This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Richard Dean Anderson,



H-Window Company, et al.,


Craig Fast,


b>Filed February 23, 1999


Willis, Judge

Wright County District Court

File No. C9972899

John O. Murrin, Murrin Law Firm, 4018 West 65th Street, Edina, MN 55435 (for appellant)

Daniel C. Gerhan, Jennifer Haskin Will, Faegre & Benson, LLP, 2200 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402 (for respondent H-Window Company, et al.)

Barbara Jean D'Aquila, John J. Laravuso, Cosgrove, Flynn & Gaskins, 2900 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent Fast)

Considered and decided by Halbrooks, Presiding Judge, Crippen, Judge, and Willis, Judge.



On appeal from summary judgment for respondents, Richard Dean Anderson argues that the district court erred by dismissing as untimely his claims of discrimination, aiding and abetting discrimination, and defamation. We affirm.


On January 31, 1996, Anderson sued his employer, H-Window Company, and Craig Fast, his supervisor ("Suit I"). Several counts were dismissed; the surviving claims alleged racial discrimination, aiding and abetting discrimination, and defamation, based on a remark allegedly made by Fast in 1994.

In April 1996, Anderson and his wife filed a Chapter 7 bankruptcy petition. In connection with the filing, the Andersons were required to list (1) all "contingent and unliquidated claims of every nature" and (2) all suits and administrative proceedings to which they were parties or had been parties within one year immediately preceding the filing of the bankruptcy petition. Although Anderson had filed Suit I less than three months earlier, the Andersons responded "none" to both items. The bankruptcy file was closed in August 1996.

In November 1996, respondents discovered that Suit I had not been disclosed in the Andersons' bankruptcy. Respondents moved to dismiss, arguing that Anderson's claims against them were part of the bankruptcy estate and only the bankruptcy trustee had standing to pursue them. On January 10, 1997, the district court dismissed Suit I without prejudice. Two months later, the bankruptcy case was reopened. In August 1997, the trustee abandoned to Anderson the claims asserted in Suit I.

On November 5, 1997, Anderson commenced a second suit against respondents ("Suit II"). Suit II was based on the same alleged facts as Suit I, with the addition of a claim that on May 5, 1996, Anderson was wrongfully terminated and his "termination was a result of retaliation in violation of the Minnesota Human Rights Act" (MHRA). Suit II alleged: (1) racial discrimination (expanded to include discriminatory discharge); (2) aiding and abetting discrimination; and (3) defamation, based on Fast's alleged remark in 1994.

Respondents moved to dismiss Suit II on the ground that the claims were time-barred. The district court granted summary judgment for respondents in March 1998. This appeal followed.

In May 1998, Anderson moved to vacate the January 10, 1997, order dismissing Suit I. When the district court denied the motion in July 1998, Anderson appealed. This court dismissed the appeal for lack of jurisdiction. Anderson v. H-Window Co., No. C0-98-1555 (Minn. App. Oct. 6, 1998) (order op.).

On appeal from summary judgment in Suit II, Anderson asserts that (1) the claims in Suit II relate back to the complaint filed in Suit I; and (2) the statutes of limitations applicable to his claims should have been equitably tolled during the bankruptcy proceedings until the trustee abandoned the claims to him. Fast requests his costs and disbursements in responding to both appeals.


1. Relation back. On appeal from summary judgment, the reviewing court must determine whether genuine issues of material fact exist and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

Discrimination claims under the MHRA must be brought within one year after the occurrence of the allegedly discriminatory practice. Minn. Stat. § 363.06, subd. 3 (1998). Anderson was terminated on May 5, 1996, which is the last day that the corporate respondents could have engaged in any discriminatory acts against him. Fast left H-Window Company on February 6, 1996, which is the last day that he could have aided and abetted any discrimination by the company. Because Anderson commenced Suit II more than a year after the alleged occurrences of discrimination, those claims are time-barred.

The statute of limitations for defamation claims is two years. Minn. Stat. § 541.07(1) (1998). Anderson's defamation claim, which is based on a remark that Fast allegedly made in 1994, is therefore also untimely.

Anderson argues that his claims in Suit II, however, should relate back to his timely filed complaint in Suit I. The district court correctly rejected this argument. Suit I was dismissed without prejudice.

Dismissal without prejudice operates to leave the parties as if no action had been brought at all. Following such dismissal the statute of limitations is deemed not to have been suspended during the period in which the suit was pending.

Moore v. St. Louis Music Supply Co., 539 F.2d 1191, 1194 (8th Cir. 1976) (citations omitted); see also Collins v. Cochrane & Bresnahan, P.A., 415 N.W.2d 715, 717 (Minn. App. 1987) (explaining plaintiff's failure to timely commence second suit when identical suit was previously dismissed without prejudice caused dismissal of the second suit). Suit II is not identical with Suit I because Suit II contains the additional claim of discriminatory discharge, but all other claims in Suit II are the same as those dismissed without prejudice in Suit I. All of Anderson's claims, including the claim of discriminatory discharge, must, therefore, independently meet the applicable statutes of limitations. All fail to do so.

2. Equitable Tolling. A reviewing court will not reverse a district court's decision to grant or deny equitable relief absent a showing of clear abuse of discretion. Nadeau v. County of Ramsey, 277 N.W.2d 520, 524 (Minn. 1979).

The district court refused to equitably toll the limitations periods for the pendency of the Andersons' bankruptcy proceedings, reasoning that Anderson gave the trustee control over his claims by voluntarily filing for bankruptcy, his untimely filing of Suit II was the result of his own procedural "missteps," and allowing Suit II to proceed would prejudice respondents.

Anderson maintains that the limitations periods applicable to his claims should be equitably tolled from the time he filed for bankruptcy until the trustee abandoned them to him in August 1997 because (1) the failure to list Suit I as an asset of his bankruptcy estate was not his fault; (2) he could not file Suit II while the bankruptcy court exercised jurisdiction over his claims; (3) respondents caused the delay in filing Suit II by having Suit I dismissed for lack of subject-matter jurisdiction; (4) respondents were not prejudiced by the delay in filing Suit II; and (5) it is inequitable to prevent him from trying his case.

A limitations statute may bar an action, but it does not deprive the court of jurisdiction to determine if the facts of a particular case justify equitable tolling of the statute. State by Khalifa v. Russell Dieter Enters., Inc., 418 N.W.2d 202, 204 (Minn. App. 1988). In determining whether to toll the statute of limitations, the court considers whether circumstances beyond the plaintiff's control prohibited him from serving his complaint within the statutory period. Ochs v. Streater, Inc., 568 N.W.2d 858, 860 (Minn. App. 1997). The court also examines the plaintiff's conduct. See Carlson v. Independent Sch. Dist. No. 623, 392 N.W.2d 216, 223-24 (Minn. 1986) (concluding MHRA statute of limitations not equitably tolled when plaintiffs failed to file complaints properly as required by statute). In addition, the court considers possible prejudice to the defendant if the statute were to be tolled. See Russell Dieter Enters., 418 N.W.2d at 206 (tolling statute of limitations when employer was not prejudiced and failure to issue complaint within statutory period was not employee's fault).

Review of the record compels the conclusion that Anderson was not prevented from pursuing his claims by circumstances beyond his control. As the district court observed, he chose to file for bankruptcy, thereby voluntarily surrendering his claims to the trustee. See Harris v. St. Louis Univ., 114 B.R. 647, 648 (E.D. Mo. 1990) (stating that debtor's discrimination action became part of her Chapter 7 bankruptcy estate even though she failed to schedule it as an asset, and consequently only trustee had standing to sue). If Anderson had not filed for bankruptcy, Suit I could have proceeded.

Anderson could not pursue the claims in Suit I until they were abandoned to him by the bankruptcy trustee, because, although they were unscheduled, they had not been administered or abandoned before the estate was closed. See id. at 649 (stating that unscheduled claims that are neither administered nor abandoned remain property of estate after closing). Nevertheless, even if the failure to disclose Suit I in the bankruptcy proceedings was unintentional, "innocent inadvertence" does not justify equitable tolling. See Jones v. Consolidated Freightways Corp., 364 N.W.2d 426, 429 (Minn. App. 1985) (stating plaintiff's innocent inadvertence was insufficient to toll statute of limitations).

Delay in filing Suit II was a direct result of Anderson's failure to proceed properly. If Suit I had been scheduled, the trustee could have promptly evaluated the claims and abandoned them to him, as she eventually did. See 11 U.S.C. § 554(a) (1994) (permitting trustee to abandon property that is burdensome to estate or of inconsequential value and benefit to estate). Furthermore, Anderson's bankruptcy estate was closed within four months after he filed for bankruptcy. If his claims had been scheduled, they would have been abandoned by operation of law, even without the trustee's action. See Vreugdenhill v. Navistar Int'l Transp. Corp., 950 F.2d 524, 526 (8th Cir. 1991) (stating that, for property to be abandoned by operation of law pursuant to 11 U.S.C. § 554(c) (1990), debtor must formally schedule property before close of case). Anderson could then have proceeded with Suit I. Delay caused by procedural errors is insufficient cause for equitable tolling. Carlson, 392 N.W.2d at 223-24 (concluding limitations statute not equitably tolled when plaintiffs failed to proceed properly).

Moreover, Anderson's discriminatory discharge claim is based on a termination of his employment that occurred after he filed for bankruptcy. That claim did not, therefore, become the property of the bankruptcy estate, and Anderson could have pursued it immediately after he was terminated. See 11 U.S.C. § 541(a)(1) (1994) (defining bankruptcy estate as "all legal or equitable interests of the debtor in property as of the commencement of the case").

Equitable tolling "is an exception to the rule, and should therefore be used only in exceptional circumstances." Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1330 (8th Cir. 1995). The district court's refusal to equitably toll the limitations statutes was not a clear abuse of discretion.[1]

For the foregoing reasons, we conclude that the district court did not err in granting summary judgment for respondents.


[1] Fast's request for his costs and disbursements both in Suit I and in Suit II is governed by Minn. R. Civ. App. P. 139.03 (costs and disbursements taxed by clerk of appellate courts upon five days' written notice served and filed by prevailing party; failure to tax costs and disbursements within 15 days after filing decision or order constitutes waiver).