This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-98-163

Judith M. Pfuhl,

Appellant,

vs.

St. Luke's Hospital Association of Duluth,

Respondent,

Philip Alioto,

Respondent.

Filed July 21, 1998

Affirmed in part, reversed in part, and remanded

Harten, Judge

St. Louis County District Court

File No. C3-96-601409

Mark L. Knutson, Lisa D. Wilson, Bye, Boyd, Agnew, Ltd., 200 Sellwood Building, 202 West Superior Street, Duluth, MN 55802-1960 (for appellant)

Patti J. Skoglund, David J. Hoekstra, Jardine, Logan & O'Brien, P.L.L.P., 2100 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for respondent St. Luke's)

Robert T. Torgerson, Hanft, Fride, O'Brien, Harries, Swelbar & Burns, P.A., 1000 First Bank Place, Duluth, MN 55802 (for respondent Alioto)

Considered and decided by Davies, Presiding Judge, Toussaint, Chief Judge, and Harten, Judge.

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

HARTEN, Judge

In this employment action, the district court first granted respondents summary judgment and then dismissed as moot appellant's motion to compel discovery. Appellant seeks review of both district court actions. Because the district court should have decided the discovery motion before granting summary judgment, we affirm in part, and reverse and remand in part.

FACTS

In June 1996, appellant Judith Pfuhl commenced an employment action against respondents St. Luke's Hospital Association of Duluth and its former CEO, Phillip Alioto. In January of 1997, Pfuhl served on respondents interrogatories and a request for production of documents. Respondents did not answer the interrogatories until four months later and did not provide the requested documents until six months later. The parties disputed the completeness of respondents' answers to interrogatories. Pfuhl also complained that the documents were furnished without an index. A paralegal for respondents' counsel subsequently faxed Pfuhl's counsel an index and assisted in coordinating the documents. From April through July 1997, Pfuhl wrote letters and made several telephone calls to respondents in an attempt to resolve discovery issues. In her motion to compel, Pfuhl claimed that 32 of the 49 responses to her interrogatories and demand for production of documents were incomplete, inadequate, or based on privileges that do not exist in Minnesota.

Trial was set for September 1997. Respondents served their motion for summary judgment on July 10, 1997. Pfuhl served her motion to compel on July 25, 1997. The motions were heard together on August 11, 1997. On October 23, 1997, the district court granted summary judgment to respondents and dismissed as moot Pfuhl's motion to compel. Pfuhl concedes that her claim based on collective bargaining was properly dismissed by the district court, and as to that part of the district court's decision, we affirm. She appeals the remaining causes of action dismissed by the summary judgment and the denial of her motion to compel.

D E C I S I O N

The district court has broad discretion to determine the procedural calendar of a case; nevertheless, there is a presumption in favor of granting discovery continuances, and continuances for the purpose of conducting discovery should be liberally granted. Rice v. Perl, 320 N.W.2d 407, 412 (Minn. 1982). We review a decision on a motion to compel discovery under the same test set out in Rice for discovery continuances. Hasan v. McDonald's Corp., 377 N.W.2d 472, 475 (Minn. App. 1985). Rice established two inquiries, (1) whether the plaintiff has been diligent in obtaining or seeking discovery, and (2) whether the plaintiff is seeking further discovery in the good faith belief that material facts will be uncovered or the exercise is merely a "fishing expedition." 320 N.W.2d at 412. When a district court is concurrently faced with a motion for summary judgment and a motion to compel, the better practice is to decide the motion to compel before deciding the motion for summary judgment. Hasan, 377 N.W.2d at 475.

The district court, in one sentence, dismissed as moot Pfuhl's motion to compel because it had already granted respondents summary judgment on the employment law claims. The motion to compel was considered at the same time as the summary judgment; no hearing transcript was furnished on appeal. Other than mootness, there is no indication of the district court's reasoning behind its dismissal of appellant's motion to compel.

In Rice, the district court erred when it failed to allow additional discovery. 320 N.W.2d at 413; see also Bixler by Bixler v. J.C. Penney Co., 376 N.W.2d 209, 216-17 (Minn. 1985) (summary judgment for defendants premature because appellants likely to discover relevant material facts and because their discovery was diligent in light of the complex and confusing procedural occurrences). In that case, there was no question as to the plaintiff's diligence due to the compressed timing; the defendant's motion for summary judgment was brought less than one month after the plaintiff served the complaint, and the plaintiff filed a motion to continue shortly after receiving the summary judgment motion and before the summary judgment hearing date. Rice, 320 N.W.2d at 413. The plaintiff sought additional discovery in good faith. Id. at 412. The supreme court quoted the following with approval: Sufficient time for discovery is considered especially important when the relevant facts are exclusively in the control of the opposing party * * *. Indeed, the majority of the continuances granted under Rule 56(f) involve cases in which one party has exclusive knowledge of the relevant facts.

Id. (quoting 10 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2741, at 733-34 (1973)).

Rice and Bixler create a presumption in favor of granting discovery motions when the moving party brings the motion in good faith, has been diligent, and the opposing party controls the material sought. The presumption-inducing criteria are present in the instant case. Respondents delayed in producing answers and documents within their control. The adequacy of their responses is questionable. Additionally, Pfuhl's demonstrated efforts to resolve the discovery problems show that she was not delaying; she was seeking to obtain the discovery without further litigation.

In reviewing a motion for summary judgment, the facts must be seen in the light most favorable to the party against whom the motion was granted. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). Here the circumstances leading up to the summary judgment suggest that it was premature and unfair for the district court to decide that there was no question of fact without first deciding the motion to compel discovery of evidence claimed to support Pfuhl's action. We conclude that the district court should have resolved the motion to compel prior to deciding summary judgment. See Hasan, 377 N.W.2d at 475 (it is better to rule on motion to compel discovery before considering motion for summary judgment). We therefore reverse the district court's summary judgment on the remaining causes of action.

To summarize, we affirm the district court's summary judgment as to Pfuhl's collective bargaining count stated in the complaint. We reverse and remand that part of the district court's summary judgment dismissing the remaining counts of the complaint. We reverse and remand the district court's dismissal of Pfuhl's motion to compel. Our decision does not infer an opinion on the merits of appellant's motion to compel and does not preclude another summary judgment motion after discovery is resolved. Finally, we deny as moot respondent's motion to strike appellant's deposition and a letter appendix of appellant's reply brief. They were neither relevant to our decision nor utilized in our analysis.

Affirmed in part, reversed in part, and remanded.