This opinion will be unpublished and

may not be cited except as provided by

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







Ali Dunham, et al.,





Darin Opperman,




Filed April 24, 2007

Affirmed in part, reversed in part, and remanded

Halbrooks, Judge



Hennepin County District Court

File No. 27-CV-04-006654



Jill Clark, Jill Clark, P.A., 2005 Aquila Avenue North, Golden Valley, MN 55427 (for appellants)


Andrew T. Shern, Chris Angell, Murnane Brandt, 30 East 7th Street, Suite 3200, St. Paul, MN 55101; and


Linda L. Holstein, Anh Le Kremer, Holstein Law Firm, 150 South 5th Street, Suite 370, Minneapolis, MN 55402 (for respondent)



            Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellants challenge four separate orders issued by the district court, arguing that the district court (1) erred when it dismissed their claim for tortious interference with contract, (2) abused its discretion when it denied their motion to compel, (3) abused its discretion when it dismissed their case with prejudice as a sanction for discovery violations and inappropriate conduct, and (4) erred when it denied their motion to disqualify.  Because we conclude that the district court did not abuse its discretion when it denied appellants’ motion to compel and did not err when it dismissed appellants’ claim for tortious interference with contract and denied their motion to disqualify, we affirm in part.  But because we conclude that the district court abused its discretion when it dismissed appellants’ claim with prejudice, we reverse in part and remand.   


            Appellants Debra Ali Dunham (Ali) and Audian Dunham (Audie) joined the Wayzata Country Club (WCC) as members in 1988.  In 2001, Ali discovered that her husband, Audie, was having an affair with Karen Roer, another WCC member.  After Ali told Roer’s husband about the affair, Roer allegedly began a “mission to destroy” Ali.  Ali complained that some of Roer’s friends, including respondent Darin Opperman, also made it their mission to damage Ali’s reputation and to get her kicked out of the WCC.

In August 2001, Roer obtained a restraining order against Ali, and on June 27, 2002, Ali was arrested at the WCC for violating the restraining order, after she allegedly called Roer a “slut” during a WCC event.  As a result of her arrest, the Wayzata city prosecutor brought criminal charges against Ali; in September 2002, the WCC held its own hearing regarding Ali’s alleged misconduct.  After hearing testimony from both Audie and Ali, as well as the Roers, the WCC board determined that it would wait until the conclusion of the criminal trial before it made any recommendations regarding the situation.  In October 2002, Ali was tried in criminal court for allegedly violating the harassment restraining order but was acquitted by a jury. 

Despite her acquittal, Ali and the entire Dunham family were expelled from the WCC on November 22, 2002.  In its expulsion letter to the Dunhams, the WCC board stated that it found “substantiation for the allegation” that Ali called Roer a “slut,” which constituted “willful misconduct under the Bylaws.”  The letter further stated that “[b]ased on this conclusion, and given prior misconduct as noted in previous correspondence and discussions between officials of the Club and you, the Board has determined that your expulsion from the Club is warranted.”

On May 4, 2004, the Dunhams brought suit against Opperman, alleging tortious interference with contract, defamation, conversion of personal property, negligent infliction of emotional distress, and civil conspiracy.[1]  The Dunhams filed an amended complaint on June 28, 2004, omitting the conversion claim.  The Dunhams now appeal from four separate orders of the district court. 

February 2, 2005 Order  

The Dunhams’ claim for defamation was based on the allegations contained in paragraph 5.3 of the amended complaint and three letters that Opperman wrote to the WCC board.  Paragraph 5.3 states:

                        It is also alleged that Opperman was responsible for working together with one or more other individuals to defame Dunham and lower her reputation in the community.  Dunhams have, in this early stage of this litigation, quoted as many statements as she can, but Dunhams need additional discovery in order to determine which statements were made (and their exact quotes) due to the plan acted upon by Opperman and other/s.  Dunhams allege that this is somewhat analogous to a fraud claim where the information is in the hands of the defendant/s and therefore cannot necessarily be fully articulated in this Complaint.  Dunhams are aware of defamation cases that cite a need to articulate the precise words of the defamatory statement in the Complaint, but allege that these facts (and particularly the allegation of a separate civil conspiracy claim in addition to defamation) warrant an opportunity to amend the Complaint to add specific statements.  Dunhams will amend this Complaint as soon as possible in this litigation.  Dunhams reserve the right to discovery, investigate and amend regarding allegations that Oppermand [sic] and/or other defendant/s, in concert, worked to portray Dunham in a false light (such as Dunham being a criminal defendant), in such a widespread manner that Dunham will literally be unable to repair her reputation or re-establish her reputation in the community.  In addition, Dunham reserve [sic] the right to amend to include allegations concerning false statements made by Opperman and/or other defendant/s in tortiously interfering with Dunham’s membership at the Club. 


The first letter written by Opperman, dated June 12, 2001, was delivered to WCC President Thomas Howard in order to “report an incident of conduct unbecoming a member.”  In the letter, Opperman stated that while she was eating dinner at the WCC with Roer and another individual on June 7, 2001, Ali approached their table, gestured with her middle finger toward Roer, and stated to Opperman and the other member, “You better hope she’s not sleeping with one of your husbands.”  Opperman stated that she was writing the letter “in the hope that the Board will address th[e] issue personally with Ms. Dunham and ask her to refrain from making inappropriate comments to club members and their children.”

The second letter written by Opperman, dated June 10, 2002, was delivered to WCC President Karl Reuter and accused Ali of “intimidating and harassing” her by making a point of “stopping her golf game . . . on the course in order to glare and point.”  Opperman also accused Ali of monitoring the number of times that respondent was golfing at the WCC per month.[2] 

Finally, on October 11, 2002, Opperman mailed a letter to Reuter and WCC Vice President Mark Eckerline, stating that Ali’s accusations at her criminal trial that Opperman harassed and intimidated her children were “an out and out lie,” and that she would “deal” with the accusations “in the appropriate forum at the appropriate time.” 

Opperman moved for dismissal of the allegations contained in paragraph 5.3 pursuant to Minn. R. Civ. P. 12, alleging that they were vague and not pleaded with sufficient specificity.  On February 2, 2005, the district court issued an order denying in part and granting in part Opperman’s motion to dismiss, concluding that paragraph 5.3 “fail[ed] to satisfy the required level of specificity,” as “[p]laintiff’s attempted reservation of claims based on future investigation, discovery, or a change in the law [wa]s not sufficient to overcome the clear deficiencies in the allegations contained in Paragraph 5.3.”   

Opperman also moved for summary judgment with regard to the three letters she sent to the WCC, which allegedly defamed Ali.  With regard to the first letter, Opperman argued that because the letter formed the basis for the district court’s issuance of the restraining order in 2001, the statements were “substantially true,” and thus not actionable.  The district court agreed, concluding that the statements contained in the letter did not “constitute actionable defamation” because “the substance of the statements [was] found to be true.”  Thus, the district court dismissed the Dunhams’ claim of defamation resulting from the June 12, 2001 letter.

With regard to the second letter, Opperman argued that summary judgment was appropriate because “the alleged defamatory statements were statements of opinion.”  But the district court disagreed, stating that “[t]he fact that one of the statements contained in the letter is prefaced with ‘I understand’ is not dispositive on the question of subjective opinion.”  Instead, the district court concluded that “[w]hen taken as a whole, the letter, and the specific statements contained therein, could be read as assertions of objective facts that convey a defamatory meaning.”  Thus, the district court denied Opperman’s motion for summary judgment with regard to the June 10, 2002 letter.

Finally, with regard to the third letter, Opperman argued that the “statements contained in th[e] letter [were] true as a matter of law” because the district court “determined [Ali] Dunham was not entitled to receive a restraining order against Karen Roer” based on those statements.  Conversely, the Dunhams asked the district court “to interpret the jury verdict in [Ali] Dunham’s criminal trial as a finding of ‘not guilty of calling Karen Roer a “slut” at the WCC’ or ‘that the precise factual scenario at issue in Opperman’s October 11, 2002 letter had already been tested in front of a jury.’”  But the district court found that both of these assertions “test[ed] the bounds of reason” and concluded that the determination regarding whether the allegations made by Ali at her trial were a lie “present[ed] [a] genuine issue[] for determination by the fact-finder.”  Thus, the district court also denied Opperman’s motion for summary judgment as to the October 11, 2002 letter.

Opperman also moved for dismissal of the Dunhams’ tortious-interference claim, arguing that where the same allegations support both a defamation and tortious-interference claim, the tortious-interference claim should be dismissed.  Relying on Wild v. Rarig, 302 Minn. 419, 234 N.W.2d 775 (1975), the district court dismissed the Dunhams’ tortious-interference claim, concluding that “the defamation claim encompasses the tortious interference claim (which may be an element of damages in the defamation action)” and that defamation provides a broader scope of recovery that might include, among other things, loss of business relationships. 

Further, the district court denied Opperman’s rule 12 motion to dismiss the Dunhams’ negligent-infliction-of-emotional-distress claim but granted Opperman’s motion to dismiss the civil-conspiracy claim under rule 12 because “the vague and conclusory allegations [were] not sufficient to state a claim upon which relief may be granted.”  Finally, the district court denied the Dunhams’ motion to strike and their rule 56 motion for continuance.

June 27, 2005 Order  

            Opperman’s second motion for summary judgment was scheduled to be heard by the district court on April 28, 2005.  On April 22, 2005, the Dunhams moved to compel discovery, requesting that their motion be heard at the same time as Opperman’s summary-judgment motion.  But the Dunhams did not serve an accompanying notice of motion with a hearing date.  Although the hearing was subsequently continued to May 3, 2005, due to the Dunhams’ counsel being ill, the district court denied the Dunhams’ motion to compel discovery as untimely because the motion “was not served and filed at least 14 days prior to April 28, 2005” and “was not brought in compliance with the Court’s Scheduling Order which provided that all non-dispositive motions be served and filed so as to be heard no later than April 29, 2005.”    

July 21, 2005 Order  

After the district court denied Opperman’s second motion for summary judgment, Opperman noticed the depositions of Ali for June 13, 2005, and Audie for June 14, 2005.  On the morning of June 13, approximately one hour before Ali’s deposition was to begin, the Dunhams’ counsel called Opperman’s counsel to cancel Ali’s deposition, stating that she had misread the notice and mistakenly believed that Ali’s deposition was to occur on Saturday, June 18, 2005.  On June 20, 2005, the district court held a telephone conference to discuss the rescheduling of Ali’s deposition.  Because the case was to be tried sometime during the district court’s three-week trial block beginning July 18, 2005, the district court told the parties that the depositions should be completed as soon as possible.  During the telephone conference, there was some discussion about scheduling the depositions on a Tuesday, and the district court was apprised of the fact that Ali had golf commitments on Tuesdays.  But the district court instructed that if Tuesdays worked for counsel, then the depositions would have to take place at that time and that Ali’s golf conflicts would not be considered for scheduling purposes.

            Opperman subsequently served notice of taking the videotaped deposition of Ali for 9:00 a.m. on Tuesday, July 5, 2005, giving the Dunhams two weeks’ notice of the date and time.  Audie’s deposition was noticed for 5:00 p.m. on July 5, 2005, after the completion of Ali’s deposition.  On Friday, July 1, 2005, the Dunhams’ counsel contacted Opperman’s counsel and requested that Audie’s rather than Ali’s deposition take place at 9:00 a.m. on the 5th because of a business commitment that Audie had during the time he was scheduled to be deposed.  Opperman’s counsel denied the Dunhams’ request.  The Dunhams’ counsel subsequently called the Dunhams on the morning of July 1, 2005, and left a message on their voicemail, notifying them that the request to switch Ali’s deposition time with Audie’s had been denied and that Ali should appear at her originally scheduled time of 9:00 a.m.  Audie claims that he did not receive the voicemail message until Sunday, July 3, 2005, and that he could not reach Ali at that time because she was “up north.” 

            At approximately 8:30 a.m. on July 5, 2005, Audie contacted the district court’s law clerk and informed the clerk that Ali was “up north,” could not be contacted, and consequently would not be able to attend her deposition scheduled for 9:00 a.m.  Audie also informed the law clerk that he would appear at 9:00 a.m. for his deposition and that Ali could be deposed after he was finished.  The district court subsequently found that, contrary to Audie’s assertion in his affidavit, the law clerk did not okay the scheduling change.  Instead, the law clerk informed Audie that the issue should be worked out by the attorneys involved and that he should not call the district court regarding such matters.

            When Ali did not appear for her deposition at 9:00 a.m. on July 5, 2005, counsel for both sides contacted the district court for a telephone conference.  Opperman’s counsel informed the district court that they had previously denied the Dunhams’ request to switch Ali and Audie’s deposition times and that Ali had failed to appear for her deposition at 9:00 a.m.  The Dunhams’ attorney told the district court that Ali was up north, could not be contacted on her cell phone, and that she would report immediately for the deposition when she returned between 11:00 a.m. and noon.  The district court instructed the parties to wait until Ali arrived and to commence with her deposition before deposing Audie.

            Ali eventually arrived for her deposition at 12:40 p.m. on July 5, 2005, and counsel began her deposition.  During the deposition, Ali lied under oath about where she had been at 9:00 a.m. that morning, stating “[e]xactly at nine I was probably outside of Melrose, Minnesota.”  The district court found that Ali continued to “lie[] repeatedly” when questioned about her whereabouts and activities the morning of July 5, when she should have been attending her deposition.  Specifically, when asked whether she had been on a golf course playing golf at 9:00 a.m., Ali responded, “That is not true,” and she “proceeded to fabricate a story about how she had been given an exception by the Minnesota Women’s Golf Association to submit a practice round score from the previous Friday as her tournament score.”  After being confronted by Opperman’s counsel with information indicating that she had posted a score on the morning of July 5 at Olympic Hills Golf Course, Ali untruthfully stated that she stopped by the golf course on her way to the deposition to turn in her Friday score, but maintained that she did not play a round of golf that morning.  Later, Ali lied again when she stated that although she did play some golf on the morning of July 5, she did not play all 18 holes, because she received a message from Audie that her failure to appear for her deposition at 9:00 a.m. had become an issue. 

            Opperman subsequently brought a motion for attorney fees and sanctions, arguing that the Dunhams’ case should be dismissed as a sanction for Ali lying under oath at her deposition and for failing to make herself available for her deposition on a “golf day” in direct contravention of the district court’s “order.”  The district court found that Ali’s decision “to play a round of golf on Tuesday, July 5, 2005 rather than appear as noticed for her deposition was intentional, and in flagrant disregard of the Court’s directive during the June 20th telephone conference.”  The district court further found that “[t]he decision of Ali and Audie Dunham to conceal the truth about Ms. Dunham’s non-appearance for her deposition as noticed was intentional and outrageous,” as “[b]oth Dunhams admit[ted] in their subsequent affidavits that they agreed Ms. Dunham should not ‘volunteer’ any information about her having played golf that morning.”  Finally, the district court stated that “[t]he Dunhams’ subsequent explanations for these occurrences [we]re totally lacking in credibility.”  Thus, the district court concluded that because the Dunhams “engaged in conduct that constitute[d] a fraud upon the Court and offend[ed] the basic principles underlying our judicial system . . . [s]uch extreme and outrageous behavior must be met with the most severe of sanctions—dismissal.”  The district court dismissed the Dunhams’ case with prejudice and ordered the Dunhams to pay Opperman $1,785 as reasonable costs and attorney fees. 

February 2, 2006 Order  

In September 2005, the Dunhams moved, inter alia, to disqualify the district court judge and to vacate all orders signed by the district court after July 6, 2005, including the district court’s dismissal of the Dunhams’ case.  Specifically, the Dunhams argued that the district court judge, who also presided over their lawsuit against the WCC, had evidenced a bias against them in their case against the WCC with regard to posttrial motions made in that case.  The Dunhams also alleged that the district court judge had engaged in ex parte communications with the Fourth Judicial District Chief Judge, a staff person from the jury room at the Hennepin County Government Center, and an unidentified juror, all following the WCC trial but prior to hearing the Dunhams’ posttrial motions. 

On December 9, 2005, the Dunhams’ attorney asked the district court to disclose information that she believed may be relevant to the question of disqualification so that the Dunhams could “articulate a precise motion to disqualify.”  But in a December 12, 2005 letter sent to counsel, the district court stated that because the Dunhams had never scheduled a hearing on their motion to disqualify, there were no motions pending before the district court, and thus no order would be forthcoming.  The Dunhams’ attorney sent the district court another letter, indicating her disappointment that the district court failed to respond to the Dunhams’ request for information related to the question of disqualification.  Relying on the Minnesota Supreme Court’s decision in State v. Dorsey, 701 N.W.2d 238 (Minn. 2005), the letter also asked the district court to make the requested disclosures and issue a ruling as to whether the district court judge would voluntarily recuse himself from the case.  On January 17, 2006, the Dunhams served an amended motion to disqualify that put the matter on for hearing on January 31, 2006.  The district court subsequently denied the Dunhams’ motion to disqualify.[3]   



            The Dunhams argue that the district court erred when it dismissed their claim of tortious interference with contract, contending that the district court’s determination that a party cannot claim both defamation and intentional interference with contract is unsupported by caselaw.  On appeal of a case dismissed for failure to state a claim on which relief can be granted, the only question before an appellate court is whether the complaint sets forth a legally sufficient claim for relief.  Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997).  Thus, we review do novo the legal sufficiency of the claims presented.  Alliance for Metro. Stability v. Metro. Council, 671 N.W.2d 905, 912 (Minn. App. 2003). 

The district court, relying on Wild v. Rarig, 302 Minn. 419, 234 N.W.2d 775 (1975), dismissed the Dunhams’ tortious-interference-with-contract claim, concluding that the Dunhams’ defamation claim encompassed the tortious-interference claim.  In Wild, the plaintiff brought a claim against the defendant alleging, inter alia, defamation and interference with business relationships.  302 Minn. at 423-24, 234 N.W.2d at 781.  One issue before the Minnesota Supreme Court on appeal was whether a two-year or a six-year statute of limitations should apply to plaintiff’s wrongful-interference-with-business-relationships claim when the claim was based on defendant’s alleged defamation of plaintiff.  Id. at 442, 234 N.W.2d at 790.  Defendants argued that the wrongful-interference claim should be barred by the two-year statute of limitations because the claim was essentially the same as plaintiff’s defamation claim “since the means allegedly used to interfere was defamation.”  Id. at 443, 234 N.W.2d at 790-91.  The supreme court concluded that while the six-year statute of limitations should generally apply to a claim for wrongful interference with business relationships, the claim for wrongful interference by means of defamation was “essentially a part of [plaintiff’s] cause of action for defamation,” and thus the two-year statute of limitations should be applied.  Id. at 447, 234 N.W.2d at 793.  The supreme court stated:

The defamation which is the means used to interfere with his business relationships action is the same defamation that [plaintiff] seeks to recover damages for under his defamation claim.  It seems to us that, regardless of what the suit is labeled, the thing done to cause any damage to [plaintiff] eventually stems from and grew out of the defamation.  Business interests may be impaired by false statements about the plaintiff which, because they adversely affect his reputation in the community, induce third persons not to enter into business relationships with him.  We feel this phase of the matter has crystallized into the law of defamation and is governed by the special rules which have developed in that field.  Defamation provides a much broader scope of recovery than wrongful interference with business relationships.  Under present defamation law, a victim of defamation may recover, under proper circumstances, general damages; special damages, including among others, loss of business relationships; and possibly punitive damages. 


Id. at 447, 234 N.W.2d at 793.  Thus, the supreme court applied the two-year statute of limitations to plaintiff’s interference-with-business-relations claim.  Id.

The Dunhams argue that Wild is distinguishable from the current case because the court in Wild “did not prohibit [two] theories of liability based on the same facts,” but instead simply found a similarity between the defamation and tortious-interference claims “for purposes of analyzing statute of limitations issues.”  We disagree.  The Dunhams’ amended complaint alleges in paragraphs 4.2 and 4.3 that Opperman “knew about and intentionally interfered with [the Dunhams’] contractual relationship without justification” when “Opperman wrote a June 12, 2001 letter to the WCC ‘in hope that the [WCC] w[ould] address this issue’ and have Dunham ‘forfeit her membership.’”  Because Opperman’s letters to the club, including the letter sent on June 12, 2001, also form the basis for the Dunhams’ defamation claim against Opperman, we conclude that the district court did not err when it determined that the tortious-interference claim is encompassed by the defamation claim and therefore should be dismissed. 


The Dunhams also contend that the district court abused its discretion when it denied their motion to compel, arguing that (1) Opperman was able to obtain discovery orders without including a notice of motion, motion, or memorandum and without having a hearing and (2) Opperman was granted an order allowing additional discovery after the April 28, 2005 deadline for non-dispositive motions.  In essence, the Dunhams’ argument is a claim that the district court has been unfair throughout discovery by favoring Opperman over the Dunhams.    

“[T]he [district court] judge has wide discretion to issue discovery orders and, absent clear abuse of that discretion, normally its order with respect thereto will not be disturbed.”  Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn. 1990); see also Minn. Twins P’ship v. Hatch, 592 N.W.2d 847, 850 (Minn. 1999) (citing Shetka).  Appellate courts give great deference to district court judges to determine the procedural calendar of a case.  Rice v. Perl, 320 N.W.2d 407, 412 (Minn. 1982).  Therefore, denial of a motion to continue discovery is reviewed for abuse of discretion.  Alliance for Metro. Stability, 671 N.W.2d at 919.  The district court must address two questions before granting a motion to continue or compel: (1) whether the plaintiff has been diligent in obtaining or seeking discovery; and (2) whether the plaintiff is seeking discovery in the good-faith belief that material facts will be uncovered or merely engaging in a fishing expedition.  Rice, 320 N.W.2d at 412; Hasan v. McDonald’s Corp., 377 N.W.2d 472, 475 (Minn. App. 1985).[4]   

            Minn. R. Gen. Pract. 115.04(a) provides:

                        No motion shall be heard until the moving party pays any required motion filing fee, serves a copy of the following documents on the other party or parties, and files the original with the court administrator at least 14 days prior to the hearing:

                                    (1) Notice of motion and motion;

                                    (2) Proposed order;

(3) Any affidavits and exhibits to be submitted in conjunction with the motion; and

(4) Any memorandum of law the party intends to submit.


Minn. R. Gen. Pract. 115.06 states that “[i]f the moving papers are not properly served and filed, the hearing may be cancelled by the court.  If responsive papers are not properly served and filed in a non-dispositive motion, the court may deem the motion unopposed and may grant the relief requested without a hearing.” 

Here, the district court denied the Dunhams’ motion because it was not brought in compliance with the scheduling order.  The scheduling order required that all nondispositive motions be heard by April 29, 2005.  And, therefore, in order to comply with the scheduling order and rule 115.04, motion papers had to be filed no later than April 15, 2005.  But the Dunhams’ motion to compel and their request for their motion to be heard at the same time as Opperman’s summary-judgment motion on April 28, 2005, was not filed until April 22, 2005.  Because the Dunhams were not diligent in seeking discovery, we conclude that the district court did not abuse its discretion when it denied the Dunhams’ motion on the ground that it was untimely. 


            The Dunhams argue that the district court abused its discretion when it dismissed their case with prejudice, contending that sanctions are only warranted in “extreme situations” where a “pattern” of abuse has taken place.  “[C]ourts are vested with considerable inherent judicial authority necessary to their vital function—the disposition of individual cases to deliver remedies for wrongs and justice freely and without purchase; completely and without denial; promptly and without delay, conformable to the laws.”  Patton v. Newmar Corp., 538 N.W.2d 116, 118 (Minn. 1995) (quotation omitted).  Thus, “[t]he task of determining what, if any, sanction is to be imposed is implicated by the broad authority provided the [district] court.”  Id. at 119.  A party “challenging the [district] court’s choice of a sanction has the difficult burden of convincing an appellate court that the [district] court abused its discretion—a burden which is met only when it is clear that no reasonable person would agree [with] the [district] court’s assessment of what sanctions are appropriate.”  Id. (third alteration in original) (quotation omitted) (holding that district court did not abuse its discretion when it dismissed plaintiff’s claim on summary judgment after excluding evidence as a sanction for its spoliation). 

            In addition to a district court’s broad inherent authority to determine whether and what sanctions should be imposed under certain circumstances, a district court also has express authority to sanction a party for discovery abuses under the Minnesota Rules of Civil Procedure.  Minn. R. Civ. P. 37.04 provides:

If a party . . . fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just, including any action authorized in Rule 37.02(b)(1), (2), and (3). 


Minn. R. Civ. P. 37.02(b)(3) states that a district court may issue an “order . . . dismissing the action or proceeding or any part thereof” if a party disobeys an order to provide or permit discovery.  In addition, “[a] party who willfully and without justification or excuse fails to comply with discovery orders . . . and continues to refuse to cooperate with the court forfeits the right to a trial on the merits.”  State by Humphrey v. Ri-Mel, Inc., 417 N.W.2d 102, 108-09 (Minn. App. 1987) (citation omitted), review denied (Minn. Feb. 17, 1988).  In determining whether a district court has abused its discretion in imposing discovery sanctions, appellate courts have relied on the following factors: (1) whether the court set a specific date for discovery, (2) whether the court warned the party about the possible sanction, (3) whether the failure to cooperate with discovery was an isolated event or part of a pattern, and (4) whether the failure to comply was willful or without justification.  Breza v. Schmitz, 311 Minn. 236, 237, 248 N.W.2d 921, 922 (1976) (willful or without justification); Beal v. Reinertson, 298 Minn. 542, 544, 215 N.W.2d 57, 58 (1974) (specific date for discovery); Sudheimer v. Sudheimer, 372 N.W.2d 792, 795 (Minn. App. 1985) (warning about possible sanctions); 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).  This court reviews a district court’s discovery sanctions for an abuse of discretion.  Chicago Greatwestern Office Condo. Ass’n v. Brooks, 427 N.W.2d 728, 730 (Minn. App. 1988). 

            The district court dismissed the Dunhams’ case as a sanction for (1) Ali choosing to play golf (in direct contravention of the district court’s instructions) instead of appearing for her deposition at 9:00 a.m. on July 5, 2005, and (2) Ali and Audie repeatedly lying under oath about Ali’s whereabouts on the morning of her deposition in an attempt to cover up the fact that she was playing golf.  But the Dunhams argue that the district court’s dismissal of their case as a sanction for their behavior was “too drastic,” as neither Ali nor Audie actually violated a court order.  The Dunhams further assert that while they wish they would have made different decisions, Ali’s trip up north and their decision not to be forthcoming about it were not direct lies and was “hardly the type of outrageous conduct that warrants dismissal of the entire case.”  The Dunhams further justify their conduct by claiming that Opperman and her husband, Vance Opperman, were also not forthcoming in their depositions and that members of the WCC lied under oath at trial in the Dunhams’ case against the WCC without any consequences. 

Two Minnesota cases are particularly relevant to our analysis of this issue.  In Williams, plaintiffs Williams and Jones brought suit against defendants alleging, inter alia, that defendants had conspired with a judge in order to infringe upon their rights.  355 N.W.2d at 479.  Defendants’ counsel noticed the depositions of both plaintiffs, and when the plaintiffs claimed that they did not receive notice, defendants renoticed the depositions for a few weeks later.  Id.  Plaintiffs again failed to appear for their depositions and, instead, moved for a protective order to delay or prevent the taking of depositions.  Id.  The district court denied plaintiffs’ motion and determined that plaintiffs should participate in discovery.  Id.  Defendants again noticed the depositions of both plaintiffs, informing them that failure to appear could result in the dismissal of their case.  Id.  Nonetheless, only Jones appeared for his deposition, as Williams again refused to attend the deposition and sought another protective order.  Id.  As a result, the district court dismissed Williams’s complaint.  Id.  On appeal, this court affirmed the district court’s dismissal of Williams’s case, reasoning that because Williams had a history of refusing to appear at depositions, had been dismissed from an earlier lawsuit for a similar reason, and had been warned of the consequences of missing the deposition, the district court did not err by dismissing Williams’s case as a sanction for his failure to cooperate in discovery.  Id. at 480.

Similarly, in Breza, plaintiff brought an action after suffering personal injuries in a motor-vehicle accident.  311 Minn. at 236, 248 N.W.2d at 922.  After holding a pretrial conference on various motions, the district court issued an order compelling plaintiff to answer defendants’ interrogatories and to submit to oral deposition.  Id.  Plaintiff’s action was subsequently dismissed with prejudice by the district court upon defendants’ motion when plaintiff failed to comply with the district court’s order.  Id.  The Minnesota Supreme Court affirmed the district court’s dismissal of plaintiff’s action, stating that plaintiff “forfeited her right to a trial of her case on the merits” when she “willfully and without justification or excuse refused to comply with discovery orders and deliberately and in bad faith, with the intent to delay the trial, continued to refuse to cooperate with the court and defendants’ counsel to bring the case to a prompt and expeditious conclusion.”  Id. at 237, 248 N.W.2d at 922 (quotation marks removed); see also O’Neil v. Corrick, 307 Minn. 497, 497-98, 239 N.W.2d 230, 230 (1976) (concluding that the district court “properly dismissed plaintiff’s action and granted defendants summary judgment” where “[p]laintiff failed to comply with an order that he either provide full and complete answers to written interrogatories within 30 days or have his action dismissed”). 

But these cases are distinguishable from the facts before us.  Here, although the district court instructed the parties to take the Dunhams’ depositions as soon as possible and also warned Ali that her golf conflicts should not be considered for scheduling purposes, the district court did not actually order Ali to attend her deposition on a certain date and time.  In addition, neither the district court nor Opperman’s counsel warned the Dunhams that their failure to attend the depositions at the times noticed would lead to dismissal of their claim.  Further, the record indicates that this was the first time that either of the Dunhams had failed to cooperate with discovery or had lied or attempted to mislead opposing counsel or the court. 

We view this as a close case.  We understand and even sympathize with the district court’s frustration and agree that the Dunhams’ conduct, including their deliberate attempt to mislead both Opperman’s counsel and the district court, is very disturbing.  We are further troubled by the Dunhams’ failure to admit even now that their lies and misdirection were intentional.  But while we reaffirm our deference to the district court’s authority to craft sanctions, we must also accord weight to precedent, holding that dismissal is only an appropriate sanction when exceptional circumstances are present.  And, in our review of the caselaw, we have not found a case in which dismissal of all claims—the ultimate sanction—was ordered and upheld on appeal without a prior warning or violation of a specific court order.

For example, in Beal, plaintiff refused at a pretrial conference to turn over his income tax returns for review.  298 Minn. at 543, 215 N.W.2d at 58.  The district court ordered that plaintiff produce the tax returns, but plaintiff did not respond to requests for the tax returns and refused to produce the returns at his deposition.  Id.  The district court subsequently dismissed plaintiff’s claim with prejudice.  Id.  On appeal, the Minnesota Supreme Court determined that the district court’s decision to dismiss plaintiff’s action was “too drastic,” and thus reversed and remanded the case, ordering plaintiff to comply with the pretrial discovery order within 10 days from the date of its decision and stating that if plaintiff failed to comply, the district court should dismiss the case with prejudice.  Id. at 544, 215 N.W.2d at 59.  In doing so, the court noted its statement in Firoved v. Gen. Motors Corp., 277 Minn. 278, 283-84, 152 N.W.2d 364, 368 (1976), that

[a]n order of dismissal on procedural grounds runs counter to the primary objective of the law to dispose of cases on the merits.  Since a dismissal with prejudice operates as an adjudication on the merits, it is the most punitive sanction which can be imposed for noncompliance with the rules or order of the court or for failure to prosecute.  It should therefore be granted only under exceptional circumstances.  The primary factor to be considered in determining whether to grant a dismissal with or without prejudice is the prejudicial effect of the order upon the parties to the action, although under extraordinary circumstances a dismissal with prejudice might be justified even though no prejudice to defendant is shown.  Obviously, the prejudice to plaintiff of such a dismissal is certain and usually permanent.  As to defendant, the ordinary expense and inconvenience of preparation and readiness for trial, which can be adequately compensated by the allowance of costs, attorney’s fees, or the imposition of other reasonable conditions, are not prejudice of the character which would justify either a refusal to permit plaintiff to dismiss without prejudice or a dismissal with prejudice.  The defense has the burden of showing particular prejudice of such a character that some substantial right or advantage will be lost or endangered if plaintiff is permitted to dismiss and reinstitute the action.  Such prejudice should not be presumed nor inferred from the mere fact of delay. 


Beal, 298 Minn. at 543-44, 215 N.W.2d at 58. 

Here, Ali’s failure to attend her deposition at the scheduled time and the Dunhams’ subsequent conduct, although very troubling, did not go to the merits of the case.  Accordingly, we conclude that the circumstances were not so “exceptional” as to warrant dismissal of the Dunhams’ case, and thus that the district court abused its discretion when it dismissed the Dunhams’ claim with prejudice.  See Kmart Corp. v. County of Becker, 639 N.W.2d 856, 859 n.2 (Minn. 2002) (noting that dismissal with prejudice is the most extreme sanction available and should be invoked “only under exceptional circumstances”).  On remand, we note that the district court has discretion to order further sanctions, short of dismissal, if it deems it appropriate.


            Finally, the Dunhams argue that the district court violated the Canons of Judicial Ethics by talking to the Fourth Judicial District courthouse staff and with a juror in the WCC case and thus should have disqualified itself and vacated its dismissal of the Dunhams’ claims.  The district court’s refusal to set aside a dismissal can only be reversed on appeal if the refusal is an abuse of the district court’s judicial discretion.  Butkovich v. O’Leary, 303 Minn. 535, 536, 225 N.W.2d 847, 849 (Minn. 1975).  But “[w]hether a judge has violated the Code of Judicial Conduct is a question of law, which we review de novo.”  State v. Dorsey, 701 N.W.2d 238, 246 (Minn. 2005).  Judges must be sensitive to the appearance of partiality and should take measures necessary “to assure that litigants have no cause to think their case is not being fairly judged.”  McClelland v. McClelland, 359 N.W.2d 7, 11 (Minn. 1984).  Disqualifying bias or prejudice “must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from her participation in the case.”  In re Welfare of D.L., 479 N.W.2d 408, 415 (Minn. App. 1991), aff’d, 486 N.W.2d 375 (Minn. 1992).  “[A]dverse rulings are not a basis for imputing bias to a judge.”  Ag Servs. of Am., Inc. v. Schroeder, 693 N.W.2d 227, 236-37 (Minn. App. 2005). 

Minn. R. Civ. P. 60.02 states that “[o]n motion and upon such terms as are just, the court may relieve a party . . . 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: . . . (f) [a]ny other reason justifying relief from the operation of the judgment.”  Minn. R. Civ. P. 63.03 provides that “[a] judge or judicial officer who has presided at a motion or other proceeding or who is assigned by the Chief Justice of the Minnesota Supreme Court may not be removed except upon an affirmative showing of prejudice on the part of the judge or judicial officer.”  See also Matson v. Matson, 638 N.W.2d 462, 464 (Minn. App. 2002) (affirming district court’s denial of motion for recusal and noting that under rule 63.03 a party seeking to remove a judge is required to make an affirmative showing of the judge’s prejudice or bias after that judge has already presided over a proceeding in the action). 

            The Dunhams state that they have a constitutional right to an impartial judge, but they fail to articulate how or why the district court judge violated their constitutional right.  The Dunhams cite Powell v. Anderson, 660 N.W.2d 107 (Minn. 2003), and Dorsey for the proposition that a violation of the Canons of Judicial Ethics may require a judge to disqualify himself or herself and to vacate earlier decisions. 

            Canon 3D(1) of the Minnesota Code of Judicial Conduct provides that “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where . . . the judge has a personal bias or prejudice concerning a party or a party’s lawyer.”  Further, the Advisory Committee’s Commentary to Canon 3D(1) explains that

[u]nder this rule, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless whether any of the specific rules in Section 3D(1) apply.


A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.


Thus, “it is possible that a judge with judicially-acquired bias or prejudice concerning a party could be required to recuse herself if the bias or prejudice is such that the judge’s impartiality is subject to reasonable question.”  Dorsey, 701 N.W.2d at 248.  “When reviewing a judge’s decision not to disqualify herself, we must make an objective examination of whether the judge’s impartiality could reasonably be questioned.”  Id.  But “judges are presumed to have the ability to set aside ‘nonpersonal’ knowledge and make decisions based solely on the merits of cases before them.”  Id. at 249.  Moreover, “the requirement that a judge must disqualify herself if she ‘has personal knowledge of disputed evidentiary facts’ is a narrow prohibition,” as “personal knowledge . . . does not include the vast realm of general knowledge that a judge acquires in her day-to-day life as a judge and citizen.”  Id. at 247 (footnote omitted).  Disqualification of a judge may be based upon the Code of Judicial Conduct, and a judge’s failure to disqualify himself or herself may require the judge’s decision to be vacated.  Powell, 660 N.W.2d at 115-16, 121. 

            In this case, the Dunhams fail to articulate any specific reason why the district court judge should be disqualified.  While the Dunhams state that the district court judge communicated with a staff person at the Hennepin County Government Center and an unidentified juror, as well as the Chief Judge of the Fourth Judicial District, there is no evidence in the record to support the Dunhams’ argument that the district court had a judicially acquired bias or prejudice concerning either party or that the district court’s impartiality should be questioned.  Therefore, we conclude that the district court did not err when it denied the Dunhams’ motion to disqualify.

            Affirmed in part, reversed in part, and remanded.

[1] Ali also brought an action against Roer, alleging intentional infliction of emotional distress, malicious prosecution, abuse of process, defamation, intentional interference with contract, and conversion, and an action against the WCC, alleging that she was expelled from the WCC because she challenged the WCC’s allegedly discriminatory policies and practices relating to dress code and gender-specific golf tournaments.  The Dunhams’ motion to consolidate the three lawsuits was denied on July 14, 2004.  On May 28, 2004, the district court granted Roer’s motion for summary judgment, dismissing all claims brought by Ali against Roer.  The dismissal of Ali’s claims against Roer was affirmed by this court in Dunham v. Roer, 708 N.W.2d 552, 573 (Minn. App. 2006), review denied (Minn. Mar. 28, 2006).  The Dunhams’ lawsuit against the WCC proceeded to a bifurcated trial; the statutory discrimination claims were tried by the district court and the common-law claims were tried by a jury.  On May 20, 2005, the jury issued its verdict denying the Dunhams any recovery, and on July 6, 2005, the district court followed suit.  This court affirmed in Dunham v. Wayzata Country Club, No. A05-1784 (Minn. App. Sept. 19, 2006), review denied (Minn. Dec. 12, 2006).

[2] As a “wait member,” Opperman could only play two rounds of 18 holes or four rounds of 9 holes per month plus one round of golf as a guest of a full golf member.

[3] On July 7, 2005, at a hearing on the Dunhams’ posttrial motions in the WCC case, the district court explained that its communications were specifically in response to concerns relayed by jurors who had been contacted by the Dunhams’ counsel after the WCC trial was completed.

[4] Opperman contends that the supreme court’s decision in Rice applies only to continuances and not motions to compel.  But this court has applied the two-prong test articulated in Rice to cases where a party sought a motion to compel, such as in the unpublished decision Kimmel v. Twp. of Ravenna, No. A05-362, 2005 WL 3372716, at *7 (Minn. App. Dec. 13, 2005), review denied (Minn. Feb. 22, 2006).