MN Case Reinstated After Lawyer Misunderstands New Rule

Minnesota case law summary by Attorney Richard Clem: civil procedure.

Jerry Wayne Cole v. Alexander Allen Wutzke. MN civil procedure

Until 2013, Civil Actions in Minnesota could proceed for years without ever being filed with the court. This is because Minnesota Rule of Civil Procedure 3.01 states that a civil action is commenced "when the summons is served upon that defendant." The normal practice is for a Minnesota attorney to draft the summons and complaint and serve it upon the defendant without first filing with the court. Normally, the documents contain a blank line stating "Court File No. ___________." Occasionally, Minnesota defendants are under the mistaken impression that the documents aren't "real" because they don't contain a number or any official-looking stamps or seals.

This changed somewhat in 2013 with an amendment to Rule 5.04(a), which now provides:

Any action [with some exceptions] that is not filed with the court within one year of commencement against any party is deemed dismissed with prejudice against all parties unless the parties within that year sign a stipulation to extend the filing period.

The summons in this case was served in 2013 (prior to the amendment), but never filed with the court. Discovery took place, and the defendant even admitted liability. The attorney was under the mistaken impression that the new amendment did not apply to pending cases. Therefore, in 2014, after the one-year deadline for filing expired, the defendant moved to dismiss, which the district court granted. The plaintiff's attorney threw himself on the mercy of the court, arguing that the error was excusable neglect under rule 60.02. The district court, Anoka County, showed no mercy, noting that ignorance of the law does not constitute excusable neglect.

The plaintiff appealed to the Minnesota Court of Appeals, which was more merciful. It noted that Minnesota courts are reluctant to burden unwitting clients with the consequences of their attorney's error. For this reason, it reversed the district court's judgment and sent the case back for reinstatement.

No. A15-0060 (Minn. Ct. App. Aug. 31, 2015)

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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