This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Kevin E. Burns,
Barbara R. Burns,
Renee A. DeFina,
Ronald Ungerman, et al.,
In re the Matter of Barbara Burns, Kevin Burns, and Renee DeFina
Hennepin County District Court
File No. 03-17802
Kevin E. Burns, 7431 Lyndale Avenue South, #110, Richfield, MN 55423 (pro se appellant)
Renee A. Defina, 980 Main Street, Hackensack, NJ 07601 (pro se appellant)
David E. Albright, 7814 131st Street West, Apple Valley, MN 55124 (for respondents)
Considered and decided by Wright, Presiding Judge; Lansing, Judge; and Kalitowski, Judge.
Appellant Barbara Burns was enjoined from litigation indefinitely unless her pleadings were approved by the Chief Judge or signed by a licensed attorney. Barbara Burns, joined by appellants Kevin Burns and Renee DeFina, subsequently brought an action pro se in violation of this order. By an order to show cause, the district court stayed the action and directed appellants to establish why the action was not subject to the injunction order. When appellants failed to respond, the district court dismissed the action with prejudice, assessing $5,000 in fines and $1,382.50 in attorney fees. With respect to the dismissal order, appellants argue that (1) the judge was duly removed and lacked authority to issue the order; (2) appellants are entitled to a default judgment; (3) insufficient notice was given of the order to show cause; and (4) the district court abused its discretion by imposing sanctions. We affirm.
In the early 1990s, several sources alleged that Barbara Burns had engaged in nuisance litigation in Minnesota district courts. On December 12, 1994, Judge Kevin Burke, then Chief Judge of the Fourth Judicial District, issued an order to show cause, directing Barbara Burns to demonstrate why she should not be barred from contact with Fourth Judicial District administration or personnel and why she should not be prohibited from phoning or faxing the court. The show-cause order further contemplated precluding Barbara Burns from initiating any legal action in the Fourth Judicial District unless her filings were signed by a licensed attorney or approved by the Chief Judge.
On December 14, 1994, Barbara Burns filed a notice to remove Chief Judge Burke from the hearing on the order to show cause, alleging judicial bias. In an order by Judge John Stanoch, Barbara Burns’s petition was denied for failure to demonstrate that Chief Judge Burke was biased.
Chief Judge Burke conducted a hearing on the order to show cause. The ensuing order of January 5, 1995, required Barbara Burns to communicate with Fourth Judicial District administration or personnel for the next year strictly by U.S. Mail or licensed courier. The order, however, did not require Barbara Burns to seek approval for her filings.
Barbara Burns appealed the January 5, 1995 order. In re Burns, 538 N.W.2d 162 (Minn. App. 1995). Concluding that Barbara Burns was entitled to the removal of Chief Judge Burke as of right and that the hearing on the order to show cause violated procedural due process, we reversed and remanded. Id. at 166-67. Chief Judge Burke appealed; and the Minnesota Supreme Court reversed and reinstated the January 5 order, holding that the order was a proper exercise of “the district court’s authority to enforce the Rules of Civil Procedure and to maintain order and decorum in the operation of the court system[.]” In re Burns, 542 N.W.2d 389, 390 (Minn. 1996).
During and after these appeals, allegations that Barbara Burns engaged in nuisance litigation continued to accumulate. Thus, Judge Daniel Mabley, then Chief Judge of the Fourth Judicial District, issued an order to show cause against Barbara Burns on March 24, 1997. The show-cause order substantially reiterated the proposed sanctions from the December 12, 1994 order to show cause.
Chief Judge Mabley conducted a hearing on the order to show cause on April 2, 1997. The ensuing order of April 3, 1997, included extensive findings regarding Barbara Burns’s abuse of the judicial system in the Fourth Judicial District. Effective “immediately and indefinitely,” the order directed that, in any action in which Barbara Burns is a named plaintiff, her filings must be signed by a licensed attorney or approved by the Chief Judge. It also provided notice that future sanctions may include fines or dismissal with prejudice.
Much of the litigation initiated by Barbara Burns arises from repairs on her home made in the early 1990s by respondent R.A. Ungerman Construction Company. Burns brought an action against R.A. Ungerman Construction Company and its owners, Ronald and Margaret Ungerman (collectively Ungerman), at least three times in the 1990s. All were resolved in Ungerman’s favor. The records of these prior actions have not been made available for this appeal.
Proceeding pro se, Barbara Burns and two other plaintiffs brought another action against Ungerman on October 28, 2003. The co-plaintiffs are Barbara Burns’s mother, Renee DeFina, and former husband, Kevin Burns. On November 13, 2003, then Chief Judge Burke stayed the action against Ungerman and issued an order to show cause, directing Barbara Burns to demonstrate why the action against Ungerman was not subject to the requirements of the April 3, 1997 order. DeFina filed a notice to remove Judge Burke on November 14, 2003.
Chief Judge Burke held a hearing on the order to show cause on December 2, 2003, at which DeFina and the Burnses failed to appear. Chief Judge Burke directed his clerk to contact the plaintiffs by telephone and ordered transcription of each telephone call. When Barbara Burns did not answer, the clerk left a message on the answering machine. The clerk spoke with DeFina and Kevin Burns by telephone. Both claimed not to have received notice of the hearing. Kevin Burns advised that Metro Legal Services was his agent for service of process. Based on the November 14 notice to remove, DeFina and Kevin Burns also argued that Chief Judge Burke lacked authority to conduct the hearing.
Chief Judge Burke later inquired about efforts to serve the plaintiffs. The sheriff reported that, when service was attempted at the address listed in the summons and complaint, the residence at that address was abandoned. Ungerman then proffered the district court a letter from Kevin Burns to Ungerman dated November 16, 2003, which indicated that the plaintiffs had designated Metro Legal Services as their agent for service of process.
Chief Judge Burke issued an amended order to show cause on December 2, 2003, in which he directed that service be made on the plaintiffs via Metro Legal Services. But when attempted, Metro Legal Services rejected service and asserted that it no longer was the plaintiffs’ agent for service of process. Finding that all reasonable attempts at service on plaintiffs had been frustrated by their own conduct, Chief Judge Burke proceeded with a hearing on the order to show cause on December 8, 2003, at which plaintiffs failed to appear.
In its order of January 16, 2004, the district court dismissed the case with prejudice, awarded Ungerman $1,382.50 in attorney fees, and fined Barbara Burns $5,000 for the repeated violation of extant court orders. This appeal followed.
DeFina and the Burnses initially contend that the January 16, 2004 order is ineffective because Chief Judge Burke was properly removed from the case prior to issuing the order. The notice to remove dated November 14, 2003, sought to remove Chief Judge Burke as of right, pursuant to Minn. R. Civ. P. 63.03. Whether a district court complied with Minn. R. Civ. P. 63.03 is a question of law, which we review de novo. Citizens State Bank of Clara City v. Wallace, 477 N.W.2d 741, 742 (Minn. App. 1991).
Any party or attorney may make and serve on the opposing party and file with the administrator a notice to remove. The notice shall be served and filed within ten days after the party receives notice of which judge or judicial officer is to preside at the trial or hearing, but not later than the commencement of the trial or hearing.
Minn. R. Civ. P. 63.03. If a notice to remove as of right is properly filed, the removed judge ordinarily is barred from further consideration in the matter. Citizens State Bank of Clara City, 477 N.W.2d at 742. A removed judge nevertheless retains authority to make orders that are “purely formal in character” or that are pursuant to “ministerial duties.” Minn. State Bar Ass’n v. Divorce Educ. Assocs., 300 Minn. 323, 325, 219 N.W.2d 920, 921 (1974) (quotation omitted). A removed judge also may take action against a nuisance litigant who “disrupt[s] the regular operation of the courts.” In re Burns, 542 N.W.2d at 390.
For the purpose of our analysis, we assume that the notice to remove dated November 14, 2003, properly removed Chief Judge Burke. Our review of the record establishes that, following this removal, Chief Judge Burke’s orders related exclusively to Barbara Burns’s actions as a disruptive nuisance litigant. The actions of the district court, including its written orders, were directed at ensuring Barbara Burns’s compliance with the April 3, 1997 order. Chief Judge Burke, therefore, had authority to issue the orders of December 2, 2003, and January 16, 2004. See id.
DeFina and the Burnses next argue that, because Ungerman failed to timely answer the complaint, they are entitled to a default judgment. We review the denial of a default judgment for an abuse of discretion. Coller v. Guardian Angels Roman Catholic Church, 294 N.W.2d 712, 715 (Minn. 1980).
If a defendant fails to plead or otherwise defend against a complaint in the time allowed by law, a default judgment may be entered against that defendant. Minn. R. Civ. P. 55.01; Howard v. Frondell, 387 N.W.2d 205, 207 (Minn. App. 1986), review denied (Minn. July 31, 1986). But if a defendant cooperates with pretrial proceedings, then the plaintiff waives the right to seek a default judgment. See Doe v. Legacy Broad. of Minn., Inc., 504 N.W.2d 527, 529 (Minn. App. 1993) (concluding that waiver may be inferred in part from parties’ cooperation during pretrial mediation and trial preparation). Furthermore, if a proceeding is stayed, the district court lacks authority to enter a default judgment. See Bernick v. Caboose Enters., Inc., 395 N.W.2d 412, 414 (Minn. App. 1986) (holding that plaintiff could not obtain default judgment when proceedings were stayed due to defendant’s filing for bankruptcy).
Here, DeFina and the Burnses served Ungerman with the complaint and summons on October 28, 2003. Sixteen days later, that action was stayed by the order to show cause of November 13, 2003. A defendant in a civil action ordinarily is required to answer within 20 days after service of the summons. Minn. R. Civ. P. 12.01. Thus, the action against Ungerman was stayed before the deadline for Ungerman’s answer. Furthermore, after the stay was entered, Ungerman appeared for the hearings on the order to show cause.
Even if DeFina and the Burnses had properly moved for a default judgment, such relief was not available once the stay was entered. See Bernick, 395 N.W.2d at 414. Thus, the district court did not abuse its discretion by declining to grant this relief.
DeFina and the Burnses assert that they did not receive notice of the hearings held December 2, 2003, and December 8, 2003, thereby precluding a decision on the merits of the November 13, 2003 show-cause order. She argues that the proceedings constituted an improper ex parte hearing. The sufficiency of notice is a question of law, which we review de novo. Resolution Revoking License No. 000337 West Side Pawn, 587 N.W.2d 521, 522 (Minn. App. 1998), review denied (Minn. Mar. 30, 1999); see also Electro-Measure, Inc. v. Ewald Enters., Inc., 398 N.W.2d 85, 88 (Minn. App. 1986) (reviewing de novo whether service by publication provided adequate notice), review denied (Minn. Mar. 13, 1987).
“[E]very order required by its terms to be served . . . shall be served upon each of the parties.” Minn. R. Civ. P. 5.01.
Immediately upon the filing of an order or decision or entry of a judgment, the court administrator shall serve a notice of the filing or entry by mail upon every party affected thereby or upon such party’s attorney of record, whether or not such party has appeared in the action, at the party or attorney’s last known address, and shall make a notice in the court records of the mailing . . . .
Minn. R. Civ. P. 77.04. The purpose of rules 5.01 and 77.04 is to ensure that district courts make a good faith effort to serve orders on affected parties. Tombs v. Ashworth, 255 Minn. 55, 63, 95 N.W.2d 423, 428-29 (1959). If a district court fails to make a good faith effort to serve an order, then parties affected by the order cannot be bound by it. Ruggiero v. Ruggiero, 399 A.2d 187, 189-90 (Conn. Super. Ct. 1978); McCormick v. Mars Assocs., Inc., 265 N.Y.S.2d 1004, 1005 (N.Y. App. Div. 1966); 56 Am.Jur.2d Motions and Orders § 53 (2d ed. 2000); see also Garcia v. Comm’r of Public Safety, 572 N.W.2d 311, 313 (Minn. App. 1997) (holding that party not bound by court order when mailed notice did not specify type of order or date of filing).
When the district court issued the November 13, 2003 order to show cause, it mailed the order to the address supplied in the summons and complaint. Thus, the district court strictly complied with the requirements of rule 77.04. And when the district court learned that not one of the plaintiffs resided at this address, it then attempted service via their purported agent for service of process.
When a district court’s repeated attempts at serving a party are thwarted by the misrepresentations of that party, the district court has made a good faith effort to accomplish service. Accordingly, the district court complied with the notice requirements of the rules of civil procedure, and the proceedings were not improper.
DeFina and the Burnses also challenge the sanctions imposed in the January 16, 2004 order. The district court has broad discretion in imposing sanctions for litigation misconduct, which we review for an abuse of that discretion. Gibson v. Coldwell Banker Burnet, 659 N.W.2d 782, 790 (Minn. App. 2003) (misrepresentations in pleadings); Chicago Greatwestern Office Condo. Ass’n v. Brooks, 427 N.W.2d 728, 730 (Minn. App. 1988) (discovery violations). The sanctions imposed, however, must be no more severe than necessary to deter future misconduct. See Kellar v. Von Holtum, 605 N.W.2d 696, 701 (Minn. 2000) (misrepresentations in pleadings).
DeFina and the Burnses initially assert that dismissal with prejudice was improper. This sanction receives greater scrutiny because it constitutes a final determination on the merits. See Firoved v. Gen. Motors Corp., 277 Minn. 278, 283, 152 N.W.2d 364, 368 (1967) (considering dismissal with prejudice sanction for discovery violations). Nevertheless, several Minnesota cases have upheld dismissal with prejudice based solely on a party’s resistance to court orders. See, e.g., Breza v. Schmitz, 311 Minn. 236, 247, 248 N.W.2d 921, 922 (1976) (upholding dismissal with prejudice based on plaintiff’s failure to cooperate or comply with discovery orders); Deutz & Crow Co. v. Anderson, 354 N.W.2d 482, 490-91 (Minn. App. 1984) (approving dismissal with prejudice, in contempt proceeding, based on five-year history of misconduct); cf. Dixon v. Depositors Ins. Co., 619 N.W.2d 752, 757 (Minn. App. 2000) (upholding dismissal and injunction where litigant attempted third action against same defendant).
Barbara Burns also challenges the imposition of a fine and attorney fees against her. Because the fine is a purely punitive measure, its amount need not be based on the actual cost of the misconduct. See State by Johnson v. Sports & Health Club, Inc., 392 N.W.2d 329, 337 (Minn. App. 1986) (upholding fine in contempt proceeding of $300 per day until party complied with court order), review denied (Minn. Sept. 24, 1986). But attorney fees must be reasonably based on the expenses a party incurs by opposing the misconduct. See Mears Park Holding Corp. v. Morse/Diesel, Inc., 426 N.W.2d 214, 219-20 (Minn. App. 1988) (upholding approximately $30,000 in attorney fees as sanction for unfounded pleadings).
In its memorandum accompanying the January 16, 2004 order, the district court outlined in detail a decade-long history of abusive litigation, including Barbara Burns’s litigation against Ungerman on at least three prior occasions. Although Barbara Burns did not prevail in any of these cases, she persists in attempting to litigate issues that have been conclusively decided against her. The district court also observed that the current action, with DeFina and Kevin Burns named as co-plaintiffs, is an attempt to circumvent the April 3, 1997 order by obscuring Barbara Burns’s involvement. But the April 3, 1997 order specifically restrains Barbara Burns in any action in which she is a named plaintiff. After acknowledging that sanctions of this magnitude should be imposed only in extraordinary circumstances, the district court concluded that such circumstances were present here in light of Barbara Burns’s history of abusive litigation and failure to comply with court orders aimed at protecting against the very misconduct at issue here. The district court concluded that less severe sanctions have failed to deter Barbara Burns from initiating abusive and wasteful litigation. The district court’s findings and conclusions are amply supported by the record.
The April 3, 1997 order warned Barbara Burns that sanctions for future violations may include fines, attorney fees, and dismissal with prejudice. Absent any indication that a less severe sanction would be effective to curtail Barbara Burns’s abusive litigation, it was not an abuse of discretion for the district court to order dismissal with prejudice and to impose a $5,000 fine. Because counsel for Ungerman submitted reasonable evidence of the cost to defend against Barbara Burns’s action, the district court also did not abuse its discretion by imposing $1,382.50 in attorney fees.