This opinion will be unpublished and

may not be cited except as provided by

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




Nyleen Mullally,



City of Minneapolis,


Filed November 4, 1997


Klaphake, Judge

Hennepin County District Court

File No. 964185

Andrea F. Rubenstein, 120 South Sixth Street, 812 One Financial Plaza, Minneapolis, MN 55402 (for Appellant)

Jay M. Heffern, City Attorney, Joseph M. LaBat, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402-2453 (for Respondent)

Considered and decided by Peterson, Presiding Judge, Klaphake, Judge, and Davies, Judge.



Appellant Nyleen Mullally sued her former employer, respondent City of Minneapolis (city), after her temporary position was eliminated and she was laid-off. Her complaint alleged breach of contract and other claims and sought money damages and

reinstatement "with full pay, benefits and other incidents of employment to include permanent civil service status and an appropriate date of seniority."

On April 18, 1996, the district court denied Mullally's motion for a temporary restraining order to enjoin the city from hiring another employee to fill her former position. The court further concluded that the labor union representing city employees was a necessary party to the action and that the matter would be continued until the union was joined. A scheduling order entered in March 1996 required that parties be joined by May 6, 1996, and warned that failure to comply would result in appropriate sanctions, including dismissal.

Rather than joining the union, Mullally brought a separate action against the union alleging breach of its duty to provide fair representation. In August 1996, a different district court judge dismissed that action for untimeliness and for failure to state a claim for relief. Mullally did not appeal the ruling.

The city then moved to dismiss this case due to Mullally's failure to join the union as a party. In December 1996, the district court granted the city's motion. This appeal followed entry of judgment. Because the district court did not abuse its discretion in ordering the union joined as a party and because Mullally has failed to join the union, we affirm.



The district court concluded that the union should be joined because it was a necessary party. Minn. R. Civ. P. 19.01 provides in pertinent part:

A person who is subject to service of process[1] shall be joined as a party in the action if * * * (b) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (1) as a practical matter impair or impede the person's ability to protect that interest or (2) leave any one already a party subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of the person's claimed interest.

Id. The determination of whether a person should be joined is not absolute, involves the balancing of many considerations, and rests ultimately on the facts of each particular case. McAndrews v. Krause, 245 Minn. 85, 94, 71 N.W.2d 153, 160 (1955). As such, the decision lies within the discretion of the trial court.

A reading of Mullally's complaint implicates and challenges a number of agreements executed by the city and the union, particularly a 1991 Letter of Agreement.[2] When Mullally accepted her temporary, 60-day position with the city in March 1991, she signed an agreement acknowledging that she had no permanent rights or status, that her position gave her no employment benefits, that any extension of her employment beyond 60 days would not give her permanent status, and that in order to obtain a permanent job with the city she would have to follow civil service rules and apply when positions were advertised. In August 1991, the city and union entered into the Letter of Agreement. Under that agreement, Mullally and other temporary employees became "certified temporary" employees and received step increases and other benefits, including vacation, sick leave, holiday, and insurance. The agreement also specifically stated that these employees had no "bumping" rights to permanent positions or rights to any layoff lists.

Thus, if Mullally's action were allowed to proceed without joinder of the union and the court were to conclude Mullally was entitled to reinstatement as a permanent employee, this could require the city to violate its agreement with the union and subject itself to possible liability for breach of that agreement. See Window Glass Cutters v. American St. Gobain Corp., 428 F.2d 353, 354-55 (3rd Cir. 1970) (affirming dismissal of action for failure to join party where substantial risk existed of conflicting arbitration awards being imposed on employer by two unions). And because Mullally's case implicates the legality of agreements to which the city and union are signatories, disposition of this matter in the union's absence would impair or impede the union's ability to protect its interests. See Case v. International Bhd. of Elec. Workers, Local 1547, 438 F. Supp. 856, 859 (1977) (when employee's prayer for relief would adversely affect rights and interests of union, union indispensable party). Under these circumstances, the district court did not abuse its discretion in ordering the union joined as a necessary party.


In support of its motion to dismiss, the city argued that dismissal was appropriate because Mullally failed to follow the district court's ruling requiring joinder and because allowing joinder at that late date would violate the court's scheduling order.[3] That order required parties to be joined by May 6, 1996 and warned that "[f]ailure to comply with this order may subject the delinquent parties to appropriate sanctions, including * * * dismissal."

The scheduling order was entered pursuant to Minn. R. Civ. P. 16, which governs pretrial matters. Under Minn. R. Civ. P. 16.05, these orders "shall control the subsequent course of the action and shall be modified only to prevent manifest injustice." If a party or the party's attorney fails to obey a scheduling or pretrial order, the court may impose appropriate sanctions, including dismissal. Minn. R. Civ. P. 16.06, 37.02(b)(3).

In opposing the city's motion to dismiss, Mullally requested that the district court amend the pretrial schedule to allow her to join the union, rather than summarily dismiss her case. In determining whether a party may be relieved of the obligations of a pretrial or scheduling order, a court considers equitable factors such as the degree of prejudice to the various parties, the impact of the modification, and the degree of willfulness, bad faith, or inexcusable neglect on the part of the party seeking modification. Cotroneo v. Pilney, 343 N.W.2d 645, 649 (Minn. 1984); Bohdan v. Alltool Mfg. Co., 411 N.W.2d 902, 905 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987).

In this case, Mullally declined to follow the court's rulings mandating joinder, apparently for no other reason than that she "chose a different method to join the union, by starting a separate proceeding against it with the intention, known to the district court, to seek consolidation." Mullally's claim that the district court acquiesced in her "method" of joining the union is unsupported by the record. While Mullally might have disagreed with the district court's decision that the union should be joined, she has failed to adequately explain her refusal to follow the court's mandates. Given this, and the adverse impact this late modification would have on the city, the prejudice that would result to the city and to the union,[4] and the obvious waste of judicial resources, we conclude that the district court did not abuse its discretion in dismissing this case for Mullally's failure to comply with the scheduling order.

The district court's dismissal of Mullally's action against the city is affirmed.


[ ]1 It is undisputed that the union has offices in Minnesota, was within the jurisdiction of the district court, and was subject to service of process.

[ ]2 The complaint also discusses a 1995 Job Bank Agreement. On appeal here, however, Mullally admits that any claims involving the Job Bank Agreement were disposed of when the district court dismissed her action against the union for breach of its duty of fair representation. Thus, she states that any issues involving that agreement are now "moot."

[ ]3 The city also argued that Mullally was collaterally estopped from joining the union based on the dismissal of her separate action against the union for breach of its duty of fair representation. On appeal, both parties agree that collateral estoppel does not necessarily preclude this breach of contract action. See St. Paul Fire & Marine Ins. Co. v. Central Nat'l Ins. Co., 480 N.W.2d 681, 684 (Minn. App. 1992) (collateral estoppel precludes party from relitigating issues actually litigated and determined in prior action). Both parties also agree that while Mullally's action against the union for breach of its duty of fair representation may have been barred by the statute of limitations applicable to those types of cases, the six-year statute of limitations for breach of contract claims applies here. See City of Minneapolis v. Smith, 300 Minn. 86, 87, 217 N.W.2d 848, 849 (1974) (action by employer for restitution of vacation and sick leave overpayments made to former employee is contractual and governed by six year statute of limitations).

[4] The city has presumably filled positions during the pendency of this action and the union has already been subject to a separate lawsuit.