This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Omar Mmubango,



National School Bus Service,


Filed August 5, 1997


Crippen, Judge

Ramsey County District Court

File No. C8966025

Omar Mmubango, Apartment 301, 2712 Pillsbury Avenue South, Minneapolis, MN 55408-1562 (Appellant Pro Se)

Mark C. Kruger, Gray, Plant, Mooty, Mooty & Bennett, P.A., 3400 City Center, 33 South Sixth Street, Minneapolis, MN 55402 (for Respondent)

Considered and decided by Crippen, Presiding Judge, Toussaint, Chief Judge, and Willis, Judge.



The trial court dismissed appellant's employment discrimination claims on the ground that they were time-barred by the applicable statute of limitations. Minn. Stat. § 363.06, subd. 3 (1996). On appeal of this decision, we affirm.


In August 1993, eleven months after he was employed, appellant Omar Mmubango resigned from his job with respondent National School Bus Service. This was two months after his pro se suit that alleged respondent had violated the Minnesota Human Rights Act by (a) racial discrimination in determining terms and conditions of employment, (b) hostile workplace discrimination, and (c) reprisal discrimination. Appellant's suit, filed in Ramsey County, was dismissed on summary judgment. He appealed pro se, and this court reversed the dismissal of the race discrimination claim but affirmed the court's dismissal of the other claims. Mmubango v. National Sch. Bus Serv., Inc., No. C4-94-1839 (Minn. App. Mar. 14, 1995).

On remand and just prior to trial, appellant sought a continuance in order to find replacement counsel. The trial court denied his motion for a continuance and appellant informed the court that he was not ready to proceed at trial. Respondent then moved for dismissal of appellant's case. The trial court dismissed appellant's remaining claim without prejudice for "failure to proceed."

Appellant subsequently filed his second, third, and fourth identical lawsuits against respondent. Two were filed in Hennepin County and were dismissed on the grounds that the claims were time-barred by the statute of limitations and barred by the doctrine of res judicata. In the instant action, appellant's fourth suit, appellant once again alleges the same discrimination claims. A Ramsey County trial court dismissed his complaint as time-barred by the applicable statute of limitations.

Appellant contends on appeal that he is entitled to trial proceedings on the issue previously preserved for trial when this court remanded his first suit in 1995. He does not address the dismissal of his retaliation and hostile work environment claims, which are barred by reason of this court's final action on the merits of these claims.


This court need not give deference to a trial court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984). Once facts underlying the issue are determined, the application of the statute of limitations in Minn. Stat. § 363.06, subd. 3 (1996), raises only a legal issue.

Minn. Stat. § 363.06, subd. 3 (1996), requires that a "claim of an unfair discriminatory practice" be brought as a civil action "within one year after the occurrence of the practice." Appellant resigned his employment from respondent in August 1993. Accordingly, the one-year limitation period expired in August 1994 at the latest. Appellant's first suit, commenced before he left his job, was dismissed without prejudice in December 1995. His subsequent suits were initiated after expiration of the limitation period in 1994.

Appellant argues that he filed his fourth case within the one-year limitation period because his first action was filed in timely fashion. The commencement of an action arrests the running of the applicable statute of limitations. DeMars v. Robinson King Floors, Inc., 256 N.W.2d 501, 505 (Minn. 1977). But appellant's 1993 suit was dismissed without a determination on the merits of the single issue not resolved earlier.[1] The correctness of that dismissal decision is not before us on this appeal. Absent a statute to the contrary, such a dismissal eliminates the suit just as if it had never been filed and the statute of limitations had never been tolled. Id. (citing Holmgren v. Isaacson, 104 Minn. 84, 116 N.W. 205 (1908)). The limitations period is suspended during the commencement of an action so long as the action is "prosecuted to final judgment." Holmgren, 104 Minn. at 87, 116 N.W. at 206. Conversely, if the case is dismissed without a determination on the merits, the limitations period is not considered to have been suspended. Id.[2]

Although Minn. Stat. § 363.06, subd. 3, provides that the running of the one-year limitation period is suspended during certain dispute resolution efforts, there is no such provision suspending the period once the case is filed in district court. The instant trial court's dismissal of appellant's complaint must be affirmed.


[ ]1 Although not citing a rule at the December 1995 hearing or in its order and memorandum, the trial court in the first action appears to have dismissed appellant's remaining claim pursuant to Minn. R. Civ. P. 41.02(a) for "failure to prosecute." Although involuntary dismissal pursuant to Rule 41.02(a) "operates as" an adjudication on the merits, Minn. R. Civ. P. 41.02(c), it does not involve a determination of the merits. See Lampert Lumber Co. v. Joyce, 405 N.W.2d 423, 425 (Minn. 1987) (stating rule 41.02(a) permits dismissal for trial management reasons, not for lack of substantive merits of a claim). In this case, there was no trial, and the dismissal was based on appellant's inability to proceed on the day of the trial.

[ ]2 Also, if the 1995 dismissal were viewed as a final judgment on the merits, a different analysis, premised on the doctrine of res judicata, would bar appellant's instant suit.