This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Sean D. Erickson,
Terrance W. Schirmer,
Filed March 8, 2005
Affirmed; motions granted
Ramsey County District Court
File No. C0-02-9169
Emmett Dowdal, Bridgid E. Dowdal, Dowdal & Dowdal, 995 Wildwood Road, White Bear Lake, MN 55115 (for appellant)
William L. Davidson, Lind, Jensen, Sullivan & Peterson, P.A., 150 South Fifth Street, Suite 1700, Minneapolis, MN 55402 (for respondent)
Considered and decided by Shumaker, Presiding Judge; Dietzen, Judge; and Poritsky, Judge.
Appellant challenges the district court’s judgment dismissing his claim without prejudice. Because we conclude that the court did not abuse its discretion in the dismissal, we affirm.
In November 1996, appellant Sean Erickson and respondent Terrance Schirmer were involved in a car accident. Five years and ten months later, in September 2002, Erickson brought this action against Schirmer. The statute of limitations on Erickson’s claim ran out two months later, in November 2002. In December 2002, the district court issued a scheduling order setting May 15, 2003, as the deadline both for discovery and for completion of an independent medical examination (IME); setting August 28, 2003, for a pre-trial/settlement conference; and setting “a week certain trial date of September 22, 2003.”
On January 9, 2003, shortly after receiving the order, Schirmer’s attorney wrote to Erickson’s attorney stating that an IME had been scheduled for May 7, 2003, and that Erickson would be required to pay for the IME if he neither appeared for it nor canceled the appointment. About a week before the IME, Schirmer’s attorney sent Erickson’s attorney a reminder letter. Erickson did not appear for the IME. Schirmer’s attorney wrote another letter, this time requesting a check for $750 to pay for the missed IME and stating that another IME had been scheduled for May 27, 2003. Erickson’s attorney replied, saying that Erickson had been notified of the rescheduled IME and told he must appear for it.
For a second time, Erickson did not appear for the IME. Schirmer moved the court either to dismiss Erickson’s claim or to order judgment for Schirmer against Erickson for $1,500 for the two missed IME’s, to schedule a third IME, and to reschedule the trial. Following a hearing on Schirmer’s motion, the district court issued an order awarding Schmirer judgment in the amount of $750; requiring Erickson to appear for an IME on October 1, 2003, and stating that the action would be dismissed if he failed to appear; and resetting trial for October 13, 2003.
On August 28, 2003, the scheduled pretrial/settlement conference was held. Neither Erickson nor his attorney appeared. The district court issued an order stating that pleadings, witness lists, and exhibit lists must be filed by October 3, 2003; that the doctor who performed the IME would be deposed on October 23; the trial date was again reset, this time for November 17; and that “NO CONTINUANCES WILL BE GRANTED WITHOUT THE PERMISSION OF THE COURT.”
The parties and their attorneys appeared for trial as scheduled and a jury was selected. The district court admonished the parties not to speak to the jurors. Within fifteen minutes after this admonition, Erickson spoke to one of the jurors. The district court declared a mistrial. The trial was again rescheduled, this time for November 24, 2003.
About 11:30 p.m. on November 23, 2003, Erickson called his attorney to say that he had been arrested for assault in another county, was in jail, and did not know when he would be released. Erickson’s attorney relayed this information to the district court, to Schirmer, and to Schirmer’s attorney when they all gathered for trial the next morning.
Schirmer moved to dismiss with prejudice. The district court noted that Erickson had delayed the case by failing to appear for the first two scheduled IME’s, by conversing with a juror after being admonished not to do so and thereby causing a mistrial, and by failing to appear for the rescheduled trial. The court dismissed the case without prejudice. Erickson’s attorney pointed out that the statute of limitations had now run on Erickson’s case, but the district court found this fact to be unpersuasive.
Erickson subsequently requested permission to bring a motion for reconsideration of the order dismissing his claim. He again argued that the statute of limitations had run. The court denied his request. In May 2004, he appealed to this court, arguing that the court abused its discretion in dismissing his claim and in refusing to allow him to bring a motion to reconsider. Schirmer died in August 2004, while this appeal was pending. His attorney moved (1) for permission to argue and (2) to strike portions of Erickson’s brief.
D E C I S I O N
“The court may . . . 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.” Minn. R. Civ. P. 41.02(a). “[The u]se of Rule 41.02[a] is infrequent and is within the sound discretion of the trial court.” Bonhiver v. Fugelso, Porter, Simich & Whiteman, Inc., 355 N.W.2d 138, 144 (Minn. 1984). This court “will reverse an involuntary dismissal under Rule 41.02[a] only when the trial court abused its discretion.” Id. A district court’s decision to dismiss “necessarily depends upon circumstances peculiar to each case, considered with reference to the right of the parties to the action to a ‘just, speedy, and inexpensive’ disposition of the case and the policy underlying the dismissal rules of preventing harassment and unreasonable delays in litigation.” Firoved v. General Motors Corp., 277 Minn. 278, 283, 152 N.W.2d 364, 368 (1967); see, e.g., Kielsa v. St. John’s Lutheran Hosp. Ass’n, 287 Minn. 187, 192, 177 N.W.2d 420, 423 (1970) (affirming dismissal when “the trial court without doubt took into account” facts and circumstances peculiar to the case). On appeal from an order dismissing a claim, “a reviewing court [is] charged with the duty to view the record most favorably to sustain an order involving the exercise of discretionary authority by a trial court.” Kielsa, 287 Minn. at 192, 177 N.W.2d at 423.
The district court based the dismissal on four findings pertaining to circumstances peculiar to this case:
1. [Erickson] had failed to appear for IMEs on two occasions and it was necessary for the Court to issue an order threatening sanctions if he failed to attend the [third scheduled] IME.
2. Because of [Erickson] missing the IMEs, a continuance of the trial date had to be granted and the matter was finally scheduled for trial on November 17, 2003.
3. On November 17, 2003, the parties selected the jury. However, [Erickson] started talking to one of the jurors at the noon break and it was necessary then to discharge the jury and declare a mistrial.
4. The matter was then rescheduled for jury trial on November 24, 2003. [Erickson] did not show up and [his] counsel informed the Court that [Erickson] was incarcerated and did not know when he would be able to get out of jail.
Erickson wrote to the court, requesting permission to bring a motion for reconsideration. In denying that request, the court restated its position:
The case was dismissed not solely because of Mr. Erickson’s failure to appear for trial but also Mr. Erickson had previously failed on two occasions to appear for an IME, which required this Court to continue the trial date so that the defendant could obtain an [IME]. That continuance was granted instead of the sanction of dismissal for failure to cooperate with the IME and trial was set for November 17, 2003.
Additionally, after the continuance of the trial was granted, [Mr. Erickson] failed to show up for the pretrial in violation of the Court’s scheduling order.
After selecting a jury in this matter on November 17, 2003, [Mr. Erickson] caused the mistrial by talking to a juror within 15 minutes of an admonition [from the Court] not to be talking to any jurors.
It is for all these reasons that the case was dismissed without prejudice on November 24, 2003 when [Mr. Erickson] did not show up for the trial. The failure to proceed in the prosecution of their [sic] claim by his nonappearance when called for trial on November 24, 2003, was just the straw that broke the camel’s back.
Based on the court’s statement that Erickson’s nonappearance was the immediate cause of the court’s order, we conclude that the court did not base the dismissal on failure to prosecute but on refusal to proceed. See Firoved, 277 Minn. at 285, 152 N.W.2d at 369-70 (distinguishing between these two bases for dismissal and finding refusal to proceed rather than failure to prosecute when court has granted repeated continuances).
“[T]he correct legal test for a Rule 41.02(a) dismissal . . . [is] our two-prong test of prejudice and unreasonable and inexcusable delay.” Modrow v. JP Foodservice Inc., 656 N.W.2d 389, 395 (Minn. 2003). Erickson claims that the district court “did not make any specific findings of prejudice” to either Schirmer or himself. As to any prejudice to Schirmer, when a delay is substantial, prejudice to the opposing party can be inferred. Id. Moreover, this was a dismissal without prejudice, and “under extraordinary circumstances a dismissal with prejudice might be justified even though no prejudice to defendant is shown.” Firoved, 277 Minn. at 283, 152 N.W.2d at 368. Thus, the absence of a showing of prejudice to Schirmer does not preclude dismissal.
Courts are aware that “the prejudice to [a] plaintiff of such a [Rule 41.02(a)] dismissal is certain and usually permanent.” Id. Erickson argues that the prejudice to him is extreme because he will be unable to pursue his claim. But the reasons why a dismissal without prejudice has that effect are two-fold: First, Erickson initiated this action just before the statute of limitations period expired, and there is nothing in the record to indicate that he could not have done so earlier. Parties who sue just before the statute of limitations period expires may place themselves in jeopardy of having their claims completely barred if they are required to re-initiate the action after the statutory period has expired. See Coons v. St. Paul Cos., 486 N.W.2d 771, 775 (Minn. App. 1992)(warning that plaintiffs should not attempt service by mail at or near the end of a period of limitation because defendants have the power to let the period run out before acknowledging receipt), review denied (Minn. July 16, 1992). Second, the district court made clear that it was dismissing the action because of Erickson’s repeated disobedience of court orders and the delays that resulted. Had Erickson’s conduct in this case not been as egregious as it was, the court would not have dismissed the case. In short, although there is prejudice to Erickson from the court’s order, the prejudice results directly from Erickson’s own conduct.
Erickson’s argument implies that dismissing a case on which the statute of limitations has run is, ipso facto, an abuse of discretion, but he cites no authority for that proposition. He also claims that the district court “abused [its] discretion in failing to make any findings concerning the second prong addressing inexcusable and unreasonable delay.” But the district court implicitly, if not explicitly, found that Erickson’s multiple delays of this matter were inexcusable and unreasonable: he twice failed to appear for an IME so the trial had to be postponed for two months; neither he nor his attorney appeared for the pretrial conference; he caused a mistrial by speaking with a juror after being admonished not to do so; and he failed to appear for the rescheduled trial because he was incarcerated.
Even assuming that any delay resulting from Erickson’s incarceration could not be charged against him, the incarceration is not to be viewed in a vacuum. See Kielsa,287 Minn. at 190-93, 177 N.W.2d at 423-24 (rejecting argument that only the final delay is relevant to a motion to dismiss for delay and affirming dismissal based on multiple delays).
To limit the basis for the order as narrowly as plaintiff insists would be not only to prefer form over substance and to ignore facts disclosed by the record as a whole, but would conflict with our repeated recognition of the necessity that the trial court enforce the rules designed to promote the speedy disposition of all cases awaiting trial and keep dockets free of stale claims, the trial of which is fraught with unusual difficulties of proof and not infrequently produces unacceptable results to both the losing and prevailing party as well as public dissatisfaction with our system of justice.
Id. at 192-93, 177 N.W.2d at 424.
It was not the final failure to appear but the whole sequence of delays that justified the dismissal. The district court made it clear that had Erickson been in compliance with the court’s scheduling orders up to the time of the final nonappearance, the case would not have been dismissed. Because of Erickson’s history of refusing to proceed, the district court did not abuse its discretion in dismissing his action.
Schirmer’s attorney moved this court for permission to participate in oral argument despite the death of his client. On the unique facts of this case, we permitted the attorney to present oral argument. Schirmer’s attorney also moves to strike portions of Erickson’s brief and appendix that are not part of the record. Erickson did not reply to the motion to strike. Because the items and references sought to be stricken are or pertain to material that was not before the district court, we grant that motion. See Minn. R. Civ. App. P. 110.01 (record consists of the papers filed in the district court, the exhibits, and the transcripts, if any).
Affirmed; motions granted.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 On appeal, Erickson’s counsel seeks to take the sole blame for Erickson’s failure to appear, citing counsel’s understanding, which turned out to be wrong, that the pretrial/settlement conference had been reset to a later date. Neither Schirmer nor the district court were confused, however: the scheduling order that had set the conference for August 28 was still in effect, and Schirmer’s counsel and a representative of Schirmer’s insurance company appeared, and the court was ready to proceed. Thus, an opportunity to settle the entire action, or at least resolve some of the outstanding issues, was lost.
 On appeal, Erickson moved to change the caption of the case and for other relief. Our decision renders that motion moot.
 Erickson also characterizes the issue as an appeal from the denial of a motion for continuance and as the denial of a motion made under Minn. R. Civ. P. 60.02(a). But Erickson did not move for a continuance at trial and did not cite Minn. R. Civ. P. 60.02(a) in his letter requesting reconsideration. In any event, neither would change the standard of review. See Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977) (“The granting of a continuance is a matter within the discretion of the trial court and its ruling will not be reversed absent a showing of clear abuse of discretion.”); Carter v. Anderson, 554 N.W.2d 110, 115 (Minn. App. 1996) (district court’s application of rule governing relief from judgment will not be reversed absent an abuse of discretion), review denied (Minn. Dec. 23, 1996).
 Specifically, Schirmer moves to strike the transcript of part two of the deposition, a list not submitted into evidence, and references to material not in the record. Schirmer also moves to strike the videotape of both parts of the IME doctor’s deposition, but that part of the motion is moot: no videotape was included with the record received by this court.