Rule 41(b) Dismissals Must Be Factor‑Guided; “Record Activity” Under SDCL 15‑11‑11 Includes Verifiable Informal Discovery and Counsel Communications; Workplace Personal Service by a Nonparty Elector Is Valid

Introduction

In Olson v. Huron Regional Medical Center, Inc., 2025 S.D. 34, the Supreme Court of South Dakota addressed two recurring civil‑procedure flashpoints: (1) dismissals for failure to prosecute under SDCL 15‑11‑11 and SDCL 15‑6‑41(b) (Rule 41(b)); and (2) sufficiency of service of process under SDCL 15‑6‑4. The case arises from the death of Scott Olson after a cardiac arrest at Huron Regional Medical Center (HRMC). His widow, Lori Olson, suing individually and as personal representative of the estate, alleged negligence, wrongful death, loss of consortium, and intentional torts against HRMC, William J. Miner, M.D., and Thomas Miner, PA‑C.

The circuit court denied Dr. Miner’s initial motion to dismiss for insufficient service of process, but later dismissed the action for failure to prosecute under both SDCL 15‑11‑11 and Rule 41(b). On appeal, the Supreme Court reversed the failure‑to‑prosecute dismissals and affirmed the denial of Dr. Miner’s service‑of‑process motion. In doing so, the Court:

• Clarified that “record activity” under SDCL 15‑11‑11 includes verifiable informal discovery and inter‑counsel/staff communications that move a case forward—even when initiated or coordinated by defendants—and need not be narrowly confined to filings that visibly “move the case toward trial.”
• Reinforced that Rule 41(b) dismissals, especially with prejudice, require more than the mere passage of time; courts should assess unreasonable/unexplained delay and consider practical, less‑drastic sanctions first, guided by non‑exclusive factors such as notice, willfulness, prejudice, and the merits.
• Confirmed that personal service at a workplace is valid when a nonparty “elector” hands the summons and complaint directly to the defendant (SDCL 15‑6‑4(c), (d), (g)), and distinguished cases rejecting “second‑hand” deliveries unsupported by proper affidavits.

Summary of the Opinion

• Failure to Prosecute (SDCL 15‑11‑11): Reversed. The record showed verifiable “activity” within the year preceding the dismissal motions: cooperative efforts among counsel/staff to assemble and exchange complete medical records, delivery of personal‑representative letters, provision of a death certificate, and an attorney‑to‑attorney phone call about experts. These qualify as “record activity” under the rule.
• Failure to Prosecute (Rule 41(b)): Reversed. There was no unreasonable, unexplained delay or egregiousness comparable to prior cases; defendants suffered no cognizable prejudice beyond the inherent burdens of litigation; the circuit court relied too heavily on elapsed time and did not consider warnings or lesser sanctions.
• Service of Process: Affirmed. Although the deputy’s return (claiming personal service by a sheriff’s deputy) was rebutted, the undisputed affidavits and testimony established actual personal service on Dr. Miner the next day by a nonparty paralegal who is an “elector,” satisfying SDCL 15‑6‑4. The Court distinguished Marshall v. Warwick (8th Cir.) because, here, the “time, place, and manner” were proven by affidavit; and it reaffirmed that “the fact of service, not proof thereof,” confers jurisdiction.

Analysis

Precedents Cited and Their Influence

• Rotenberger v. Burghduff, 2007 S.D. 7: SDCL 15‑11‑11 is a “clerical tool” to clear dormant cases and dismissals under it are without prejudice. The Court leans on this characterization to caution against punitive uses of the rule.
• Annett v. American Honda Motor Co., 1996 S.D. 58: Established a two‑prong test for SDCL 15‑11‑11: (a) no activity for one year, and (b) no good cause. Olson reaffirms the threshold inactivity prong and clarifies what counts as “activity.”
• White Eagle v. City of Fort Pierre, 2002 S.D. 68: After the 1998 amendment to Rule 15‑11‑11, “informal discovery and settlement negotiations” can be “activity” if “verifiable in the record.” Olson relies on White Eagle’s verifiability concept to count informal, staff‑level, and collaborative steps as “record activity.”
• LaPlante v. GGNSC Madison, S.D., LLC, 2020 S.D. 13: Clarified that “record activity” need not appear contemporaneously in the clerk’s file; parties may establish it after the fact through affidavits and documentation. Olson extends this approach to emails, phone calls, and coordinated record collection.
• Dakota Cheese, Inc. v. Taylor, 525 N.W.2d 713 (S.D. 1995): For Rule 41(b), dismissal is an “extreme remedy,” proper only when delay is “unreasonable and unexplained,” and passage of time alone is not enough. Olson applies and underscores this standard.
• Eischen v. Wayne Township, 2008 S.D. 2: Upheld dismissal where plaintiffs were non‑responsive over years; but Justice Konenkamp’s dissent advocated a factor‑balancing test and less‑drastic sanctions first. Olson embraces the dissent’s factor‑guided analysis as a practical framework for Rule 41(b).
• Jenco, Inc. v. United Fire Group, 2003 S.D. 79: Dismissal sustained after 30 months of inactivity, lack of discovery/settlement efforts, failure to secure new counsel, and actual prejudice (key witness disappeared). Olson contrasts those egregious facts with the ongoing activity and lack of prejudice here.
• Swenson v. Sanborn County Farmers Union Oil Co., 1999 S.D. 61: Plaintiffs “could have been more persistent,” but conduct not egregious enough for dismissal. Olson treats the case similarly—imperfect diligence, but continuing progress.
• Standards of review cases: LaPlante; Frye‑Byington v. Rapid City Medical Center, LLP, 2021 S.D. 3; Field v. Field, 2020 S.D. 51; Rothluebbers v. Obee, 2003 S.D. 95; and Eighth Circuit cases (EFCO Corp. v. Aluma Systems, USA; United States v. Struzik; United States v. Moore) — all reinforce de novo review of legal conclusions and abuse‑of‑discretion review for the ultimate dismissal, including misweighting relevant factors as an abuse.
• Service of process authorities: Matchett v. Liebig (1905) (return is prima facie evidence); Carmon v. Rose (2011) and Grajczyk v. Tasca (2006) (prima facie showing); Johnson v. Kusel (1980) (fact of service, not proof, confers jurisdiction); Marshall v. Warwick, 155 F.3d 1027 (8th Cir. 1998) (distinguished because affidavits were lacking there); and Pitt‑Hart v. Sanford USD Med. Ctr., 2016 S.D. 33 (equitable tolling foreclosed in med‑mal repose)—not reached here because actual service was shown.

Legal Reasoning

1) SDCL 15‑11‑11 (Docket Management Dismissal)

The rule permits dismissal “where the record reflects that there has been no activity for one year, unless good cause is shown.” The Court clarified that:

• “Record activity” is broader than formal filings; it includes verifiable informal discovery and counsel/staff communications that advance the case, even if those steps are initiated or coordinated by defendants.
• Activity need not be contemporaneously in the clerk’s docket; it may be established later via affidavits, emails, and declarations (LaPlante; White Eagle).
• Examples in this case included: updated medical releases; provision of personal‑representative letters; supplying a death certificate upon request; ongoing defense‑led, plaintiff‑cooperative efforts to assemble and Bates‑label a complete medical record set; and a counsel‑to‑counsel phone call about experts.

Because this verifiable activity occurred within 12 months of the motions to dismiss, the statutory prerequisite of “no activity for one year” was not met. The Court therefore did not reach “good cause.” The circuit court’s narrower construction—limiting “activity” to overt steps it perceived as directly moving the case toward trial—was a legal error outside the range of permissible choices.

2) Rule 41(b) (Sanction Dismissal)

Rule 41(b) addresses sanction dismissals for failure to prosecute and can result in adjudication on the merits (with prejudice) unless otherwise specified. The Court reaffirmed:

• Dismissal with prejudice is an “extreme remedy,” appropriate only for unreasonable, unexplained delays reflecting egregiousness (Dakota Cheese; Eischen; Jenco).
• The “mere passage of time” is not dispositive; courts must evaluate the quality of the delay, communications, efforts, and prejudice.
• In Olson, counsel’s work to obtain experts, communications with defense counsel, and cooperative record‑assembly efforts demonstrated ongoing progress; no lengthy periods of unexplained inactivity or bad faith were present.
• Prejudice requires more than the ordinary financial and emotional burdens of being a litigant; it typically involves loss of evidence, vanished witnesses, or impaired defenses. Here, defendants identified no such prejudice; Dr. Miner admitted he was “not impeded or prejudiced.”

Crucially, the Court endorsed a factor‑guided approach to Rule 41(b) dismissals—long advocated in Justice Konenkamp’s Eischen dissent and widely used in the federal courts and neighboring states. The non‑exclusive factors include:

• Notice to the plaintiff that further delay could result in dismissal;
• Assessment of lesser sanctions before dismissal;
• Willfulness or bad faith;
• Actual or likely prejudice from delay;
• Merits of the plaintiff’s claim.

Applying these considerations, the Court emphasized that Olson received no warning; the circuit court did not consider lesser sanctions; no bad faith was shown; and no cognizable prejudice was established. On these facts, dismissal was an abuse of discretion.

3) Service of Process (SDCL 15‑6‑4)

The Court sorted two distinct issues: proof versus fact of service. Although the sheriff’s return was rebutted (the deputy left the papers with hospital legal staff rather than personally serving Dr. Miner), the Court reiterated that jurisdiction turns on the “fact of service, not proof thereof.”

• SDCL 15‑6‑4(d) requires personal service “to the defendant personally” unless a listed exception applies.
• SDCL 15‑6‑4(c) authorizes service by “the sheriff” or “any other person not a party to the action who … is an elector of any state.” No special appointment is required.
• SDCL 15‑6‑4(g) requires that proof include “time, place, and manner.”

Here, affidavits and deposition testimony established that the next day a nonparty paralegal—an “elector”—personally handed the summons and complaint to Dr. Miner at the hospital’s legal office (identifying time, place, and manner). That constituted valid personal service by an authorized nonparty under § 4(c), even though it occurred at a workplace. The Court distinguished Marshall v. Warwick, where “second‑hand” delivery failed because no affidavit established “time, place, and manner.” The Court also clarified that “substitute service” at a workplace is not permitted, but direct personal service at a workplace is valid.

Impact and Practical Implications

A. SDCL 15‑11‑11 (Docket Management) — Verifiable, Informal Activity Counts

• Parties can rely on informal discovery and staff‑level communications as “record activity” if they can later verify them through emails, affidavits, and declarations.
• Defense‑initiated steps performed collaboratively with plaintiffs can qualify as “activity.” Plaintiffs need not duplicate efforts already undertaken by defendants when they are cooperatively advancing the case.
• Plaintiffs should proactively memorialize communications and discovery undertakings to “keep the case afloat.” Counsel should maintain a digestible timeline and documentary support to rebut inactivity claims.

B. Rule 41(b) — Factor‑Guided, Less‑Drastic‑Sanctions First

• Trial courts are signaled to warn litigants explicitly that further delay may result in dismissal, and to consider incremental sanctions (e.g., case management orders, fees, deadlines) before imposing the “extreme remedy” of dismissal with prejudice.
• “Prejudice” must be concrete—lost evidence, faded memories, missing witnesses, or impaired defenses—not merely the ongoing burdens that attend any lawsuit.
• Passage of time alone will not justify dismissal. Courts must evaluate the quality of any delay, the explanations, the parties’ cooperative efforts, and ongoing case development (e.g., expert retention).

C. Service of Process — Confirmed Flexibility with Safeguards

• Personal service may be validly performed by any nonparty “elector,” including law‑firm staff, provided the person directly hands the papers to the defendant and the “time, place, and manner” are proven by affidavit or admission.
• Workplace personal service is permissible; workplace “substitute service” (leaving papers with someone else) is not, unless a statutory exception applies.
• If a sheriff’s return is inaccurate or rebutted, courts look to the underlying fact of service. Parties should secure and preserve affidavits from the actual server to avoid disputes.

Complex Concepts Simplified

• SDCL 15‑11‑11 (“Docket‑clearing” rule): Allows dismissal if the record shows no activity for one year, unless good cause. Activity can include informal discovery and documented communications, not just formal filings. Dismissals are without prejudice.
• Rule 41(b) (Sanctions rule): Allows dismissal for failure to prosecute or disobeying rules/orders; may be with prejudice. Courts should reserve dismissal for unreasonable, unexplained delay and consider lesser sanctions first, guided by factors such as notice, willfulness, prejudice, and merits.
• “Verifiable record activity”: Any step that advances the case (emails, phone calls, document exchanges, coordinated tasks) that can be shown later with credible documentation.
• “Elector” server (SDCL 15‑6‑4(c)): Any nonparty eligible to vote (an elector) may personally serve process; no special appointment is necessary.
• “Fact of service vs. proof of service”: Jurisdiction depends on whether service actually occurred, not on whether a return says it did. But parties still need affidavits to prove “time, place, and manner” if challenged.
• “Prejudice” for Rule 41(b): Real-world harm to the opposing party’s ability to defend (lost evidence, unavailable witnesses), not merely the general stress and costs of litigation.
• Standards of review: Factual findings—clearly erroneous; legal conclusions—de novo; ultimate Rule 41(b)/15‑11‑11 dismissal decision—abuse of discretion (including misapplying law or misweighting factors).

Practice Pointers

For Plaintiffs

• Create and maintain a running log of all informal activity (emails, calls, document exchanges, cooperation on record compilation, expert retention developments) with dates and participants.
• When defendants are assembling common discovery (e.g., Bates‑stamped medical records), document your participation and reliance to show ongoing progress.
• Push for and memorialize scheduling agreements; if delays loom, propose deadlines and case‑management orders to preempt Rule 41(b) motions.

For Defendants

• Do not rely on mere passage of time. Build a record showing lack of cooperation, ignored deadlines, and concrete prejudice where possible.
• Before seeking dismissal under Rule 41(b), consider requesting a warning order or lesser sanctions; courts will look for this incremental approach.

For Process Servers and Counsel

• Personal service can be performed by any nonparty elector; ensure the server prepares an affidavit stating the exact time, place, and manner of service.
• If a sheriff’s return is flawed, promptly secure affidavits from the actual server to establish the “fact of service.”
• Workplace personal service is permissible; avoid leaving papers with third parties at workplaces unless a statute clearly authorizes substitute service.

Conclusion

Olson v. Huron Regional Medical Center meaningfully refines South Dakota civil procedure on three fronts. First, it clarifies that “record activity” under SDCL 15‑11‑11 encompasses verifiable, informal, and collaborative steps—often conducted by staff or opposing counsel—that genuinely advance a case; as such, a narrow, filings‑only approach is improper. Second, it effectively requires a factor‑guided, less‑drastic‑sanctions‑first analysis for Rule 41(b) dismissals and reaffirms a strong presumption in favor of deciding cases on their merits absent unreasonable, unexplained, and prejudicial delay. Third, it confirms that workplace personal service by a nonparty elector is valid when backed by affidavits establishing the time, place, and manner of service—and that jurisdiction turns on the fact of service, not merely the return.

The decision gives trial courts a practical framework to manage dockets without prematurely terminating potentially meritorious suits and offers the bar concrete guidance on how to document progress, avoid dismissal pitfalls, and perfect personal service. On remand, the Olson case proceeds on the merits, with the Supreme Court’s clarifications poised to influence South Dakota civil practice well beyond this wrongful‑death action.