Olson v. Huron Regional Medical Center, Inc.

#30697, #30705-aff in pt & rev in pt-MES
2025 S.D. 34

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

LORI A. OLSON, Individually and
as the personal representative of the
ESTATE OF SCOTT D. OLSON,
a deceased person, Plaintiffs and Appellants,

v.

HURON REGIONAL MEDICAL
CENTER, INC., WILLIAM J.
MINER, M.D., and THOMAS MINER, Defendants and Appellees.
****

APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
BEADLE COUNTY, SOUTH DAKOTA

****

THE HONORABLE PATRICK T. PARDY
Judge

****

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.

****

CONSIDERED ON BRIEFS
FEBRUARY 18, 2025
OPINION FILED 07/09/25
****

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.
#30697, #30705

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.

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[¶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 office the next day, September 22,

where he claimed the summons and complaint from Klingspor. Significantly, the

deputy completed the proof of service document stating he had “served” Dr. Miner

at Monument Health.

[¶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.

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[¶7.] On February 10, 2022, after SDCL 15-2-14.1’s two-year statute of

repose had ran, Dr. Miner moved for dismissal claiming that Lori had “failed to

serve him with process[.]” Lori resisted the motion and advanced four separate

arguments: (1) Dr. Miner had been served by an “elector” under SDCL 15-6-4(c)

through the efforts of Klingspor, the paralegal at Monument Health; (2) Dr. Miner

waived his right to challenge service by participating in the litigation; (3) Dr. Miner

was either estopped from challenging service or Lori was entitled to equitable

tolling; and (4) the intentional torts alleged in the complaint were not subject to the

two-year statute of repose and should not, in any event, be dismissed. Lori

arranged to have Dr. Miner personally served with the summons and complaint at

his home on February 25.

[¶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. 10F

[¶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

1. The case was originally assigned to the Honorable Kent Shelton who decided
Dr. Miner’s motion to dismiss for lack of service. Judge Shelton later recused
himself, and the case was assigned to the Honorable Patrick Pardy.
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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.

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• 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 SDCL 15-11-11 and SDCL 15-6-41(b) (Rule 41(b)). HRMC and Mr. Miner

subsequently joined the motion. In his motion, Dr. Miner alleged the case had been

inactive for more than twelve months in violation of SDCL 15-11-11, or, that Lori

had failed to prosecute it under Rule 41(b). Dr. Miner, through counsel, submitted

an affidavit contending “no other activity has occurred in this file since January 6,

2023.”

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[¶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 SDCL 15-11-11 and Rule 41(b) in a March 2024 memorandum

opinion. Under SDCL 15-11-11, the court construed “activity” narrowly as

communication between parties that “mov[es] the case towards trial.” Noting that

Lori last communicated with Dr. Miner through counsel on January 6, 2023, one

year before the January 8, 2024 motion to dismiss, the court determined that “[t]he

period of inactivity . . . clearly exceed[ed] the twelve-month statutory minimum[.]”

With respect to HRMC and Mr. Miner, the court noted communication between the

parties within twelve months of the motion. But in the court’s view, this

communication did not qualify as “activity” because it “was not moving the case

towards trial.” The court further concluded that Lori’s work with experts was

insufficient to qualify as “activity.”

[¶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 SDCL 15-11-11, the court included

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language describing an “unreasonable, unexplained delay,” which is the standard

from Rule 41(b), not SDCL 15-11-11.

[¶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 SDCL 15-11-11

and Rule 41(b). By notice of review, Dr. Miner contends the court erred in denying

his motion to dismiss for insufficient service.

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 SDCL 15-11-11 or Rule 41(b). For the first two,

“we review the ‘circuit court’s findings of fact under the clearly erroneous standard,

while we apply the de novo standard when reviewing its conclusions of law.’”

LaPlante v. GGNSC Madison, S.D., LLC, 2020 S.D. 13, ¶ 11, 941 N.W.2d 223, 227

(quoting Eischen v. Wayne Twp., 2008 S.D. 2, ¶ 10, 744 N.W.2d 788, 794).

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#30697, #30705

[¶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).

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#30697, #30705

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 SDCL 15-

11-11 and Rule 41(b) to dismiss civil actions for want of prosecution. But despite

the similar subject matter and overlapping considerations, the two rules are

distinct. In his dissent in Eischen, Justice Konenkamp observed “we have never

distinguished which rule applies in different circumstances[,]” nor developed a

“clear guide on how and when each should be used.” Eischen, 2008 S.D. 2, ¶ 38, 744

N.W.2d at 800 (Konenkamp, J., dissenting).

[¶21.] We have, however, repeatedly emphasized that SDCL 15-11-11 is

“meant to operate as a clerical tool” that helps “a court to clear its docket after a

quota of inactivity is met.” Rotenberger v. Burghduff, 2007 S.D. 7, ¶ 16, 727 N.W.2d

291, 295. Since it is merely a court management tool, “a dismissal under SDCL 15-

11-11 is without prejudice.” Id. ¶ 14.

[¶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, “the

dismissal [under Rule 41(b)] may be with or without prejudice.” Id. (citing SDCL

15-6-41(b)). Because dismissal with prejudice is such “an extreme remedy,” our

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cases emphasize that it should only be used “when there is an unreasonable and

unexplained delay.” Dakota Cheese, Inc. v. Taylor, 525 N.W.2d 713, 715 (S.D. 1995)

(citations omitted). Further, under Rule 41(b), “the mere passage of time is not the

proper test to determine whether the delay in prosecution warrants dismissal.” Id.

at 716 (citations omitted).

SDCL 15-11-11

[¶23.] The text of SDCL 15-11-11 provides as follows:

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) no activity for one year, and, b) no showing of good

cause which excuses the inactivity.” Annett v. Am. Honda Motor Co., 1996 S.D. 58,

¶ 14, 548 N.W.2d 798, 803 (citing SDCL 15-11-11). Unfortunately, the second

sentence of SDCL 15-11-11 appears to mix the concepts of record inactivity and just

cause by stating, “The term ‘record,’ for purposes of establishing good cause shall

include . . . .” Perhaps this has contributed, at least in part, to some confusion

regarding the record-inactivity requirement.

[¶25.] In White Eagle v. City of Fort Pierre, we observed that prior to a 1998

amendment that added the second sentence to SDCL 15-11-11, “we rejected

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‘informal discovery and settlement negotiations’ as a form of ‘activity[.]”’ 2 2002 S.D.
1F

68, ¶ 7, 647 N.W.2d 716, 719 (quoting Annett, 1996 S.D. 58, ¶ 18, 548 N.W.2d at

803). However, we reconciled the amended language and our prior decisions by

focusing on the need for the activity to be “verifiable in the record before us[.]” Id.

¶ 8 (emphasis added).

[¶26.] Indeed, we recently clarified that SDCL 15-11-11 does not require

activity in the actual clerk’s record. In LaPlante, we relied upon our SDCL 15-11-11

holdings to interpret a similar rule that applies to administrative workers’

compensation cases:

“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

2. In White Eagle, we incorrectly stated “the Legislature added this language[.]”
2002 S.D. 68, ¶ 6, 647 N.W.2d at 719. The Legislature did not amend SDCL
15-11-11; it is a court rule that we amended following a rules hearing on
February 20, 1998.
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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 not access to the documents; it is the

verifiable activity that was occurring to move the case forward. Lori was working

with defendants as they sought to develop a comprehensive and complete set of all

Scott’s medical records which would then be shared among the parties, numbered

for a common evidentiary reference point, and used throughout the litigation. 3 2F

3. The circuit court stated that the “Defendants need only meet Plaintiff step by
step[,]” which is a reference to our decisions holding that “[p]laintiffs bear the
duty to advance their cases, while defendants need only meet plaintiffs’
actions step by step.” LaPlante, 2020 S.D. 13, ¶ 15, 941 N.W.2d at 228
(alteration in original) (quoting Moore v. Michelin Tire Co., Inc., 1999 S.D.
152, ¶ 49, 603 N.W.2d 513, 526). However, this principle does not mean that
efforts by the defense, taken in concert with a plaintiff, cannot constitute
verifiable activity to move the case forward.
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[¶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 SDCL 15-11-11. It is unnecessary, therefore, to address good

cause. Accordingly, we conclude the circuit court’s decision granting the defendants’

motion to dismiss for failure to prosecute under SDCL 15-11-11 constitutes “a choice

outside the range of permissible choices[.]” Frye-Byington, 2021 S.D. 3, ¶ 10, 954

N.W.2d at 317 (citation omitted).

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.

SDCL 15-6-41(b).

[¶33.] This rule of civil procedure is distinct from SDCL 15-11-11 and

requires a different legal analysis. Unlike SDCL 15-11-11, dismissal is not based on

a particular period of inactivity. Instead, dismissal under Rule 41(b) depends upon

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whether a plaintiff’s conduct “rise[s] to the level of egregiousness which should

preclude [the case] from proceeding[.]” Swenson v. Sanborn Cnty. Farmers Union

Oil Co., 1999 S.D. 61, ¶ 22, 594 N.W.2d 339, 345. Rule 41(b), by its nature, permits

a court to be more qualitative in its analysis of the motion to dismiss.

[¶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 in the case for thirty months, no

discovery or settlement negotiations, no agreements between opposing counsel to

justify the delay, no explanation for the plaintiff’s failure to obtain substitute

counsel, and actual prejudice to the defendant in the form of the disappearance of a

key witness during the period of delay. 2003 S.D. 79, ¶¶ 12–19, 666 N.W.2d at 766–

68. We also found egregious conduct in Eischen when “there were only two other

acts [initiated by plaintiffs] during the ensuing three years and nine months[.]”

Eischen, 2008 S.D. 2, ¶ 20, 744 N.W.2d at 797. Additionally, in Eischen, plaintiff’s

counsel “repeatedly caused the postponement of hearings or failed to deliver

responsive pleadings in a timely manner as agreed.” Id.

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[¶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

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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
3F

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 has adopted some type of factor balancing test “to ensure that

meritorious cases are not unfairly or unnecessarily thrown out of court.” 5 Id.
4F

4. Justice Meierhenry joined Justice Konenkamp’s dissent in Eischen. Justice
Sabers concurred specially, supplying the third vote for the majority, but he
stated that he “generally agree[d] with the spirit of [Justice Konenkamp’s]
dissent[.]” Eischen, 2008 S.D. 2, ¶ 33, 744 N.W.2d 799 (Sabers, J., concurring
specially).

5. Several surrounding states have also adopted such a balancing approach
before deciding to dismiss a case with prejudice. See, e.g., Schultz v. State,
992 N.W.2d 779, 785–87 (Neb. Ct. App. 2023) (reasoning that a court’s need
to manage its docket, the desirousness of deciding cases on their merits, and
the availability of less drastic sanctions are all relevant before dismissing a
case); 2049 Grp. Ltd. v. Galt Sand Co., 526 N.W.2d 876, 878 (Iowa Ct. App.
1994) (holding dismissal of a case without considering the array of lesser
sanctions available amounted to abuse of discretion); Zepeda v. Cool, 963
N.W.2d 282, 285 (N.D. 2021) (requiring courts to balance several factors
against “the great reluctance to impose the harsh remedy of dismissal” in
order to advance the goal of deciding cases on their merits).
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[¶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.

Id. ¶ 42. 6
5F

[¶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).

6. In creating this list of factors, Justice Konenkamp relied on the following
cases: Shannon v. Gen. Elec. Co., 186 F.3d 186, 193–94 (2d Cir. 1999); Knoll
v. Am. Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999); Ehrenhaus v.
Reynolds, 965 F.2d 916, 921 (10th Cir. 1992); Poulis v. State Farm Fire &
Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984); Harding v. Fed. Reserve Bank of
N.Y., 707 F.2d 46, 50 (2d Cir. 1983).
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[¶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 type of burden exists as an

immutable consequence for all litigation defendants. There is no allegation that the

elapsed time prior to the defendants’ motion to dismiss compromised their defenses

in some way, such as through the destruction of evidence or the loss of witness

testimony.

[¶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 SDCL 15-11-11 nor Rule 41(b) support the circuit

court’s dismissal, we reverse its decision granting the defendants’ motion to dismiss

for failure to prosecute and turn now to Dr. Miner’s notice of review issue.

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Notice of Review and Insufficient Service of Process 7 6F

[¶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 SDCL 15-6-4(d), service

must be made “[i]n all other cases, to the defendant personally[.]” SDCL 15-6-4(d). 8 7F

On September 21, 2021, a Pennington County sheriff’s deputy delivered a summons

7. The question of the sufficiency of service upon Dr. Miner impacts the court’s
personal jurisdiction over him, and could, for this reason, be viewed as a
threshold issue, at least as it relates to him. We have, however, elected to
address the failure to prosecute issues relating to all defendants first, and
given our disposition of the issues, we perceive no consequence to the way the
issues have been ordered.

8. In his brief, Dr. Miner correctly asserts that giving the summons and
complaint to Klingspor was “not valid substitute service.” We agree but note
that the point does not appear to be controverted. Because service of process
occurred at Dr. Miner’s workplace—and not at a residence—the substituted
service method is not implicated here. See SDCL 15-6-4(e) (“If the defendant
cannot be found conveniently, service may be made by leaving a copy at the
defendant’s dwelling with someone over the age of fourteen years who resides
there.” (Emphasis added)).
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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 SDCL 15-6-4(c) provide, in part, “[t]he summons may

be served by the sheriff or . . . by any other person not a party to the action who at

the time of making such service is an elector of any state.” SDCL 15-6-4(c).

Further, “[t]he service shall be made and the summons returned with proof of the

service, with all reasonable diligence, to the plaintiff’s attorney, if any, otherwise to

the plaintiff.” Id.

[¶51.] Proof of service must include “the time, place, and manner of such

service” and must be made by certificate, affidavit, or written admission. See SDCL

15-6-4(g)(1)-(3). We have long held that “[t]he return of service, either by a sheriff

or by a disinterested person authorized by law to make it, is prima facie evidence of

the material facts” it contains. Matchett v. Liebig, 20 S.D. 169, 105 N.W. 170, 171

(1905) (citation omitted). Further, “[t]here is no real distinction between the return

of an officer and that of a person authorized to make the service[,]” such as an

elector. Id. (citation omitted). “A valid return of service establishes a prima facie

showing of proper service.” Carmon v. Rose, 2011 S.D. 18, ¶ 3, 797 N.W.2d 336, 338

(citing Grajczyk, 2006 S.D. 55, ¶ 22, 717 N.W.2d at 631).

[¶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

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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

SDCL 15-6-4(c).

[¶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 SDCL 15-6-4(g). In her February 2022 affidavit, McInerney-Hall

testified: “On September 22, 2021, Dr. Miner came to my office and retrieved the

Summons, Complaint, and Demand Letter.” Further, Klingspor testified that she

initially received the summons and complaint from the deputy on September 21,

and the following afternoon, when Dr. Miner visited the legal office, she opened the

door and handed him the summons and complaint. This aligns with Dr. Miner’s

deposition testimony as well as his February 2022 affidavit in which he

acknowledges the time (September 22, 2021), place (“office of Monument Health’s

legal counsel”), and manner of service (personal service—“[Klingspor] handed [the

legal papers] to me through the doorway”).

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[¶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. 155 F.3d 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. 98F

Conclusion

[¶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,

9. Having determined the existence of a sufficient basis for affirming the circuit
court’s decision to deny Dr. Miner’s motion to dismiss, it is unnecessary to
address his arguments concerning the court’s alternate bases, except perhaps
to clarify that the court’s reliance upon the doctrine of equitable tolling is
foreclosed by our decision in Pitt-Hart v. Sanford USD Med. Ctr., 2016 S.D.
33, ¶ 21–22, 878 N.W.2d 406, 414.
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that the court’s dismissal under both SDCL 15-11-11 and Rule 41(b) was not within

the range of permissible choices, and we reverse the court’s order granting the

defendants’ motion to dismiss for failure to prosecute. However, we affirm the

court’s order denying Dr. Miner’s motion to dismiss for insufficient service of

process.

[¶58.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN,

Justices, concur.

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