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Johnson v. Siegfried (10/2/92), 838 P 2d 1252
Notice: This is subject to formal correction
before publication in the Pacific Reporter.
Readers are requested to bring typographical
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THE SUPREME COURT OF THE STATE OF ALASKA
DEBRA L. JOHNSON, )
) Supreme Court File No. S-4721
Appellant, ) Superior Court File No.
) 3AN-89-3903 Civil
GEORGE E. SIEGFRIED, M.D., ) O P I N I O N
Appellee. ) [No. 3890 - October 2, 1992]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Peter A. Michalski, Judge.
Appearances: Ralph D. Pittle, Medical
Legal Consultants of Washington, Seattle, and
Brett von Gemmingen, Anchorage, for
Appellant. Matthew K. Peterson, Hughes,
Thorsness, Gantz, Powell & Brundin,
Anchorage, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
BURKE, Justice, dissenting.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 10, 1989, Debra Lee Johnson filed a complaint
pro se against George Siegfried, M.D., alleging medical
malpractice occurring in the performance of liposuction
on May 12, 1987. Service of process was not made on
Siegfried at that time. On May 30,
1990, a Notice and Order of Dismissal was issued
pursuant to Alaska Rule of Civil Procedure 41(e).1 The
notice directed Johnson to "show cause in writing
within 30 days why this case should not be dismissed"
for lack of prosecution. Johnson responded by letter
on June 28, 1990 explaining that she was suffering from
depression and had moved to Seattle to pursue a college
degree. She also noted that she had been recovering
from mycoplasmic pneumonia and laryngitis for six
months. She requested additional time to obtain
counsel and pursue her claim.
On July 3, 1990, Judge Brian Shortell signed an order
granting Johnson 180 days "to take action to prepare
her case for trial." The order further provided that
the court would review the case in 180 days and dismiss
it pursuant to Civil Rule 41(e) "if no proceedings have
been taken during that time."
Johnson obtained counsel in Seattle who agreed to
investigate her case and determine whether to represent
her. Between August and November Johnson's counsel
sent three letters to Siegfried requesting Johnson's
medical records. The records were not sent to counsel
until the end of December. Johnson's Seattle counsel,
and Anchorage counsel retained by him, also prepared a
summons, an amended complaint and an application for an
appearance by an out of state counsel to be filed
forthwith if they determined that Johnson's claim had
merit. The documents were filed on December 28, prior
to receipt of the medical records on December 31. A
summons was issued by the clerk of court on January 2,
1991, delivered to a process server on January 3, and
served on Siegfried along with the complaint on January
Siegfried answered and filed a motion to dismiss based
on Johnson's failure to prosecute. Judge Peter A.
Michalski granted the motion, dismissing the case with
prejudice. Johnson appeals. We reverse.
A. STANDARD OF REVIEW
The determination of whether Johnson's claim was
properly dismissed involves interpretation of an order
of the trial court. This determination is a question
of law to which this court will apply its independent
judgment. See Ford v. Municipality of Anchorage, 813
P.2d 654, 655 & n.2 (Alaska 1991) (noting that
interpretation of Civil Rule 41(e) is a question of
law, but that the question of whether good cause
excused the delay was reviewed under the abuse of
discretion standard). This court has applied its
independent judgment before when interpreting the term
"proceedings" in Civil Rule 41(e). See, e.g., Power
Constructors, Inc. v. Acres American, 811 P.2d 1052,
1054 (Alaska 1991); Shiffman v. "K", Inc., 657 P.2d
401, 403-04 (Alaska 1983) (noting that inquiry was not
whether trial court had abused its discretion but
whether it "lacked discretion to dismiss the case under
that Rule"); Zeller v. Poor, 577 P.2d 695, 697 (Alaska
1978). See also First Nat'l Bank of Fairbanks v.
Taylor, 488 P.2d 1026, 1031-32 (Alaska 1971)
(interpreting "pending in court for more than one year"
by applying independent judgment).
To the extent that this court examines the merits of
the court's dismissal pursuant to the order of Judge
Shortell, the examination will be under an abuse of
discretion standard. This court will not overturn such
an order unless it finds that the trial court abused
its discretion. See Power Constructors, 811 P.2d at
1054 (reviewing a Rule 41(e) dismissal).
B. PROPRIETY OF DISMISSAL OF JOHNSON'S ACTION
Judge Shortell's order granted Johnson a grace period
to "prepare her case for trial." That was the Civil
Rule 41(e) adjudication. Judge Shortell thus asserted
control over the litigation and a subsequent dismissal
for failure to prosecute could be made only if the
requirements of that order were not met. Siegfried
does not contest the validity of that order. Although
the order provided potentially for a dismissal pursuant
to Civil Rule 41(e), we look only to the requirements
of Judge Shortell's order and not to the arguably
different requirements of Rule 41(e) in determining
whether Judge Michalski's dismissal was proper.
We believe that Johnson's actions during the 180 day
period sufficiently complied with Judge Shortell's
order. Johnson's initial delay was excused by Judge
Shortell. Her use of the full 180 day period was
authorized. The order was granted so that Johnson
would have more time to "prepare her case for trial."
Steps taken on and off the record were preparatory for
Johnson pursued her claim in one manner or another for
most of the 180 day period. She engaged both
Washington and local counsel and requested her medical
records from Siegfried. Pleadings were prepared in
anticipation of a favorable review of the medical
records. There was significant activity on the record
after the complaint was filed and served on Siegfried
before the motion to dismiss was filed.
The order conditioned dismissal on a lack of
"proceedings." Although, as noted above, we are not
analyzing the Rule 41(e) requirements, our previous
interpretations of the similar language of that rule
are helpful. We do not believe that the "proceedings"
required by this order were intended to be any more
demanding than "proceedings"required by Rule 41(e).3
This court has defined "proceeding"as a "step, act or
measure of record, by either party, which reflects that
the suit is not stagnant." Shiffman, 657 P.2d at 403.
A suit is considered stagnant "when to the court it
appears that for lack of activity of record neither
party has taken the steps, acts or measures to be
reasonably expected in the pursuit or defense of the
particular cause of action." Id.
In this case Johnson's actions on the record during the
180 day period included the filing of the amended
complaint and the Application of Non-Resident Attorney
for Permission to Appear and Participate in the
Superior Court for the State of Alaska, Third Judicial
District, both filed on December 28, 1990. The summons
was filed on December 28 and issued on January 2.4
We conclude that Johnson's actions were sufficient to
demonstrate that the case was not stagnant. The
amended complaint and the request for appearance both
demonstrate that Johnson had a serious determination to
pursue her cause of action. These "proceedings" are
comparable to those which we have held "terminate the
period of lapse"in a Rule 41(e) dismissal. Shiffman,
657 P.2d at 403 (filing of defendant's answer); Zeller,
577 P.2d at 697 (letter requesting a trial date). Cf.
Cleary Diving Serv. v. Thomas, Head & Greisen, 688 P.2d
940, 943 (Alaska 1989) (holding that a note asking the
court not to dismiss the action was not a sufficient
Siegfried argues that there was no "effective action"
during the 180 day period. He notes that the summons
was not issued until January 2 and was not served until
January 10. He notes further that the amended
complaint served on January 10 was defective.5
However, we do not believe that the "proceedings"
requirement, or any other language in the July 3 order,
requires specifically that a sufficient complaint be
filed or served, but only that measures be taken which
are "reasonably expected in the pursuit of the cause of
action."6 See Shiffman, 657 P.2d at 403. Johnson's
actions were sufficient to show that she was moving the
case forward and preparing for trial. That is all
Judge Shortell's order required.
Siegfried argues that the policy underlying the statute
of limitations would be contravened by allowing Johnson
to proceed. He notes that she did not file her
original complaint until two days before the expiration
of the limitations period and that she did not serve
him with the complaint until 20 months later. He
argues that since the object of the statute of
limitations is to protect against "the difficulties
caused by lost evidence, faded memories and
disappearing witnesses,"Byrne v. Ogle, 488 P.2d 716,
718 (Alaska 1971), Johnson's delay of over three and
one-half years from the surgery until service of the
complaint should not be condoned. See Anderson v. Air
West, Inc., 542 F.2d 522, 525 (9th Cir. 1976) (holding
that permitting a delay in service of process when the
plaintiff filed immediately prior to the running of the
limitations period "undercuts the purposes served by
However, these concerns are not determinative in this
case. Resolution of this case will depend largely on a
review of medical records and expert testimony. There
is not a significant threat of lost evidence or
disappearing witnesses. See Lee Houston & Assoc. v.
Racine, 806 P.2d 848, 855 (Alaska 1991) (reasoning that
a longer limitations period was appropriate for cases
based largely on available documentary evidence).
There is no evidence that Siegfried was prejudiced by
We conclude that the trial court abused its discretion
in dismissing Johnson's case. She pursued her case
continuously, although perhaps not urgently, throughout
the 180 day period. The case was obviously moving
toward resolution. The dismissal served no purpose,
once the case was progressing, except to sanction
Johnson for the slow pace at which she initiated the
action. See First Nat'l Bank of Fairbanks v. Taylor,
488 P.2d 1026, 1032 (Alaska 1971) (holding that it was
"neither necessary or (sic) justifiable to allow
dismissal"where the case had seen progress despite an
earlier lapse in excess of a year).
The trial court's dismissal of Johnson's claim pursuant
to Civil Rule 41(e) is REVERSED.
BURKE, Justice, dissenting.
I dissent. On the record that is before us, I fail to
see how it can be said that the superior court abused its
Some consideration should be given to the defendant's
plight. By the time the superior court ordered the case
dismissed, Siegfried had been under the cloud of the complaint
for more than two years. The plaintiff's case, however, remained
in its infancy: despite the additional time given to her, "to
prepare her case for trial,"Johnson managed to do little more
than amend her complaint and have the amended complaint and
summons served upon the defendant. The notion that Johnson
pursued her claim with reasonable diligence, during this or any
other period to date, is nonsense.
The same cloud has now remained over the defendant's
head for more than three years, and there is still no indication
that the plaintiff's case is any more ready for trial today than
on the day it was filed. The superior court's dismissal order
should, therefore, be affirmed.
1. Civil Rule 41(e) provides in part:
Actions which have been pending in
a court for more than one year without any
proceedings having been taken may be
dismissed as a matter of course, for want of
prosecution, by the court on its own motion
or on motion of a party to the action.
2. Siegfried contends that off the record activity is
irrelevant. However, the requirement that activity be
on the record is only present in the inquiry into what
constitutes "proceedings." See Shiffman v. "K", Inc.,
657 P.2d 404, 403 (Alaska 1983). Generally the court,
in determining whether to dismiss a suit, should look
to any features and circumstances of the litigation
including the off the record efforts of the plaintiff.
Brown v. State, 526 P.2d 1365, 1368 (Alaska 1974).
Siegfried's reliance on Power Constructors, Inc. v.
Acres American, 811 P.2d 1052 (Alaska 1991) is thus
misplaced. In Power Constructors we rejected the
suggestion that a pretrial memorandum filed after the
notice of dismissal was a "proceeding." Id. at 1054.
We also found that the plaintiff's delay was not
excused. Id. Neither of these holdings is relevant in
the present case.
3. Siegfried contends the extension order anticipates a
greater degree of activity than does Civil Rule 41(e).
He contends that the language of the order allowing
Johnson an extension to "prepare her case for trial"
contemplated that a valid complaint would be filed and
served upon him before the expiration of the extension
period. However, the cases cited by Siegfried do not
support the proposition that "prepare her case for
trial"creates a more demanding burden. In fact, none
of those cases use the relevant language. See Zeller,
577 P.2d at 695-98; Atlas Enter. v. Consolidated
Construction Co., 572 P.2d 68 (Alaska 1977); First
Nat'l Bank of Fairbanks v. Taylor, 488 P.2d 1026
(Alaska 1971); Silverton v. Marler, 389 P.2d 3 (Alaska
4. The parties dispute the date on which the 180 day
period expired. The order was filed on July 3, 1990,
and mailed to the parties on July 5, 1990. Johnson
contends that the extension period should run from July
5, pursuant to Alaska Rule of Civil Procedure
58.1(c)(2). The 180th day from July 5, 1990 is January
1, 1991. July 5 is not counted according to Civil Rule
6(a). Since January 1 is a legal holiday, the period
extends to January 2, 1991 pursuant to Civil Rule 6(a).
Siegfried contends that the period ended on December
31, 1991. Apparently he calculates 180 days from July
3. The 180th day would be December 30, 1990 which was
a Sunday. Therefore, pursuant to Civil Rule 6(a), the
period would run to December 31, 1990. We assume that
his use of December 31, 1991 was a mistake.
Civil Rule 58.1(c)(2) applies to the date of notice of
written orders. The date of notice is the date on
which the time to file a notice of appeal or request
for review or reconsideration begins running. Civil
Rule 58.1(b). Written orders are considered effective
on the date they are entered, that is, the date on
which the order is signed. Civil Rule 58.1(a), (a)(2).
This case does not involve the filing of a notice of
appeal or request for review or reconsideration. The
extension period thus began to run on July 3, the day
the order was entered. The 180 day period ended on
December 31, 1990.
5. The amended complaint was not in compliance with Civil
Rule 15(e), which requires that an amended complaint be
"complete in itself" and restate every pleading
incorporated from the original complaint. The amended
complaint filed on December 28 incorporated many of the
allegations of the original complaint by reference
only. Siegfried claims that this defect is especially
prejudicial here where he was never served with the
6. This case is distinguishable from Silverton v. Marler,
389 P.2d 3 (Alaska 1964). In Silverton, the case was
dismissed for failure to prosecute based on an
unexcused two year and eight month delay between filing
of the complaint and service of process. Id. at 6.
Johnson's initial delay was excused by the trial court.
Service of process was ultimately accomplished soon
after the amended complaint was filed.