LORI A. OLSON, Individually and as the personal representative of the ESTATE OF SCOTT D. OLSON, a deceased person v. HURON REGIONAL MEDICAL CENTER, INC., WILLIAM J. MINER, M.D., and THOMAS MINER
#30697, #30705-aff in pt & rev in pt-MES
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
OPINION FILED 07/09/25
2025 S.D. 34
CONSIDERED ON BRIEFS FEBRUARY 18, 2025
DANIEL K. BRENDTRO MARY ELLEN DIRKSEN BENJAMIN HUMMEL of Hovland, Rasmus, Brendtro & Trzynka, Prof. LLC Sioux Falls, South Dakota Attorneys for plaintiffs and appellants.
GREGORY J. BERNARD KIMBERLY PEHRSON of Thomas Braun Bernard & Burke, LLP Rapid City, South Dakota Attorneys for defendant and appellee William J. Miner, M.D.
MARK W. HAIGH TYLER W. HAIGH TYLER A. BRADLEY of Evans, Haigh & Arndt, LLP Sioux Falls, South Dakota Attorneys for defendant and appellee Huron Regional Medical Center and Thomas Miner.
SALTER, Justice
[¶1.] A widow, for herself and on behalf of her deceased husband‘s estate, commenced this action against a hospital, a doctor, and a physician‘s assistant for several claims relating to her husband‘s death. After denying the doctor‘s motion to dismiss for insufficient service of process, the circuit court ultimately granted the defendants’ motions to dismiss for failure to prosecute. The widow appeals, challenging the order granting the motion to dismiss. By notice of review, the doctor challenges the court‘s denial of his motion to dismiss for insufficient service. We reverse in part and affirm in part.
Factual and Procedural Background
[¶2.] Scott Olson passed away at the Huron Regional Medical Center (HRMC) on January 24, 2020, after experiencing cardiac arrest. At the time of his death, Scott was under the care of physician William Miner, M.D. (Dr. Miner), and Thomas Miner (Mr. Miner) who is a physician‘s assistant and Dr. Miner‘s brother. In September 2021, Scott‘s widow, Lori Olson, brought this action individually and as the personal representative of Scott‘s estate against HRMC, Dr. Miner, and Mr. Miner (collectively, the defendants).
[¶3.] The complaint alleged negligence, wrongful death, and loss of consortium. The complaint also raised claims of intentional infliction of emotional distress, civil conspiracy, and fraudulent concealment. These latter claims were related to Lori‘s allegations that Dr. Miner and Mr. Miner sought to prevent Lori from learning of their negligence and what she described as the “true cause of Scott‘s death” by denying authorization for an autopsy.
[¶4.] Lori commenced the action as to HRMC and Mr. Miner by service of a summons and complaint on September 15, 2021. In the time following Scott‘s death, Dr. Miner had relocated to Rapid City and was working at Monument Health Rapid City Hospital. Lori‘s attorneys delivered a summons and complaint to the Pennington County Sheriff on September 20 with instructions to serve Dr. Miner.
[¶5.] The following day, September 21, a Pennington County sheriff‘s deputy went to Monument Health, but instead of personally serving Dr. Miner, the deputy left the summons and complaint with Marlin Klingspor, a paralegal in the offices of Monument Health‘s general counsel. Klingspor delivered the summons and complaint to Paula McInerney-Hall, associate general counsel for Monument Health, who notified Dr. Miner. He came to her
[¶6.] Among the affirmative defenses listed in Dr. Miner‘s answer is the general allegation that “the Court lacks personal and subject matter jurisdiction in this matter.” The topic of insufficient service is also briefly referenced in Dr. Miner‘s January 14, 2022 answer to one of Lori‘s interrogatories inquiring as to “the factual basis for each affirmative defense[.]” In relevant part, Dr. Miner stated the following:
With regard to other affirmative defenses, discovery in this case continues. This response will be seasonably updated as evidence is gathered, witnesses are selected, and exhibits are compiled. Dr. Miner was not served with process.
[¶7.] On February 10, 2022, after
[¶8.] Following Dr. Miner‘s motion to dismiss, the parties conducted discovery, including depositions of the Pennington County deputy charged with serving Dr. Miner, Monument Health paralegal Marlin Klingspor, and Monument Health associate general counsel Paula McInerny-Hall. Klingspor and McInerny-Hall also submitted affidavits.
[¶9.] At an August 2022 hearing, the circuit court denied Dr. Miner‘s motion to dismiss. In its oral decision and in a subsequent written order, the court accepted each of Lori‘s four arguments as the multiple bases for its decision.1
[¶10.] Also significant to this appeal is the type and frequency of activity related to the prosecution of the case after the August 2022 hearing on Dr. Miner‘s motion to dismiss. The context for some of the parties’ contact during this time relates to the defendants’ efforts to compile a complete set of Scott‘s medical records which could then be numbered and used by all parties. The following chronology of events appears to be undisputed:
- September 21, 2022: Lori answers HRMC and Mr. Miner‘s 11/24/2021 written discovery requests and includes an authorization for release of Scott‘s medical records.
- September 21, 2022: Lori answers Dr. Miner‘s 12/29/2021 interrogatories.
- September 2022: Lori provides Scott‘s records from HRMC, Avera Heart Hospital, North Central Heart Hospital, Tschetter & Hohm Clinic, Orthopedic Institute, Avera McKennan, and AMG Nephrology; counsel for HRMC and Mr. Miner request authorizations from Lori‘s counsel to
ensure all medical records had been provided. - September 28, 2022 – December 6, 2022: Multiple emails are exchanged between parties.
- October 17, 2022: Lori‘s counsel and Dr. Miner‘s counsel communicate.
- December 6, 2022: HRMC and Mr. Miner obtain a completed authorization for release of health information from Lori; HRMC and Mr. Miner, through their counsel, initiate obtaining medical records.
- January 3, 2023: Dr. Miner requests an updated medical release from Lori through staff for the respective counsel.
- January 6, 2023: Lori updates medical release authorizations to Dr. Miner through staff for the respective counsel.
- January 13, 2023: Dr. Miner continues to gather medical records.
- February 2023: HRMC and Mr. Miner request, and Lori provides, letters of Personal Representative.
- February 10-13, 2023: Dr. Miner continues efforts to gather medical records from individual providers.
- March 24 or 28, 2023: At the request of one of Scott‘s medical providers, paralegals for counsel of both HRMC and Mr. Miner as well as Lori have a brief email exchange in which the paralegal for Lori‘s counsel provides a copy of Scott‘s death certificate to the paralegal for HRMC and Mr. Miner.
- March 31, 2023: Dr. Miner continues to gather medical records.
- April 2023: Lori‘s counsel speaks over phone with defendants’ counsel relating to Lori‘s search for medical experts; the conversation is called a side-bar conversation because it apparently occurred during a call involving an unrelated case.
- April 25, 2023: Dr. Miner continues to gather medical records from individual providers.
- May 5, 2023: Lori identifies two medical experts.
- June 2023: Lori‘s medical experts provide a verbal report to her counsel.
- Fall 2023: Lori receives a report from her medical experts.
- January 8, 2024: Lori‘s counsel requests a complete set of medical records.
[¶11.] On January 8, 2024, Dr. Miner moved to dismiss for lack of prosecution under
[¶12.] In response, Lori asserted that formal and informal discovery efforts constituted “record activity,” and she recounted the activities both sides had undertaken during the seventeen-month period since the circuit court‘s August 2022 hearing in an affidavit. Lori also underscored the severe impact of a dismissal and asked the court to “exercise its discretion in favor of pursuing this matter on its merits.”
[¶13.] Following a hearing, the circuit court granted the defendants’ motions to dismiss under both
[¶14.] As for good cause, the court found that the period of inactivity Lori spent waiting for the defendants to provide medical records could not be excused because she neither “avail[ed] [her]self to the rules of civil procedure” nor “engaged in communication with opposing counsel” to remedy what the court described as a “discovery dispute.” Notably, in its analysis of
[¶15.] The circuit court returned to the “unreasonable and unexplained” standard when it also granted the motion to dismiss under Rule 41(b). The court found the defendants were prejudiced by the delay in communications in the sense that it prolonged “the financial and emotional difficulties that come with a lawsuit[.]” Moreover, the court determined Lori was “responsible for the delay” because she “did nothing to move the case forward,” and, as a result, it found “that the delay was unreasonable and unexplained.”
[¶16.] After an unsuccessful motion for reconsideration, Lori appealed the circuit court‘s decision to grant the defendants’ motions to dismiss for lack of prosecution. In Lori‘s view, the court erred in its application of both
Analysis and Decision
Standard of Review
[¶17.] We apply three distinct standards of review for dismissal of a civil case for failure to prosecute under either
[¶18.] And for “the circuit court‘s ultimate decision to dismiss ‘a claim for failure to prosecute[,]‘” we apply an abuse of discretion standard. Id. (quoting Eischen, 2008 S.D. 2, ¶ 10, 744 N.W.2d at 794). “An abuse of discretion is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable.” Frye-Byington v. Rapid City Med. Ctr., LLP, 2021 S.D. 3, ¶ 10, 954 N.W.2d 314, 317 (quoting Johnson v. United Parcel Serv., Inc., 2020 S.D. 39, ¶ 27, 946 N.W.2d 1, 8). Of course, “an error of law is never within the range of permissible choices and necessarily constitutes an abuse of discretion.” Field v. Field, 2020 S.D. 51, ¶ 15, 949 N.W.2d 221, 224 (citing Lewis v. Sanford Med. Ctr., 2013 S.D. 80, ¶ 27, 840 N.W.2d 662, 668).
[¶19.] Further, the standard is violated when the circuit court “clearly errs in weighing the [relevant] factors.” Rothluebbers v. Obee, 2003 S.D. 95, ¶ 5, 668 N.W.2d 313, 316 (quoting EFCO Corp. v. Aluma Systems USA, Inc., 268 F.3d 601, 603 (8th Cir. 2001)). This includes instances where the court “fails to consider a relevant factor that should have received significant weight, [or] gives significant weight to an improper or irrelevant factor[.]” United States v. Struzik, 572 F.3d 484, 488 (8th Cir. 2009) (quoting United States v. Moore, 565 F.3d 435, 438 (8th Cir. 2009)); see also State v. Mitchell, 2021 S.D. 46, ¶ 39, 963 N.W.2d 326, 335 (holding a circuit court‘s decision was “outside the range of permissible choices” because it did not consider a relevant factor).
Motion to Dismiss for Failure to Prosecute
[¶20.] We have stated an institutional preference to resolving cases on their merits, explaining in the context of relief from a default judgment that “cases should ordinarily be decided on their merits, and elementary fairness demands of courts a tolerant exercise of discretion in evaluating excusable neglect.” Upper Plains Contracting Inc. v. Pepsi Americas, 2003 S.D. 3, ¶ 22, 656 N.W.2d 323, 330 (cleaned up). Nevertheless, circuit courts do possess authority under both
[¶21.] We have, however, repeatedly emphasized that
[¶22.] By contrast, Rule 41(b) is “a tool for sanctioning a party for delay or disobedience in the processing of a case.” Eischen, 2008 S.D. 2, ¶ 39, 744 N.W.2d at 800 (Konenkamp, J., dissenting). Unlike dismissals under
SDCL 15-11-11
[¶23.] The text of
The court may dismiss any civil case for want of prosecution upon written notice to counsel of record where the record reflects that there has been no activity for one year, unless good cause is shown to the contrary. The term “record,” for purposes of establishing good cause, shall include, but not by way of limitation, settlement negotiations between the parties or their counsel, formal or informal discovery proceedings, the exchange of any pleadings, and written evidence of agreements between the parties or counsel which justifiably result in delays in prosecution.
[¶24.] We have previously interpreted this text as establishing a two-prong test: “Before a circuit court may exercise its discretion and dismiss a case for want of prosecution there must be a)
[¶25.] In White Eagle v. City of Fort Pierre, we observed that prior to a 1998 amendment that added the second sentence to
[¶26.] Indeed, we recently clarified that
“Our focus has always been on whether proof of activity was presented. The activity alleged must be verifiable in the record before us, regardless of whether the activity was in the form of formal motions or informal discovery.” Therefore, even if the events occurring in a case are not simultaneously documented in the official case file, a record of the activity can be made after the fact in response to a motion to dismiss. In discussing a plaintiff‘s obligations under
SDCL 15-11-11 , we have stated a plaintiff has the “duty to carry [the] case forward and to ensure verifiable activity existed to keep the case afloat.”
2020 S.D. 13, ¶ 18, 941 N.W.2d at 229 (alteration in original) (internal citations omitted) (quoting White Eagle, 2002 S.D. 68, ¶¶ 8, 11, 647 N.W.2d at 719–20).
[¶27.] Here, however, the record reveals verifiable activity between Lori‘s counsel and counsel for the defendants in the year-long period leading up to defendants’ January 8, 2024 motion to dismiss. The effort among counsel, through their offices, to assemble a complete set of medical records was verifiable and undisputed activity as determined by the circuit court. Also undisputed is the assertion by Lori‘s counsel that HRMC had taken it upon itself to assemble a complete set of Scott‘s medical records that would then be shared among the parties and presumably marked with a universal set of Bates numbers. The effort was facilitated by communication between staff working on behalf of counsel for several months following January 6, 2023.
[¶28.] In addition, in February 2023, at defendants’ request, Lori provided letters of Personal Representative. In late March 2023, paralegals in counsels’ offices communicated via email regarding Scott‘s death certificate which was requested by HRMC and promptly furnished by paralegals for Lori‘s counsel.
[¶29.] The circuit court did not view these contacts between law offices as activity principally because Lori was not actively gathering the records to which she already had access. But the issue here is
[¶30.] Also, in April 2023, Lori‘s counsel spoke to counsel for HRMC in a telephone conversation concerning her search for medical experts. This is direct contact between attorneys involved in the case and easily constitutes verifiable record activity during the year prior to the defendants’ motion to dismiss. Lori‘s counsel was in direct communication with counsel for HRMC and Mr. Miner to exchange information, and this phone call led to further efforts to move the case forward.
[¶31.] Because there was verifiable record activity within the year prior to the defendants’ motion for dismissal, the defendants have not satisfied the inactivity element of
Rule 41(b)
[¶32.] The relevant portion of Rule 41(b) provides:
For failure of the plaintiff to prosecute or to comply with this chapter or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. . . . Unless the court in its order for dismissal otherwise specifies, a dismissal under this section . . . operates as an adjudication upon the merits.
[¶33.] This rule of civil procedure is distinct from
[¶34.] As indicated above, however, these rules are set against the backdrop of our preference to adjudicate cases on their merits, where possible. Therefore, “a dismissal of an action for failure to prosecute . . . should be used only when there is an unreasonable and unexplained delay.” Dakota Cheese, 525 N.W.2d at 715. “An unreasonable and unexplained delay has been defined as an omission to do something ‘which the party might do and might reasonably be expected to do towards vindication or enforcement of his rights.‘” Id. at 715–16 (citation omitted).
[¶35.] We found egregiousness in Jenco, Inc. v. United Fire Group, 2003 S.D. 79, 666 N.W.2d 763, where there was no activity
[¶36.] But nothing in this record rises to the level of egregiousness demonstrated by our previous cases. Lori‘s counsel candidly admitted they could have done better at communicating with opposing counsel, but the fact remains the case was moving forward. See Swenson, 1999 S.D. 61, ¶ 22, 594 N.W.2d at 345 (holding that though the plaintiffs “could have been more persistent in their pursuit of trial,” their conduct was not so egregious that the case should be dismissed).
[¶37.] Indeed, there are no lengthy periods of unexplained delay. Lori and her counsel articulated their understanding that defendants were actively engaged in preparing medical records to share among the parties. Additionally, her actions of seeking out medical expert testimony and soliciting the experts’ opinions is something “the party might do and might reasonably be expected to do” toward establishing her wrongful death claim. Dakota Cheese, 525 N.W.2d at 715–16 (citation omitted). And the communication with opposing counsel in April 2023 and the subsequent coordination among opposing counsels’ offices are sharply at odds with the facts of Dakota Cheese, in which “any communication with the court or [defendants]” was “[n]otably absent.” Id. at 717. Lori‘s actions were reasonable, responsive to defendants’ requests, and did not prejudice the defendants. Even though the circuit court made a finding that defendants were prejudiced by the delay, Dr. Miner conceded he was “not impeded or prejudiced” in defending himself.
[¶38.] We are left with the strong sense that the passage of time was a predominant factor in the circuit court‘s determination, along with its view that defendants, and not Lori, were more directly engaged in obtaining and compiling medical records. Neither of these reasons justifies the court‘s decision to dismiss Lori‘s complaint, as we have explained. It may be that our decisions have not sufficiently emphasized the strong aversion to the sanction of dismissal and, more importantly perhaps, the utility of other, less drastic, means of encouraging promptitude before outright dismissal.
[¶39.] Several members of this Court have previously suggested that under Rule 41(b), a court should be able to consider “some other less extreme sanction” than dismissal with prejudice. Eischen, 2008 S.D. 2, ¶ 37, 744 N.W.2d at 800 (Konenkamp, J., dissenting).4 Federal courts applying their corresponding version of Rule 41(b) have traditionally considered several factors to “determine whether dismissal on the merits is warranted.” Id. ¶ 41, 744 N.W.2d at 801. In fact, every federal circuit
[¶40.] In his Eischen dissent, Justice Konenkamp listed several possible factors which could guide the courts in the exercise of their discretion, in addition to considering the presence of an unreasonable and unexplained delay in prosecution:
(1) [W]hether the plaintiff had received notice that further delays would result in dismissal; (2) whether the judge adequately assessed the efficacy of lesser sanctions before dismissal was ordered; (3) whether the conduct of the party or the attorney was willful or in bad faith; (4) the degree of actual prejudice to the opposing side or the substantial likelihood of future prejudice in the event of further delay; and (5) the merits of the plaintiff‘s claim for relief.
[¶41.] The factor approach has its advantages, though no factor should be preeminent; nor should a list of factors be viewed as a talismanic formulation of elements. But, in many ways, these factors are eminently practical. For example, it is entirely reasonable in most instances for a court to warn plaintiffs that further unnecessary delay could result in the dismissal of their complaint.
[¶42.] Together, the five non-exclusive factors listed in Eischen go a long way toward furthering the public policy goal of resolving cases on their merits. The factors are adaptable and easy for courts to apply as they consider Rule 41(b) motions. Had even the first four been applied to this case, the undisputed facts point decidedly against granting the defendants’ motion to dismiss under Rule 41(b).
[¶43.] First, Lori‘s counsel was not notified their delays may result in dismissal with prejudice. Second, the circuit court did not consider a less serious sanction before ordering dismissal.
[¶44.] Third, there is no allegation that either Lori or her attorney acted in bad faith. To the contrary, Lori‘s counsel was actively engaged in preparing her case by seeking out medical expert testimony. Her counsel‘s delay in prosecuting the case stems from his understanding that defendants were preparing a set of Bates-marked medical records.
[¶45.] And fourth, despite the court‘s emphasis on prejudice, there is no indication how the defendants were prejudiced. In finding the delay prejudiced the defendants, the court stated that “enduring the financial and emotional difficulties that come with a lawsuit is prejudice.” But this
[¶46.] Under the circumstances, we conclude the circuit court abused its discretion by granting defendants’ motion to dismiss under Rule 41(b). The court gave too much weight to a temporal delay in activity and did not consider other efforts that were ongoing and moving the case forward.
[¶47.] Because neither
Notice of Review and Insufficient Service of Process7
[¶48.] The plaintiff bears the burden “to establish a prima facie case that the service [on defendant] was proper.” R.B.O. v. Congregation of the Priests of the Sacred Heart, Inc., 2011 S.D. 87, ¶ 7, 806 N.W.2d 907, 910 (quoting Grajczyk v. Tasca, 2006 S.D. 55, ¶ 22, 717 N.W.2d 624, 631). “We review a circuit court‘s determination regarding whether a plaintiff presented a prima facie case of sufficient service de novo,” and we give “no deference to the circuit court‘s legal conclusions.” Id. (citing Grajczyk, 2006 S.D. 55, ¶ 22, 717 N.W.2d at 631). If service of process is invalid, then “the trial court had no jurisdiction to hear the case” and the action is “properly dismissed.” Lekanidis v. Bendetti, 2000 S.D. 86, ¶ 33, 613 N.W.2d 542, 549.
[¶49.] When serving process upon a defendant who is not a business entity, or public corporation, a minor, or other listed category under
and complaint intended for Dr. Miner to Marlin Klingspor, a paralegal in the offices of General Counsel for Monument Health. Dr. Miner retrieved the documents the following day from Klingspor.
[¶50.] The provisions of
[¶51.] Proof of service must include “the time, place, and manner of such service” and must be made by certificate,
[¶52.] Lori and her counsel received a return from the Pennington County Sheriff stating that a deputy had personally served Dr. Miner at the hospital on September 21, 2021. This provided prima facie evidence of valid service which Dr. Miner ultimately rebutted through his affidavit submitted as a part of his motion to dismiss. Here, however, this does not end the inquiry into the fact of service. (Emphasis added.) See Johnson v. Kusel, 298 N.W.2d 91, 93 (S.D. 1980) (“It is the fact of service, not proof thereof, that gives the court jurisdiction.” (citations omitted)).
[¶53.] Indeed, the undisputed evidence established that Dr. Miner was served, though not by the Pennington County deputy. He was, instead, personally served by Marlin Klingspor. She provided the summons and complaint to Dr. Miner, and she is (1) an elector and (2) not a party to the action as required by
[¶54.] The affidavits and deposition testimony of Dr. Miner, Klingspor, and McInerney-Hall have sufficient detail in their description of the “time, place, and manner of such service” as to establish that Dr. Miner was, in fact, served under the provisions of
[¶55.] For this reason, the case is much different than Marshall v. Warwick, 155 F.3d 1027 (8th Cir. 1998)—the principal authority cited by Dr. Miner. In Marshall, a process server gave a summons and complaint to the defendant‘s mother at the mother‘s place of employment who then provided them both to the defendant. Id. at 1029. Dr. Miner argues that Marshall institutes a rule against “second-hand service,” but the opinion contains no such holding. Instead, the Eighth Circuit Court of Appeals panel, applying South Dakota law, simply affirmed the district court‘s decision to grant the motion to dismiss because the defendant‘s mother had “submitted neither an affidavit nor written admission stating the time, place, or manner in which she delivered the summons and complaint to her son.” Id. at 1032.
[¶56.] Here, of course, there was proof of service, as we have stated, and the circuit court did not err in denying defendants’ motion to dismiss for insufficient service.9
[¶57.] The circuit court disregarded record activity within one year of the defendants’ motion to dismiss, and nothing in the record rises to the level of egregiousness of our previous cases dealing with Rule 41(b) dismissals. Rather, the delays here were neither unexplained nor unreasonable. We conclude, therefore, that the court‘s dismissal under both
[¶58.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN, Justices, concur.