This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ง 480A.08, subd. 3 (2004).

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-927

Patrick E. Takuanyi,

Appellant,

vs.

Daniel Ray Erickson, et al.,

Respondents.

Filed ญญญFebruary 21, 2006

Affirmed

Dietzen, Judge

Ramsey County District Court

File No. C8-04-31

Patrick E. Takuanyi, P.O. Box 75341, St. Paul, MN 55175 (appellant pro se)

Joseph M. Stocco, 5201 Eden Avenue, Suite 340, Edina, MN 55436 (for respondents)

Considered and decided by Kalitowski, Presiding Judge; Halbrooks, Judge; and Dietzen, Judge.

U N P U B L I S H E D O P I N I O N

DIETZEN, Judge

Appellant challenges the district court order and judgment dismissing his lawsuit and denying his motion to vacate, arguing that the district court failed to properly apply the law and abused its discretion. Because the district court properly applied the law and the record supports its determinations, we affirm.

F A C T S

Appellant Patrick E. Takuanyi contends that he was injured in an automobile accident on January 4, 1998, as a result of the negligence of respondent Daniel Erickson. Appellant filed a summons and complaint in Ramsey County on January 2, 2004, but did not serve it upon respondent until February 24, 2004.

On April 9, 2004, the district court entered a scheduling order setting a discovery deadline of August 6 and a trial date for the trial block commencing December 20, 2004. The scheduling order was amended on three separate occasions. On August 23 and September 16, 2004, the first and second amendments occurred as a result of the stipulation of both parties. On November 30, appellant moved for a 90-day extension, arguing that he could not comply with the discovery deadline of November 23 because he had not yet received his medical expert’s report. On December 8, the district court amended the scheduling order for the third time, setting mediation for January 13, a pretrial conference on February 17, and a trial date certain for February 28, 2005.

When mediation was unsuccessful, appellant’s counsel withdrew, advising appellant that some of his settlement objectives were “imprudent.” Appellant was advised to pick up his files at the attorney’s office but declined to do so. By letter dated January 27, appellant’s legal counsel advised him to seek substitute legal counsel immediately, reminded appellant that he was required to attend a pretrial conference on February 17, and that the trial was scheduled for the trial block beginning February 28. On February 7, 2005, appellant’s attorney formally served a notice of withdrawal, and on February 8, the district court notified appellant of the withdrawal by mail. On February 8, appellant moved for continuance of the trial date. When appellant failed to appear at the pretrial conference on February 17, the district court ordered that the case proceed to trial on February 28. On February 22, respondent served and filed a motion for dismissal for failure to prosecute together with its stipulated statement of the case, and its witness and exhibit list. On February 24, appellant’s new legal counsel served and filed a motion for a continuance that was supported by his affidavit. In the memorandum in support of the motion, appellant stated that he had selected a new physician to testify but that the expert was unavailable for the scheduled trial date.

On March 2, the district court denied appellant’s motion for continuance and granted respondent’s motion for dismissal with prejudice. On March 23, appellant moved to vacate the judgment under rule 60.02 of the Minnesota Rules of Civil Procedure. On April 26, the district court denied appellant’s motion to vacate. This appeal follows.

D E C I S I O N

Appellant raises three issues on appeal. First, appellant asserts that the district court abused its discretion in denying appellant’s motions for continuance of the trial date. Essentially, appellant asserts that it was unreasonable to require him to obtain substitute counsel on such short notice.

“The granting of a continuance is a matter within the discretion of the trial court and its ruling will not be reversed absent a showing of clear abuse of discretion.” Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977); see also Kate v. Kate, 234 Minn. 402, 48 N.W.2d 551, 556-57 (1951) (noting trial court has discretion to grant or deny continuance, and its decision should be based on facts and circumstances surrounding request).

The Minnesota General Rules of Practice for the District Courts provide that “[i]f a trial setting has been established by scheduling order after hearing the parties, the court shall decline to consider requests for continuance except those made by motion or when a judge determines that an emergency exists.” Minn. R. Gen. Pract. 122. Further, “[a] single request for a reasonable continuance of a trial setting set by notice without hearing should be granted by the court upon agreement of all parties, provided that the request is made within 20 days after notice of the setting to the parties.” Id. The comments to the rule note that “[t]he rule creates a presumptive right to one continuance only in cases where a trial setting is made mechanically and without consultation of the parties and then only if all parties agree.” Minn. R. Gen. Pract. 122 cmt.

Here, the district court did not abuse its discretion in denying the motion for continuance. At the hearing, the district court noted that it had already granted three deadline extensions that were not met, and that it was reluctant to grant a fourth deadline extension when appellant was still unprepared for trial at the pre-trial conference. The district court enumerated the delays on appellant’s part, including failure to obtain substitute counsel, to appear for pre-trial, and to provide discovery relating to appellant’s injury. The district court also commented that appellant, in particular, was aware of the consequences of delay since a previous personal injury suit was dismissed for failure to prosecute, and that dismissal was ultimately affirmed by this court. See Takuanyi v. Savage, No. C6-03-264 (Minn. App. Sept. 9, 2003). In short, the district court concluded that appellant failed to establish good cause for a continuance.

We agree. Appellant was allowed to extend the deadlines in the scheduling order on three separate occasions. When his legal counsel notified him of his withdrawal, appellant had one month to secure substitute counsel and to prepare for trial. Despite this crisis, the record is silent on appellant’s efforts to immediately obtain counsel so that he would be adequately prepared for trial. Appellant failed to provide the district court with any evidence describing his efforts to obtain substitute counsel and prepare for trial. Because of the extensive delays caused by appellant, and his failure to demonstrate diligence in obtaining substitute counsel, appellant failed to establish good cause for a continuance.

Appellant further argues that his attorney violated rule 1.16(d) of the Rules of Professional Conduct, and therefore, good cause for the continuance is established. Rule 1.16(d) provides that “[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, [and] surrendering papers and property to which the client is entitled[.]” Minn. R. Prof. Conduct 1.16(d).

While we ultimately do not determine this issue, we have reviewed the record and find no evidence of a violation of the rule. Appellant was informed that his attorney intended to withdraw at least one month before trial, and his attorney gave formal notice to the court and parties on February 7. On this record, there is no evidence that appellant’s counsel failed to give reasonable notice or delayed in giving appellant his papers and property. In short, appellant has not provided any evidence of what additional steps his attorney should have taken to protect appellant’s interests.

II.

Second, appellant contends that the district court abused its discretion in granting respondent’s motion to dismiss. Minn. R. Civ. P. 41.02(a) provides that a district court “may upon its own initiative, or upon motion of a party, and upon such notice as it may prescribe, dismiss an action or claim for failure to prosecute or to comply with these rules or any order of the court.” Dismissing a case for failure to prosecute requires a balancing of two policy concerns that we have recognized in connection with rule 41.02(a): (1) providing district courts with the discretion to manage their own dockets; and (2) disposing of claims on their merits. Lampert Lumber Co. v. Joyce, 405 N.W.2d 423, 425 (Minn. 1987) (noting that rule 41.02 is a trial management tool); Firoved v. Gen. Motors Corp., 277 Minn. 278, 283, 152 N.W.2d 364, 368 (Minn. 1967) (referring to disposing of cases on the merits as a “primary objective”).

Before an action can be dismissed for failure to prosecute, it must be shown: (1) that the delay prejudiced the defendant; and (2) that the delay was unreasonable and unexcusable. Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 394 (Minn. 2003) (citation omitted). We review whether the district court properly applied the two-prong test of prejudice and unreasonable and inexcusable delay to dismiss a claim under Minn. R. Civ. P. 41.02 for an abuse of discretion. Id. at 395; see also Bonhiver v. Fugelso, Porter, Simich & Whiteman, Inc., 355 N.W.2d 138, 144 (Minn. 1984) (indicating that dismissal under predecessor of 41.02(a) is vested in the sound discretion of district court).

In evaluating the reasonableness of the delay, courts should consider (1) action or inaction of the party not moving for dismissal prior to filing a complaint; (2) action or inaction of the non-moving party after filing the complaint; (3) use of discovery by either side; (4) consent to the delay by the moving party; (5) action of the moving party which may have contributed to the delay; and (6) whether the time period of the delay is shorter than the time period the statute of limitations provides for asserting the plaintiff’s cause of action. Modrow, 656 N.W.2d at 396-97.

Here, appellant waited nearly six years before filing his complaint against respondents and, because of the delays, over seven years had passed since the date appellant alleged his injuries occurred. Although the lawsuit had been pending for a year, appellant had failed to comply with the court ordered deadlines. Respondents asserted that they had conducted discovery, subpoenaed witnesses, and had prepared their witnesses for trial, but that appellant had not yet disclosed the nature and extent of his damage claim. As a result, respondents argued that they were unable to prepare a defense against appellant’s damage claim.

The district court concluded that respondents had shown prejudice. Specifically, the court noted respondents’ difficulties in preparing for trial on a personal injury matter because appellant did not comply with discovery requests to detail the extent of his injuries and their likely causes. The district court noted that appellant’s non-compliance had a “serious impact on how a defendant might defend against the threshold issues . . . in a motor vehicle accident case.” Moreover, appellant did not have a reasonable excuse for the delays because he knew of his attorney’s withdrawal weeks earlier and the district court found that his excuse for failing to appear for the pre-trial hearing was not credible. We conclude that the record supports the district court’s dismissal under rule 41.02(a).

III.

Third, appellant contends that the district court erred in denying his motion to vacate. The decision to grant relief from final judgment rests within the district court’s discretion. Lund v. Pan Am. Mach. Sales, 405 N.W.2d 550, 552 (Minn. App. 1987). On appeal from the district court’s decision under Minn. R. Civ. P. 60.02, we view the record in the light most favorable to the district court’s decisions. Bentonize, Inc. v. Green, 431 N.W.2d 579, 583 (Minn. App. 1988). Absent a clear abuse of discretion, we will uphold the district court’s decision. Lund, 405 N.W.2d at 552.

The right to relief from judgment is not absolute. Id. A party seeking such relief must demonstrate

(1) a reasonable case on the merits; (2) a reasonable excuse for the failure to act; (3) that it acted with due diligence after notice of the entry of judgment; and (4) that there would be no substantial prejudice to the opposing party if the motion to vacate is granted.

Imperial Premium Fin., Inc. v. GK Cab Co., 603 N.W.2d 853, 857 (Minn. App. 2000) (citing Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964)). While all four of these factors must be satisfied in order to justify relief under rule 60.02, Charson v. Temple Israel, 419 N.W.2d 488, 491-92 (Minn. 1988), a strong showing on some factors may offset a relatively weak showing on others. Armstrong v. Heckman, 409 N.W.2d 27, 29 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987). A liberal application of these factors is favored to further the policy of resolving cases on their merits. Kemmerer v. State Farm Ins. Co., 513 N.W.2d 838, 841 (Minn. App. 1994), review denied (Minn. Jun. 2, 1994).

Here, appellant failed to show that he had a reasonable case on the merits since he did not identify the extent of his injury or its possible causes at the time of trial. And appellant failed to show a reasonable excuse for his failure to act. The district court found that appellant’s failure to promptly secure new representation when his attorney withdrew five weeks before trial to be “unreasonable” and further, that appellant’s excuse that he forgot the pre-trial because of his head injury was not “terribly credible” since he corresponded with the court only a few days before the pre-trial. The district court’s findings are supported by the record and it did not abuse its discretion in denying appellant’s motion to vacate the judgment under rule 60.02.

Affirmed.