This opinion will be unpublished and

may not be cited except as provided by

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




Robert G. Wicker,



Roxanne Laughton,


Filed September 2, 1997


Harten, Judge

Ramsey County District Court

File No. C0-95-10723

Robert G. Wicker, 702 Wilson Avenue, St. Paul, MN 55106 (appellant pro se)

Richard N. Newcome, Richard N. Newcome and R. J. Newcome, P.A., Energy Park Financial Center, 1360 Energy Park Drive, #150, St. Paul, MN 55108-5252 (for respondent)

Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Harten, Judge.



The district court dismissed with prejudice appellant Robert G. Wicker's claim after he repeatedly failed to comply with discovery requests, court orders, and court-imposed sanctions. Because the district court's dismissal was not an abuse of discretion, we affirm.


Wicker's underlying cause of action is based on an automobile accident that occurred nearly six years prior to his June 1995 service of a summons and complaint on respondent Roxanne Laughton. From August 1995 through September 1996, Laughton and the district court unsuccessfully attempted to compel Wicker to comply with discovery requests, court orders, and court-imposed monetary sanctions. Throughout the course of the litigation, Laughton was obliged to take formal action in an effort to compel Wicker's compliance. She also attempted to dismiss the suit through summary judgment. While the district court refused to dismiss the case on several occasions, nearly all of its orders contained specific provisions to secure Wicker's compliance and ensure the timely prosecution of his claim. The orders sufficiently notified Wicker of what he needed to do and when. Additionally, he was specifically warned that his failure to comply with court orders would result in monetary sanctions or dismissal.

Throughout the time this case was pending in the district court, despite Wicker's numerous questionable excuses for noncompliance, the district court displayed great patience in its effort to allow Wicker his day in court. Finally, however, after almost one year of Wicker's noncompliance, the district court dismissed Wicker's case with prejudice. This appeal followed.


A broad measure of discretion is left to district courts to ensure that inexcusable and unnecessary delays do not disrupt the timely administration of justice. Firoved v. General Motors Corp., 277 Minn. 278, 284, 152 N.W.2d 364, 368 (1967). We review a district court's dismissal under an abuse of discretion standard, and the appellant will meet that burden "only when it is clear that no reasonable person would agree [with] the trial court's assessment of what sanctions [were] appropriate." Patton v. Newmar Corp., 538 N.W.2d 116, 119 (Minn. 1995) (quoting Marrocco v. General Motors Corp., 966 F.2d 220, 223 (7th Cir. 1992)). Before being sanctioned for failure to cooperate with discovery, a party must know the date by which compliance is required and must be warned of the potential sanctions for noncompliance. Jadwin v. City of Dayton, 379 N.W.2d 194, 196-97 (Minn. App. 1985).

In a case similar to the instant case, the supreme court upheld a dismissal under Minn. R. Civ. P. 37.02 when the plaintiff refused to comply with discovery orders. Breza v. Schmitz, 311 Minn. 236, 237, 248 N.W.2d 921, 922 (1976). The comparisons between this case and Breza are numerous. Both Wicker and Breza were pro se plaintiffs. See id. at 236, 248 N.W.2d at 922. Both delayed prosecuting their actions and the defending parties were forced to seek judicial orders compelling discovery. See id. In both cases, with trial imminent, orders were issued to compel the plaintiffs to comply with essential discovery requirements: Wicker was ordered to pay for missing an earlier independent medical examination (IME) and to undergo an IME before trial; Breza was ordered to appear for deposition. See id. Finally, both were clearly aware that failure to comply with the orders would occasion dismissal. See id. The Breza court, in affirming the dismissal, stated:

Despite the painstaking efforts of the trial court and defendants' counsel to afford plaintiff all possible assistance and courtesies, * * * "[p]laintiff has wilfully 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 as directed by this court and thereby "forfeited her right to a trial of her case on the merits."

Id. at 237, 248 N.W.2d at 922 (quoting trial court's orders).

Here, the district court gave Wicker numerous opportunities to comply with its orders before dismissing the case. First, despite a court order that included specific instructions and a specific date, Wicker did not timely present evidence from his own physician to substantiate his alleged permanent disability. The district court allowed him to submit it late. Second, Wicker did not undergo an IME before the close of discovery on August 15, 1996, despite court orders in December 1995, April 1996, and August 1996. The district court allowed him to reschedule. Third, Wicker was ordered to pay $500 in attorney fees on or before September 15, 1996. He again failed to comply, choosing instead to pay on September 16, 1996. Once again, the district court withstood the temptation to dismiss. The final dereliction that led to dismissal was Wicker's failure to pay sanctions for the missed August 15, 1996, IME. Wicker had been warned that failure to pay sanctions on time would result in dismissal. The court dismissed the case when Wicker did not pay on time.

Wicker's conduct resembles that of Breza and justifies a similar forfeiture of right to a trial. The district court orders clarified for Wicker what he was to do, by what date, and what the consequences would be if he failed. See Jadwin, 379 N.W.2d at 196-97 (elements that order compelling discovery should contain). Moreover, Wicker's failure to comply with sanctions imposed for the missed IME was part of an unbroken pattern and supports a reasonable conclusion that Wicker was purposefully delaying. See Williams v. Grand Lodge of Freemasonry, 355 N.W.2d 477, 480 (Minn. App. 1984) (warning may be supplied by experience and sanctions may be addressed to a history of behavior rather than a specific incident), review denied (Minn. Dec. 20, 1984).

Considering Wicker's repeated abuse of judicial process in the instant case, we conclude that the district court did not err by dismissing Wicker's cause of action with prejudice.