This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (1998)




Brian P. O'Kane,



Health Recovery Center, Inc., et al.,


Bio-Recovery, Inc., et al.,


Filed July 27, 1999


Lansing, Judge

Ramsey County District Court

File No. C4977988

Alfred M. Stanbury, Stanbury Law Firm, P.A., 2209 Saint Anthony Parkway, Minneapolis, MN 55418 (for appellant)

Anne T. Johnson, Barry G. Vermeer, Gislason, Dosland, Hunter & Malecki, P.L.L.P., P.O. Box 5297, Hopkins, MN 55343-2297 (for respondents Health Recovery Center, Inc., et al.)

Regina M. Chu, Regina M. Chu, P.A., 701 Fourth Avenue South, Suite 500, Minneapolis, MN 55415 (for respondents Bio-Recovery, Inc., et al.)

Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N


The district court dismissed Brian O'Kane's employment action for failure to comply with a discovery order. O'Kane appeals the dismissal and the court's earlier denial of a motion to recuse. The denial of the recusal motion was not an abuse of discretion, and the dismissal, although harsh in its effect, was a permissible exercise of the district court's discretionary powers to supervise the discovery process. We affirm.


The facts underlying this appeal are extensive, but some attention to the key facts is necessary to understand the district court's action. In 1997, Brian O'Kane sued former employers Health Recovery Center, Inc., and Bio-Recovery, Inc., and five individual owners or employees (collectively, respondents) on multiple claims arising from his discharge. O'Kane, who is a lawyer, initially acted pro se, but retained an attorney four months after filing the complaint.

The discovery process was marked by unusual acrimony and reciprocal claims of failure to cooperate. At a hearing to compel discovery in November 1997, the district court admonished the attorneys to move forward on the discovery and to cease making personal attacks and filing vitriolic affidavits. After the hearing, the court learned that O'Kane's attorney had been suspended from practice for over a month for failure to pay registration fees. Because the suspension was in effect when the attorney filed and argued the motion, the court stayed the enforcement of the discovery order and struck several of O'Kane's filed documents. The attorney reinstated his license and moved in December 1997 for the judge's removal based on comments at the hearing and the order to strike. The judge vacated the stay and denied the removal motion in January 1998. O'Kane's attorney then moved the chief judge of the district to order removal. The chief judge denied the motion in an order dated April 22, 1998. During the pendency of the motions, O'Kane did not respond to discovery requests and, in April 1998, the respondents moved to compel discovery. O'Kane's attorney denied any obligation to respond because of the pendency of the removal motions and did not appear for the hearing on the motion to compel. The court granted the respondents' motion to compel. After the chief judge denied the removal motion, O'Kane's attorney sought a stay of the discovery order to apply for a writ of mandamus, but abandoned pursuit of the writ when the stay was denied.

In June 1998, O'Kane's attorney noticed deposition of all named respondents and representatives of named corporations. Because the deposition could not be arranged until mid-July or early August, the parties stipulated, and the court approved, extension of the discovery deadline from July 1 to September 1, 1998. Less than a week before the scheduled depositions, O'Kane's attorney canceled them. On July 13, respondent Bio-Recovery noticed O'Kane's deposition for August 17 and 18, providing a longer notice period because O'Kane was living in New York. Several other respondents noticed an independent medical (psychiatric) examination (IME) for O'Kane on August 26 and 27, just before expiration of the discovery period.

On August 11, O'Kane notified respondents' attorneys that his attorney was no longer representing him. In a later phone call, O'Kane indicated that he could not make himself available for a deposition the following week, and respondent Bio-Recovery's attorney accommodated O'Kane by rescheduling it for August 25 and 28 to coincide with the dates of the IME.

On August 17, O'Kane contacted respondents' attorneys to extend again the discovery deadline, indicating that he had been called up for one week of annual training in the state National Guard. The attorneys requested a letter confirming the National Guard duty and agreed to a conference call with the court to discuss a discovery extension. The district court indicated that a formal request would be required for any extension. Near the end of August, O'Kane sent an affirmation of military orders to the attorneys and indicated that he would apply for an extension after he completed his National Guard training.

O'Kane did not contact the court after completion of the training or before the expiration of the discovery period. In mid-September 1998, respondents moved for an order compelling O'Kane's appearance at a deposition on October 26 and 28 and an IME on November 18 and 19. O'Kane did not appear for the motion, in person or by phone, but sent an affidavit indicating that health problems prevented him from attending the deposition and IME. The district court expressed skepticism about O'Kane's intentions in complying with discovery and ordered O'Kane to appear for the deposition and IME within 30 days. The court stated that unless O'Kane made binding arrangements within 30 days, the case would be dismissed with prejudice. Respondents' counsel rescheduled the IME to comply with the court's 30-day cut-off date.

O'Kane initially indicated that he would be present for the deposition and IME, but on the Friday preceding the Monday deposition, he left a voice-mail message on an answering machine indicating that he would not attend because his psychiatrist had recommended a one-week hospitalization. O'Kane did not provide respondents' counsel or the court with any verification of the hospitalization. When respondents' attorneys informed the court that O'Kane had not appeared for the deposition or the IME, O'Kane argued that he had complied with the judge's order because it only required a binding agreement, not performance. On November 19, the district court entered an order of dismissal with prejudice, and judgment was entered in December 1998.

O'Kane appeals, arguing that the court abused its discretion (1) by dismissing his action, and (2) in denying his removal motion. He also argues that the dismissal should be vacated because of an alleged conflict of interest of one of the respondents' attorneys.



The district court has authority to dismiss a claim for failure to comply with a discovery order. See Minn. R. Civ. P. 37.02(b)(3) (court may make orders compelling discovery that are just, including dismissing the action in whole or in part). Dismissal is justified when a party wilfully fails to comply with a discovery order without justification or excuse and continues to refuse to cooperate in concluding discovery in a prompt and expeditious manner. Breza v. Schmitz, 311 Minn. 236, 237, 248 N.W.2d 921, 922 (1976).

To determine whether the district court abused its broad discretion, reviewing courts have examined several factors, including (1) whether the court set a specific date for discovery; (2) whether the court warned the party about the possible sanction; (3) the length of the period of discovery; (4) whether the failure to cooperate in discovery was an isolated occurrence or part of a pattern; (5) whether the failure to cooperate with discovery was willful or without justification; and (6) whether the party requesting the discovery would be prejudiced. Breza, 311 Minn. at 237, 248 N.W.2d at 922 (willful or without justification); Beal v. Reinertson, 298 Minn. 542, 544, 215 N.W.2d 57, 58 (1974) (specific date for discovery, length of discovery, and prejudice to party seeking discovery); Sudheimer v. Sudheimer, 372 N.W.2d 792, 795 (Minn. App. 1985) (warning about possible sanction); Bio-Line, Inc. v. Wilfley, 365 N.W.2d 338, 340 (Minn. App. 1985) (specific date for discovery), review denied (Minn. July 26, 1985); Williams v. Grand Lodge of Freemasonary AF & AM, 355 N.W.2d 477, 480 (Minn. App. 1984) (isolated occurrence or part of a pattern), review denied (Minn. Dec. 20, 1984).

After a series of failed arrangements and deadlines on O'Kane's deposition and IME, the court granted a final extension and ordered that O'Kane comply within 30 days. The court stated that a failure to comply would result in a dismissal with prejudice. The final order came at the end of a year of discovery, and it followed an earlier order compelling O'Kane to cooperate in discovery or risk the dismissal of his action. Although O'Kane substantiated his unavailability during one week of active National Guard duty, he failed to provide adequate justification for the repeated failure to comply with scheduling his deposition and IME. Because of the nature of O'Kane's claims and damages, the respondents would be substantially prejudiced in defending without O'Kane's deposition and IME.

The district court is charged with the responsibility of preventing unnecessary and inexcusable delays that disrupt the orderly administration of judicial proceedings. Firoved v. General Motors Corp., 277 Minn. 278, 284, 152 N.W.2d 364, 369 (1967). Maintaining reasonable control over the procedure and assessing the sincerity or lack of sincerity in arguments or causes for delay is peculiarly within the province of the district court. See Patton v. Newmar Corp., 538 N.W.2d 116, 119 (Minn. 1995). On these facts, the district court did not abuse its discretion in dismissing O'Kane's action with prejudice for failure to attend his deposition and submit to an IME.


A judge's freedom from bias and partiality is a touchstone of our system of laws. Jones v. Jones, 242 Minn. 251, 261, 64 N.W.2d 508, 515 (1954). An appearance of partiality should be equivalently guarded against. Wiedemann v. Wiedemann, 228 Minn. 174, 177, 36 N.W.2d 810, 812 (1949). But an appearance of bias should not automatically be imputed to a judge who is enforcing court rules or who issues a ruling adverse to a party. McClelland v. McClelland, 359 N.W.2d 7, 11 (Minn. 1984). And a judge who feels able to fairly preside should not recuse on the allegation of a party which may itself be unfair or ungrounded. Id. In an ongoing proceeding, a judge may not be removed except on an affirmative showing of prejudice. Minn. R. Civ. P. 63.03. A denial of a motion to remove is reviewed under an abuse-of-discretion standard. Uselman v. Uselman, 464 N.W.2d 130, 139 (Minn. 1990).

O'Kane asserts the district court demonstrated bias by striking filed documents and in his comments to O'Kane's attorney at a motion hearing. Minnesota's rules governing attorney registration impose an affirmative duty on "each member of the judiciary to enjoin persons from appearing and practicing" in court when the person is not properly registered. Minn. R. Registration of Attorneys 3. All motions submitted to the court must be signed by an attorney or the party and, if unsigned, the court shall impose appropriate sanctions. Minn. R. Civ. P. 11. The district court acted appropriately in striking the improperly filed motion papers and staying the discovery order until O'Kane's attorney supplied "satisfactory evidence that he has been reinstated to practice law." The judge did not prohibit O'Kane from filing his motions after he had been reinstated. We also discern no bias in the judge's comments at the motion hearing. The judge's strong admonitions were directed at all of the attorneys involved in the litigation, and nothing in the transcript demonstrates that O'Kane's attorney was singled out for reproval disproportionate to the others or to the provocation.

On O'Kane's motion under Minn. R. Gen. Pract. 106, the chief judge reviewed the denial of the removal and similarly determined O'Kane had failed to demonstrate bias. See Minn. R. Gen. Pract. 106 (if the judge in an action denies a motion for removal, then the chief judge of district court may hear and reconsider motion to remove the judge). It was not an abuse of discretion for the district court judge to deny the removal motion and to continue to preside over the action.

O'Kane's final issue on appeal, not raised in the district court, is an allegation of reversible error stemming from a purported conflict of interest in Health Recovery Center's attorney's representation. The allegation is directed to the joint representation of Health Recovery Center and a respondent-employee who has been discharged for embezzlement. O'Kane neither indicates why this is the appropriate forum for raising the issue nor why he would have standing to raise it. See Minn. R. Law. Prof. Resp. 1.7 (discussing conflicts of interest). We decline to address the argument more specifically because it was not raised in the district court and because O'Kane fails to show how the purported violation relates to the dismissal for failure to comply with discovery. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (failure to raise issue in district court prevents consideration on appeal); Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (assertion of error unsupported by argument or authority provides no basis for appeal).