Steven Fischer, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0510

Steven Fischer,
Appellant,

vs.

Fischer-Kinnunen Partnership, LLP, et al.,
Respondents.

Filed November 23, 2020
Affirmed
Worke, Judge

Hennepin County District Court
File No. 27-CV-19-20425

John A. Sullivan, Best & Flanagan LLP, Minneapolis, Minnesota (for appellant)

K. Jon Breyer, Leland P. Abide, Kutak Rock LLP, Minneapolis, Minnesota (for
respondents)

Considered and decided by Smith Tracy M., Presiding Judge; Worke, Judge; and
Connolly, Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challenges the district court’s dismissal of this case, arguing that it abused
its discretion by denying his motion for relief under the requirements of Finden v. Klaas,
128 N.W.2d 748 (Minn. 1964). We affirm.

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FACTS
Appellant Steven Fischer and respondent Lisa Peterson-Kinnunen are partners in
respondent Fischer-Kinnunen Partnership LLP. When the business relationship began to
deteriorate, Fischer initiated litigation by serving respondents’ attorney with a summons
and complaint on September 14, 2018. Respondents served an answer, and Fischer served
them with discovery. The parties agreed to suspend discovery in hopes of resolving the
matter. They worked with a mediator but were unable to settle the case.
Fischer did not file the summons and complaint until December 12, 2019. In doing
so, he missed the one-year filing deadline in Minn. R. Civ. P. 5.04. The district court issued
an order to show cause why the matter should not be dismissed. Fischer answered with a
rule 60.02 motion, asking the district court not to dismiss the case because he satisfied the
Finden factors. The district court dismissed the case under rule 5.04 after concluding that
Fischer failed to satisfy the four Finden factors. This appeal followed.
D E C I S I O N
Fischer challenges the dismissal of this matter. “Any action that is not filed with
the court within one year of commencement against any party is deemed dismissed . . . .”
Minn. R. Civ. P. 5.04(a). But a district court may relieve a party from dismissal in the case
of “[m]istake, inadvertence, surprise, or excusable neglect.” Minn. R. Civ. P. 60.02(a).
The supreme court articulated a four-factor test in Finden to determine when relief should
be granted under the rule. The factors include: “(1) a reasonable defense on the merits or
. . . a debatably meritorious claim; (2) a reasonable excuse for [the] failure or neglect to
act; (3) [the exercise of] due diligence after learning of the error or omission; and (4) that
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no substantial prejudice will result to the other party.” Cole v. Wutzke, 884 N.W.2d 634,
637 (Minn. 2016).
“The decision whether to grant Rule 60.02 relief is based on all the surrounding
facts of each specific case, and is committed to the sound discretion of the district court.”
Gams v. Houghton, 884 N.W.2d 611, 620 (Minn. 2016). Appellate courts will not reverse
a district court’s decision unless there is a clear abuse of discretion. Id. “[A] district court
abuses its discretion when a movant has met the burden of clearly demonstrating the
existence of the four elements of the Finden analysis, and the court nevertheless denies
relief.” Id. (quotation omitted).
Fischer argues that the district court abused its discretion by conflating the second
and third Finden factors, misstating the third, and finding the fourth neutral after
concluding that respondents were not prejudiced. Because Fischer was required to satisfy
all four factors, we need only address his failure to satisfy one. See Gams, 884 N.W.2d at
619 (stating party must satisfy all factors in order to be granted relief). The district court
determined that the third factor—whether Fischer acted with due diligence after learning
of the error or omission—weighed “heavily” against Fischer. We agree.
Fischer first argues that the district court used the incorrect standard and that the
correct standard is what the supreme court originally art iculated in Finden—acting “with
due diligence after notice of the entry of judgment.” See 128 N.W.2d at 750. Minnesota
courts applied this standard for half a decade; however, the supreme court modified the
standard in 2016 with the simultaneous release of Cole and Gams. Cole also reiterates that
“‘due diligence’ is assessed from the time that the movant learns of his or her error or
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omission.” 884 N.W.2d at 639. Fischer relies on an unpublished decision of this court to
support his argument that the original Finden standard applies. Not only is this case
unpublished, but it was released before Cole and Gams. Its analysis is outdated and not
instructive. The district court properly applied the current caselaw.
Fischer also argues that, even if due diligence is measured from the time that he
learned of the error, he satisfied the factor because “this [c]ourt has routinely concluded
that a movant like Fischer acted diligently in bringing a motion to vacate within three to
four months of the entry of judgment.” The Finden test is a fact-specific analysis within
the discretion of the district court. See Gams, 884 N.W.2d at 620. Fischer’s attorney served
the complaint that he needed to file over a year before learning of his error. His attorney
informed him of the error four days after the filing deadline. But Fischer filed the
complaint 85 days after learning about the error. His case was deemed dismissed under a
long-standing rule. Fischer has not met his burden to show that the district court abused
its discretion in weighing the due-diligence factor against him.
The district court did not abuse its discretion by denying Fischer’s motion for relief
and appropriately dismissed the matter.
Affirmed.