This opinion will be unpublished and

may not be cited except as provided by

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








Discover Bank, by its servicing agent,

Discover Financial Services, Inc.,





Beverly M. Sanderson,



Filed June 29, 2004


Forsberg, Judge*


Anoka County District Court

File No. C3024077



Derrick N. Weber, Jeffrey J. Cohen, Messerli & Kramer P.A., 3033 Campus Drive, Suite 250, Plymouth, MN 55441 (for appellant)


Richard P. Clem, P.O. Box 14957, Minneapolis, MN 55414 (for respondent)



††††††††††† Considered and decided by Klaphake, Presiding Judge; Halbrooks, Judge; and Forsberg, Judge.

U N P U B L I S H E D†† O P I N I O N


††††††††††† Appellant Discover Bank (Discover) brought an action against respondent Beverly Sanderson seeking to collect $5,073 allegedly due on purchases made by Sanderson using her Discover credit card.† The district court struck Discoverís complaint and entered default judgment against Discover for failure to fully comply with a discovery order and for submitting a false affidavit during the discovery process.† We affirm.


In October 2001, Discover commenced an action against Sanderson seeking to collect $5,073 allegedly due on a Discover credit card issued to her in 1996.† Sanderson served a timely answer, admitting that she had made purchases using the credit card, but alleging that the principal sum owed was not $5,073.

In December 2001, Discover served discovery requests, to which Sanderson did not respond.† On June 21, 2002, the district court ordered Sanderson to comply with the discovery requests within 14 days and warned that if Sanderson did not comply her answer would be stricken and default judgment would be entered against her.† On July 3, 2002, Sanderson served responses to discovery by U.S. mail including copies of all billing statements in her possession.† At the same time, Sanderson served discovery requests on Discover, including requests for admissions, answers to interrogatories, and documents.

In September 2002, despite Sandersonís discovery responses served in early July, Discoverís counsel filed an affidavit with the district court stating that ďas of this date no Responses to [Discoverís] discovery requests have been receivedĒ and requested that the court strike Sandersonís answer and enter default judgment against her.† Based on this affidavit, the district court granted Discoverís motion, struck Sandersonís answer, and entered default judgment.† Sandersonís wages were subsequently garnished.

In November 2002, Sanderson and Discover agreed to stipulate to having the default judgment vacated.† At this time, Sandersonís counsel reminded Discover that it had not yet responded to Sandersonís discovery requests.† Discover did not respond, the stipulation to vacate the default judgment against Sanderson was not filed, and Sanderson filed a motion to compel discovery and vacate the default judgment.

On January 6, 2003, the district court granted Sandersonís motion compelling discovery and warned that if Discover did not comply within 21 days, Discoverís complaint would be stricken and default judgment would be entered against Discover.† Discover submitted its responses to discovery, accompanied by letter dated January 16, 2003.† Approximately one week later, Sandersonís counsel wrote informing Discover that the response was inadequate.† This letter explained that a copy of billing statements for the lifetime of the account would satisfy the discovery requested.† Discover did not supplement its discovery responses.

In July 2003, Sanderson filed a motion to strike Discoverís complaint and enter default judgment due to Discoverís noncompliance with discovery.† A corresponding affidavit by Sandersonís counsel stated that of the 104 pages of documents submitted by Discover, 97 were copies of billing statements Sanderson had disclosed in her discovery responses to Discover.† The affidavit also explained that a complete history of billing statements was necessary for Sanderson to support her defense that Discover had improperly rolled over her account, thus inflating the principal sum due.† The affidavit noted that Discover did not disclose witnesses, itemize attorney fees, or provide a statement as to the reasonableness of the claimed attorney fees.† Finally, in response to a request that Discover identify all communications between the parties, Discover wrote ďsee attachedĒ but, according to Sandersonís counsel, nothing of relevance was in fact attached.† In August 2003, after Sanderson filed her motion for default judgment, Discover produced billing statements for the lifetime of the account.

In October 2003, the district court granted Sandersonís motion, struck Discoverís complaint, and entered default judgment against Discover.† At the hearing, Discoverís counsel admitted that the sought-after billing statements, which were ultimately disclosed in August 2003, had been in counselís possession since February 2003.† The court concluded that Discoverís January 2003 responses to Sandersonís discovery requests failed to comply with the courtís order and that the account statements sent in August 2003 were untimely.† The court noted that dismissal of the complaint was an appropriate sanction for both the false affidavit submitted by Discoverís counsel in September 2002 and for Discoverís ďfailure to cooperate in the discovery process.Ē† This appeal followed.


1.†††††††† A court is vested with authority to strike pleadings and render a judgment by default against a disobedient party who fails to comply or respond to discovery orders or requests.† Minn. R. Civ. P. 37.02(b)(3), 37.04(2).† ďA trial courtís dismissal of an action for procedural irregularities will be reversed on appeal only if it is shown that the trial court abused its discretion.Ē† Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990).

In determining whether a district court has abused its discretion in imposing discovery sanctions the primary factor to be considered is prejudice to the parties.† Beal v. Reinertson, 298 Minn. 542, 544, 215 N.W.2d 57, 58 (1974).† Other factors to be considered by an appellate court include the availability of alternatives to dismissal, whether the failure to cooperate with discovery was an isolated event or part of a pattern, and whether the failure to comply was willful or without justification.† See Breza v. Schmitz, 311 Minn. 236, 237, 248 N.W.2d 921, 922 (1976) (willful or without justification); Sudheimer v. Sudheimer, 372 N.W.2d 792, 795 (Minn. App. 1985) (availability of alternatives to dismissal); Williams v. Grand Lodge of Freemasonry AF & AM, 355 N.W.2d 477, 480 (Minn. App. 1984) (isolated event or part of a pattern), review denied (Minn. Dec. 20, 1984).

Discover argues the district court erred in striking the complaint and entering a default judgment ďas a sanction for its attorneysí inadvertent failure to supplement discovery responses in a timely manner.Ē† Discover contends the district court abused its discretion because Discoverís failure to comply with the courtís January 2003 order was an isolated occurrence, Discoverís behavior was not willful or without justification, Sanderson failed to demonstrate prejudice, and other alternative sanctions were available.† We disagree.

Here, during the discovery process, Discoverís counsel submitted an affidavit falsely stating that Sanderson had not complied with the courtís June 2002 order compelling her to comply with discovery.† This resulted in an order striking Sandersonís answer and entering default judgment against her.† This order was later vacated on Sandersonís motion.† Moreover, Sanderson served discovery requests on Discover in July 2002 and raised the issue of those requests again in November 2002, but Discover responded only after being ordered to do so in January 2003.† And Discover does not deny that its January 2003 response was incomplete because it did not include billing statements for the lifetime of the account, or that its supplemental disclosure in August 2003 was untimely.† Thus, it is apparent that Discoverís failure to cooperate during the discovery process by not complying with the district courtís January 2003 order was not an isolated occurrence.

In part, Discover attempts to justify its behavior by explaining that the billing statements Sanderson requested are not always available to credit-card companies in this type of action.† Discover also claims that its behavior during discovery was ďinnocentĒ and due to attorney error or ďmistake.Ē† Nevertheless, the billing statements requested by Sanderson were at all times within the control and possession of Discover and in the possession of Discoverís counsel as of February 2003.† On this record, we conclude that Discoverís failure to cooperate with discovery was not justified.

Finally, we note that had Sanderson been forced to proceed to trial without the requested billing statements she would have been prejudiced by not having all of the information available to support her contention that the $5,073 figure did not correctly represent the obligation owed.† Although the district court may have had other available alternatives, it properly attempted to avoid prejudice by ordering Discover to produce responsive discovery material, fixing a deadline for production of that material, and warning that if Discover failed to comply the sanction of striking pleadings and entering a default judgment would be granted.† Cf. Sudheimer, 372 N.W.2d at 795 (stating where respondent would have been prejudiced at trial, the district court could have mitigated such prejudice by fixing a deadline for appellant to provide responses to discovery and warning of sanction for non-compliance).† Because Discoverís disobedience was not an isolated occurrence and was not justified, and because the district court gave Discover a deadline to comply with the discovery order and warning of the sanction that would otherwise be granted, we conclude that the district court did not abuse its discretion.

††††††††††† 2.†††††††† Discover contends the district court abused its discretion by concluding that the ďdismissal of [Discoverís] complaint . . . is an appropriate sanction for the affidavit of† [Discoverís] attorney of September 17, 2002.Ē† Discover notes that the district courtís order striking the complaint and entering default judgment cites Minn. R. Civ. P. 37.04(2) and 37.02(b)(3) and that neither of these rules call for the sanction of default judgment against a party who files a false affidavit with the district court.† The appellant bears the burden of demonstrating that error is prejudicial.† Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993), review denied (Minn. June 28, 1993).† Here, the district court did not abuse its discretion in striking Discoverís complaint and entering default judgment due to Discoverís failure to comply with the January 2003 order.† Thus, the error complained of by Discover is not prejudicial.

††††††††††† Affirmed.


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