This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2006).






Richard Heil,


Minnesota Racing Commission, et al.,


Filed April 10, 2007


Stoneburner, Judge


Scott County District Court

File No. C05-00488


Richard Heil, Box 581981, Minneapolis, MN 55458-1981 (pro se appellant)


Lori Swanson, Attorney General, Gary R. Cunningham, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)


††††††††††† Considered and decided by Minge, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

U N P U B L I S H E D† O P I N I O N




††††††††††† Appellant challenges the dismissal of his pro se action against respondents as a sanction for failing to respond to the district courtís order compelling discovery.† Because the district court did not abuse its discretion by dismissing appellantís action, we affirm.



††††††††††† In January 2005, appellant Richard Heil sued respondents Minnesota Racing Commission, its executive director, and its chief security officer, alleging that respondents unlawfully denied him access to data regarding the results of an examination he took to obtain a horse trainerís license, wrongfully refused to license him as a trainer, wrongfully denied him access to Canterbury Park, and defamed him.† Heil was represented by counsel when he initiated the lawsuit.

††††††††††† In mid-June 2005, respondents served a number of interrogatories and a request for production of documents on Heil and noticed Heilís deposition for June 27, 2005.

On June 23, 2005, Heil telephoned respondentsí counsel and cancelled the deposition, stating that he had discharged his attorney and a new attorney would be contacting respondentsí counsel.† On July 26, 2005, Heilís new attorney wrote to respondentsí attorney that he anticipated obtaining discovery responses within two weeks.† When no discovery was received, respondentsí attorney wrote to Heilís attorney in August and September to remind him that discovery was due and to confirm that the attorney was still representing Heil.

††††††††††† During this time, Heil telephoned respondentsí attorney repeatedly to discuss scheduling matters.† When Heil was told that respondentsí attorney could not discuss the case directly with him because he was represented, Heil was ambiguous about whether he was still represented by counsel.

††††††††††† On September 29, 2005, respondents moved the district court to extend the scheduling deadlines and to order Heil to declare in writing whether he was represented by counsel or acting pro se.† The district court granted the motion, and in November 2005, Heil filed a certificate of representation stating that he was representing himself ďuntil he is able to find an attorney that will not operate under the influence of [respondents].Ē

††††††††††† In October 2005, Heil filed an ďaffidavitĒ in district court, reiterating his claim that his attorneys had been improperly influenced by respondents.† Heil asserted that the state was conspiring with unnamed individuals to commit acts of theft and vandalism against him in an attempt to deprive him of his resources and disadvantage him in the case.† The record does not show that this document was served on respondents.

††††††††††† On November 17, 2005, Heil responded to discovery, but he gave incomplete answers to some questions and refused to answer other questions that he deemed irrelevant.† Heil did not produce any of the requested documents.† Heil did not challenge the discovery requests in district court or seek a protective order concerning discovery.† Respondents informed Heil by letter that his answers were inadequate and that he had until December 1, 2005, to fully comply with discovery requests.† Heil did not respond.

††††††††††† On December 22, 2005, respondents moved to compel discovery.† Heil was served by mail but did not respond to the motion or appear at the motion hearing.† The district court granted the motion and ordered Heil to provide full and complete responses to discovery within 14 days.† Heil did not respond to the order.

††††††††††† In February 2006, respondents moved to dismiss Heilís action under Minn. R. Civ. P. 37.02 (b)(3), as a sanction for failure to respond to discovery.† Heil was served by mail but failed to respond or appear at the motion hearing on March 7, 2006.† The district court granted the motion and dismissed Heilís action, noting Heilís lengthy history of non-responsiveness and concluding that it would be detrimental to respondents to require them to continue spending time and resources preparing for trial.† Three days after the order, Heil sent the district court a hand-written note in which he claimed that he did not receive the motion papers, that certain things were being done to him to unbalance and disrupt his life, and that he intended to appeal the dismissal.† This appeal followed.



The district court has authority to impose sanctions on a party who fails to comply with an order compelling discovery.† Minn. R. Civ. P. 37.02.† Dismissal may be an appropriate sanction against a party who willfully, without justification or excuse, and with intent to delay trial fails to comply with discovery orders or refuses to cooperate with the court and counsel to resolve the case promptly and expeditiously.† Breza v. Schmitz, 311 Minn. 236, 237, 248 N.W.2d 921, 922 (1976).† Courts also consider the extent of the noncompliance, the reasons for delay, the motivation for it, and whether the party being sanctioned engaged in a pattern of misconduct.† Firoved v. Gen. Motors Corp., 277 Minn. 278, 283-84, 152 N.W.2d 364, 368-69 (1967); Williams v. Grand Lodge of Freemasonry AF & AM, 355 N.W.2d 477, 480 (Minn. App. 1984), review denied (Minn. Dec. 20, 1984).† The primary consideration is the prejudicial effect on the parties.† Firoved, 277 Minn. at 283, 152 N.W.2d at 368.†

This court reviews a district courtís discovery sanction for an abuse of discretion.† Chicago Greatwestern Office Condo. Assín v. Brooks, 427 N.W.2d 728, 730 (Minn. App. 1988).† On review of a dismissal order, this court views the record in a light most favorable to the district courtís order.† Reichert v. Union Fidelity Life Ins. Co., 360 N.W.2d 664, 667 (Minn. App. 1985).†

In this case, Heil continually delayed the proceedings.† He cancelled his deposition, he made ambiguous statements for months about his representation, he did not object to respondentsí discovery requests or seek a protective order from the district court under discovery rules, and he provided incomplete responses to discovery.† Heil did not respond to the motion to compel discovery, the order to provide discovery, or the motion to dismiss.

Heil argues dismissal was inappropriate because he did not have notice of the motion hearings.† He asserts that his mail was ďtampered with on many occasionsĒ and suggests that this was a deliberate attempt by ďthe stateĒ to prevent him from responding to the motions.† But other than his bald assertions, there is nothing in the record to support Heilís claims that his mail was tampered with.

Minn. R. Civ. P. 5.02 authorizes service of a motion and notice of motion by mail.† Service is complete on mailing.† Id.† The longstanding rule is that a letter properly addressed, with postage prepaid, and deposited in the United States mails raises a presumption that it reached its destination in the usual course of mail, but it is not conclusive proof that the letter reached its proper address.† Outcault Advertising Co. v. Farmers and Merchants State Bank of Greenbush, 151 Minn. 500, 501, 187 N.W. 514, 514 (1922).† Proof of mailing is prima facie evidence that the letter was received by the addressee.† Id.† In this case, the record contains affidavits of service establishing that Heil was properly served with all required notices by mail.† Likewise, notices of the district courtís orders granting respondentsí motions were mailed to Heilís address as required by Minn. R. Civ. P. 77.04.† The burden was therefore on Heil to prove that he did not receive proper notice.† Heil has failed to adequately rebut the presumption that he was properly served.

Heil complains that the district court should have investigated the claims in his ex parte affidavit that his mail was being tampered with and should have inquired about notice when Heil did not appear at the hearing on respondentsí motion to dismiss.† But Heil acknowledges that the district court found his claims ďunsubstantiated,Ē and he did not attempt to provide any additional evidence for the court to consider.† The district court did not abuse its discretion by not taking action sua sponte on Heilís unsubstantiated ex parte complaints.

The case was dismissed 14 months after it was filed.† During that time, respondents had to request scheduling extensions as a result of Heilís actions.† And at the time of dismissal, respondents had yet to receive any meaningful responses to discovery.† The district court did not abuse its discretion in concluding that ďit would be detrimental to [respondents] to require them to continue expending time and resources for the investigation and preparation of this case for trial.Ē

††††††††††† Heil raises several issues unrelated to the issue on appeal.† He complains that (1) his settlement offers were not properly conveyed to the correct party, and the executive director of the racing commission should not have had decision-making authority regarding the lawsuit; (2) discovery requests were irrelevant and harassing; and (3) an order obtained by respondents put him at a disadvantage in the lawsuit by preventing his access to Canterbury Park.† None of these issues was raised in the district court, and we therefore decline to address them.† Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1998) (stating appellate courts will not consider on appeal issues not raised and litigated below).

††††††††††† Affirmed.