’s invitation to ignore McClellan and therefore conclude the district court had jurisdiction to consider Backdahl’s untimely demand for removal and its request for relief under rule 60.02(a). 


            Moore contends that even if the district court had jurisdiction to consider Backdahl’s motion, it erred by granting the motion because Backdahl failed to show the requisite excusable neglect.  Minnesota Rule of Civil Procedure 60.02 provides, in part, that

[o]n motion and upon such terms as are just, the court may relieve a party or the party’s legal representatives from a final judgment . . . order, or proceeding and may order a new trial or grant such other relief as may be just for the following reasons:

(a) Mistake, inadvertence, surprise, or excusable neglect[.]


            A court may relieve a party from the consequences of an attorney’s neglect if the party:  (1) has a reasonable defense on the merits;  (2) has a reasonable excuse for the neglect;  (3) acted with due diligence after notice of entry of judgment; and (4) shows that no substantial prejudice will result to the other party. Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964). All four factors must be met to justify granting relief under rule 60.02.  Nguyen v. State Farm Mut. Auto. Ins. Co., 558 N.W.2d 487, 490 (Minn. 1997).  The district court has discretion to grant relief under rule 60.02, and this court will not reverse its decision absent an abuse of that discretion.  Carter v. Anderson, 554 N.W.2d 110, 115 (Minn. App. 1996), review denied (Minn. Dec. 23, 1996). 

            The district court found that Backdahl’s failure to file a timely demand for removal was the result of excusable neglect, based on the following representations by Backdahl’s counsel, which are supported by the record: 

1.         Defense on the Merits

After the piano was moved, Moore signed a document stating that her piano was in good condition. 

2.         Reasonable Excuse for Neglect

            Carl Backdahl did not deliver the notice of judgment to his attorneys until Thursday, August 23, the day before the deadline for filing a notice of removal.  At that time, one of the two attorneys in the office was on vacation and the other was occupied with previously scheduled hearings.  Neither attorney was aware that the notice had been delivered until Monday, August 27.

3.         Due Diligence

            Backdahl’s attorneys filed the demand for removal on August 28, just two business days after the deadline and one day after learning about delivery of the notice of judgment to their office.

4.         Substantial Prejudice to Other Party

Moore had not argued that acceptance of a late demand for removal would substantially prejudice her, and in fact she could not show prejudice. 

We conclude that Backdahl made at least a minimal showing on each of the Finden factors and the district court, therefore, did not abuse its discretion by granting Backdahl relief under rule 60.02(a) and accepting the late demand for removal. 


            The parties agree that no conciliation court rule or rule of civil procedure specifically addresses the appropriate method for dismissing a case that has been removed from conciliation court to district court.  Moore contends that a demand for removal of a conciliation court case to district court is akin to an appeal, and, therefore, the party that sought removal should be free to dismiss the removed case on agreement of the parties.  See Minn. R. Civ. App. P. 142.01 (providing that appeal may be dismissed if the parties “execute and file with the clerk of the appellate courts a stipulation that the proceedings be dismissed”).  While there was no formal stipulation here, Moore points to the fact that, in its response to her motion to affirm the dismissal, Backdahl agreed that the district court case should be dismissed and that the conciliation court judgment should be reinstated.  On these facts, Moore asks that this court determine that the district court’s vacation of the dismissal is “erroneous as a matter of law” because when a party has undertaken to dismiss what amounts to an appeal, the opposing party agrees to the dismissal, and both parties have filed papers with the court taking the position that dismissal is proper, the dismissing party has effectively relinquished any rights to pursue its case.

            Backdahl argues that Minn. R. Civ. P. 41.01 controls and that the district court properly vacated Backdahl’s dismissal because that rule allows for dismissal only upon a plaintiff’s request or upon the filing of a stipulation signed by all parties, neither of which occurred in this case.  As a practical matter, Backdahl argues, for the first time on this appeal, that it mistakenly attempted to dismiss under rule 41.01, and it asks this court to save it from that error.  But Backdahl ignores the fact that Moore, as the plaintiff, requested affirmance of the dismissal and that both parties agreed in filings with the court and at the February 2002 hearing that the removed case should be dismissed and that the conciliation court judgment should be reinstated.

            The district court had discretion in ruling on Moore’s motion.  But we conclude that it was an abuse of that discretion for the district court, sua sponte and without citation of authority, to vacate the notice of dismissal and set the case for trial in the district court rather than granting those portions of Moore’s motion on which the parties agreed, namely that the district court case should be dismissed and the conciliation court judgment reinstated.

            By way of analogy, the supreme court has held that when both parties deem an appeal moot, the appeal should be dismissed.  See Ridgway v. Mirkovich, 192 Minn. 618, 619, 256 N.W. 521, 521 (1934).  We conclude that, similarly, a case removed from conciliation court to district court should be dismissed when both parties agree that it should be dismissed.  


            Because we conclude that this case should have been dismissed at the parties’ request in February 2002 before Backdahl’s motion to dismiss for failure to prosecute, we do not address the issue of whether the district court erred in granting that motion.

            The order of the district court vacating Backdahl’s dismissal is reversed and the case is remanded with instructions to the district court to enter an order dismissing the case pursuant to the notice filed by Backdahl and reinstating the conciliation court judgment.  We express no opinion on whether that judgment can be enforced against Carl Backdahl individually.  

Reversed and remanded.