#29075-r-SRJ

2020 S.D. 13

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

CHRISTINA LAPLANTE, Claimant and Appellant,

v.

GGNSC MADISON, SOUTH DAKOTA,

LLC d/b/a GOLDEN LIVING CENTER –

MADISON and INSURANCE COMPANY

OF THE STATE OF PENNSYLVANIA, Employer, Insurer and

Appellees.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE THIRD JUDICIAL CIRCUIT

LAKE COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE PATRICK T. PARDY

Judge

* * * *

A. RUSSELL JANKLOW

JAMI J. BISHOP of

Johnson, Janklow, Abdallah,

 & Reiter, LLP

Sioux Falls, South Dakota Attorneys for claimant and 

appellant.

JUSTIN T. CLARKE

REECE M. ALMOND of

Davenport, Evans, Hurwitz

 & Smith, LLP

Sioux Falls, South Dakota Attorneys for employer, insurer, 

and appellees.

* * * *

CONSIDERED ON BRIEFS

FEBRUARY 11, 2020

OPINION FILED 03/18/20
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JENSEN, Justice

[¶1.] Christina LaPlante was injured while working as a certified nursing 

assistant at GGNSC Madison, South Dakota LLC d/b/a Golden Living Center –

Madison (GGNSC). LaPlante filed a petition with the South Dakota Department of 

Labor (Department) seeking workers’ compensation benefits on October 29, 2015. 

On April 3, 2018, GGNSC and Insurance Company of the State of Pennsylvania 

(Employer/Insurer) filed a motion to dismiss the petition for lack of prosecution 

pursuant to ARSD 47:03:01:09.1 The Department granted the motion to dismiss 

and LaPlante appealed to the circuit court. The circuit court affirmed the dismissal. 

LaPlante now appeals to this Court.2 We reverse.

Background

[¶2.] On August 9, 2012, LaPlante was injured when her right wrist was 

lodged between a metal grab bar on the wall and the automatic lift she was using to 

assist a resident at the GGNSC facility. She reported the injury and received 

periodic medical treatment to her right hand, thumb, and wrist. In 2013, LaPlante 

underwent surgery on her wrist. LaPlante continued to seek medical treatment 

following the surgery, and claimed she was unable to work due to her injury.

 

1. ARSD 47:03:01:09 provides:

With prior written notice to counsel of record, the division may, upon 

its own motion or the motion of a defending party, dismiss any petition 

for want of prosecution if there has been no activity for at least one 

year, unless good cause is shown to the contrary. Dismissal under this 

section shall be with prejudice.

2. LaPlante’s appellate counsel did not represent her before the Department or 

the circuit court.
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[¶3.] Employer/Insurer eventually denied ongoing workers’ compensation 

benefits to LaPlante. LaPlante then filed a petition with the Department seeking 

disability benefits and medical expenses. Employer/Insurer answered on November 

19, 2015. The parties exchanged written discovery in March 2016. LaPlante’s 

deposition was taken in July 2016.

[¶4.] On August 26, 2016, LaPlante presented a settlement demand to 

Employer/Insurer. The demand requested temporary total and permanent partial 

disability benefits, mileage reimbursement, unpaid medical expenses, and 

vocational rehabilitation benefits. LaPlante also completed a functional capacity 

evaluation (FCE) that she forwarded to Employer/Insurer in September 2016 as a 

part of the settlement discussions. Employer/Insurer submitted a counter-proposal 

for settlement to LaPlante in October 2016. LaPlante did not respond to the 

counter-proposal.

[¶5.] Instead, LaPlante applied for vocational rehabilitation assistance from 

the South Dakota Department of Human Services in December 2016 to assist in 

finding employment within her physical limitations identified in the FCE. 

LaPlante was accepted into a twelve-month vocational rehabilitation program in 

March 2017. LaPlante also made several requests from January through April 3, 

2017, to obtain medical records held by Human Services concerning her work injury 

and physical limitations. She received a report of her Individualized Plan for 

Employment from Human Services on April 5, 2017.

[¶6.] LaPlante did not inform Employer/Insurer that she was participating 

in the vocational rehabilitation program. However, she did inform 
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Employer/Insurer on March 8, 2017, that she was having problems obtaining 

records from Human Services, and that she was scheduled to undergo an evaluation 

with Human Services. LaPlante continued to participate in the vocational 

rehabilitation program until she obtained employment and successfully completed 

the program in November 2017.3

[¶7.] On September 22, 2017, counsel for Employer/Insurer sent a letter to 

counsel for LaPlante. The letter stated, “You need to get back to us with respect to 

the settlement offer made last fall. This claim has been lying dormant for more 

than a year, and either we need to get it settled, or get a scheduling order and 

complete discovery. May I hear from you?” Neither LaPlante nor her lawyer 

responded to the letter or communicated further with Employer/Insurer. On April 

3, 2018, Employer/Insurer filed a motion to dismiss with the Department for lack of 

prosecution under ARSD 47:03:01:09. Employer/Insurer asserted in its affidavit 

and brief that there had been no activity for at least one year, and LaPlante had 

failed to show good cause for the delay. LaPlante submitted an affidavit and brief 

asserting her efforts to obtain records and her involvement in the vocational 

 

3. In an affidavit filed with the Department resisting the motion to dismiss, 

LaPlante stated that she completed the vocational rehabilitation program in 

September 2017. Based upon this affidavit, the Department found that 

LaPlante participated in the program from March to September 2017. On 

appeal to the circuit court, LaPlante submitted an application to submit 

additional evidence, along with an affidavit and documentation she received 

from Human Services after the hearing before the Department, showing that 

she had not completed the vocational rehabilitation program until November 

2017. Based upon the supplemental record, the circuit court found that 

LaPlante participated in the vocational rehabilitation program from March to 

November 2017. Employer/Insurer has not challenged the circuit court’s 

finding on appeal.
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rehabilitation program constituted activity under ARSD 47:03:01:09, and in the 

alternative, asserted that these efforts established a good cause for delay. LaPlante 

requested the Department deny the motion to dismiss and enter a scheduling order.

[¶8.] On June 20, 2018, the Department entered a memorandum decision 

dismissing the petition under ARSD 47:03:01:09. The Department found that 

LaPlante had finished the vocational rehabilitation program less than one year 

before the motion to dismiss was filed. However, the Department concluded there 

had been no activity within the last year because “there has not been record activity 

and no effort was made to communicate with the Employer and Insurer.” In 

discussing whether there was good cause for the delay, the Department agreed that 

“waiting on the results of the voc rehab program would be good cause for delay[,]” 

but found LaPlante’s participation was not good cause because it was not 

communicated to Employer/Insurer.

[¶9.] On appeal, the circuit court entered a memorandum decision affirming 

the Department’s decision. The court likewise concluded there had been no “record 

activity” before the Department for a period of at least one year before the motion 

was filed. The court also affirmed the Department’s determination that LaPlante 

failed to show good cause for the absence of any activity.

[¶10.] LaPlante appeals, arguing that the Department and circuit court erred 

in determining there was no activity for a period of one year. She also argues that 

the Department and circuit court erred in concluding that her participation in the 

vocational rehabilitation program did not constitute good cause.
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Standard of Review

[¶11.] This Court has not previously considered the dismissal of a workers’ 

compensation petition by the Department under ARSD 47:03:01:09 or the 

appropriate standard of review for such a dismissal. In considering the dismissal of 

a civil case for failure to prosecute under SDCL 15-11-11 or SDCL 15-6-41(b), 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.” 

Eischen v. Wayne Twp., 2008 S.D. 2, ¶ 10, 744 N.W.2d 788, 794. We review the 

circuit court’s ultimate decision to dismiss “a claim for failure to prosecute using the 

abuse of discretion standard.” Id.

[¶12.] Because the language of ARSD 47:03:01:09 also provides the 

Department with discretion to determine whether to dismiss a petition when there 

has been no activity for more than a year and no showing of good cause, we will 

likewise apply the abuse of discretion standard. In workers’ compensation cases, we 

review both findings of fact and conclusions of law de novo when the Department’s 

findings are based solely on documentary evidence presented to the Department, as 

was the case here. Martz v. Hills Materials, 2014 S.D. 83, ¶ 14, 857 N.W.2d 413, 

417.

Analysis & Decision

1. Whether the Department abused its discretion in 

dismissing LaPlante’s workers’ compensation petition for 

failure to prosecute under ARSD 47:03:01:09.

[¶13.] The Department may dismiss a workers’ compensation petition under 

ARSD 47:03:01:09 when there has been “no activity for at least one year, unless 
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good cause is shown[.]” The Rule does not define the term “activity,” which is the 

threshold basis for considering whether to dismiss a case for lack of prosecution. 

The Rule also does not define the term “good cause.”

[¶14.] In the absence of a decision from this Court considering ARSD 

47:03:01:09, both parties cite cases interpreting SDCL 15-11-114 and SDCL 15-6-

41(b),5 which address the dismissal of a civil case for failure to prosecute. A court 

may dismiss a civil case pursuant to SDCL 15-11-11 where the “record reflects that 

there has been no activity for one year.” Under SDCL 15-11-11, “[a] plaintiff’s 

failure to proceed with a case for a year or more clearly gives a defendant grounds to 

move for failure to prosecute.” White Eagle v. City of Fort Pierre, 2002 S.D. 68, ¶ 10, 

647 N.W.2d 716, 720. In contrast, SDCL 15-6-41(b) does not set a length of time 

 

4. SDCL 15-11-11 provides:

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.

5. SDCL 15-6-41(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 and any dismissal not provided for 

in § 15-6-41, other than a dismissal for lack of jurisdiction, or for 

failure to join a party under § 15-6-19, operates as an 

adjudication upon the merits.
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that must pass without activity, but rather permits a defendant to move for 

dismissal when a plaintiff has failed to prosecute a case. In addressing SDCL 15-6-

41(b), we have stated that “[n]o requisite period of inactivity is mandated by the 

statute.” Eischen, 2008 S.D. 2, ¶ 12, 744 N.W.2d at 795.

[¶15.] In considering motions to dismiss for failure to prosecute a civil case, 

this Court has stated that “[p]laintiffs bear the duty to advance their cases, while 

defendants need only meet plaintiffs’ actions step by step.” Moore v. Michelin Tire 

Co., Inc., 1999 S.D. 152, ¶ 49, 603 N.W.2d 513, 526. We have explained that the 

purpose of the rule is to permit “trial courts [to] take an active role in monitoring 

their dockets.” Id. However, “[t]he goal of the courts is justice—docket control and 

calendar clearance are secondary concerns.” Id. In reviewing dismissals for lack of 

prosecution under SDCL 15-11-11 and SDCL 15-6-41(b), we have cautioned that “a 

dismissal of an action for failure to prosecute is an extreme remedy and should be 

used only when there is an unreasonable and unexplained delay.” Annett v. Am. 

Honda Motor Co., Inc., 1996 S.D. 58, ¶ 12, 548 N.W.2d 798, 802 (quoting Dakota 

Cheese, Inc. v. Taylor, 525 N.W.2d 713, 715-16 (S.D. 1995). “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.

[¶16.] The Department’s rule permitting the dismissal of a workers’ 

compensation administrative proceeding for failure to prosecute under ARSD 

47:03:01:09 most closely parallels the language of SDCL 15-11-11. The predicate to 

consider a dismissal under either rule requires the absence of activity for a period of 
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one year. SDCL 15-11-11 additionally provides that the court may enter a dismissal 

where the “record reflects” there has been no activity for one year. In contrast, 

there is nothing in ARSD 47:03:01:09 that requires the activity to be shown on the 

record.

[¶17.] One stark difference between ARSD 47:03:01:09 and SDCL 15-11-11 is 

the effect of the dismissal. ARSD 47:03:01:09 requires the dismissal to be entered 

with prejudice. In contrast, a dismissal under SDCL 15-11-11 does not operate as a 

dismissal with prejudice. Rotenberger v. Burghduff, 2007 S.D. 7, ¶ 16, 727 N.W.2d 

291, 295. SDCL 15-11-11 “was meant to operate as a clerical tool, not a substantive 

dismissal.” Id. SDCL 15-11-11 “was not meant to forever bar a case.” Id. “A case 

should not be dismissed with prejudice merely because the statute allows a court to 

clear its docket after a quota of inactivity is met.”6 Id.

 

6. Like SDCL 15-11-11, ARSD 47:03:01:09 is a docket management tool created 

by the Department to dismiss a case when there has been no activity for a 

period of at least one year. This Court’s unwillingness to use such a rule to 

dispose of civil cases with prejudice raises questions regarding the 

Department’s implementation of a similar rule requiring the dismissal to 

operate as an adjudication on the merits. Additionally, the Department’s use 

of such a rule to mandatorily dismiss a workers’ compensation petition with 

prejudice may stand in tension with the legislatively created procedures and 

remedies “to provide for employees who have lost their ability to earn because 

of an employment related accident, casualty, or disease.” Sopko v. C & R 

Transfer Co., Inc., 1998 S.D. 8, ¶ 8, 575 N.W.2d 225, 229. 

We also note that while a dismissal with prejudice for failure to prosecute 

under SDCL 15-6-41(b) generally operates as a dismissal on the merits, the 

court always retains the discretion to decide, based upon the particular facts 

involved, whether a dismissal without prejudice is appropriate. No such 

discretion is afforded under ARSD 47:03:01:09. In other contexts, we have 

expressed the importance of a court’s exercise of its discretion when 

considering whether to dismiss a case on the merits when a party has failed 

to comply with a procedural rule. “[C]ases should ordinarily be decided on 

(continued . . .)
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[¶18.] In considering SDCL 15-11-11 in civil cases, we have not confined the 

term “activity” to court filings or a particular communication between the parties. 

Instead, we have placed an affirmative duty on a plaintiff to engage in activity that 

moves the case forward. Consistent with the language of SDCL 15-11-11, we have 

always required that the activity must be shown on record before a dismissal is 

entered. White Eagle, 2002 S.D. 68, ¶ 6, 647 N.W.2d at 719. “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.” Id. ¶ 8 (emphasis added). 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.” Id. ¶ 11.

[¶19.] In White Eagle, the Court affirmed a dismissal for lack of activity 

under SDCL 15-11-11, despite plaintiff’s claim that he had been engaged in making 

Freedom of Information Requests to gather additional facts concerning his lawsuit. 

Without determining whether such efforts constituted “activity”, we stated, “[i]f 

these types of requests were being made by [plaintiff] within the year prior to the 

________________________

(. . . continued)

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. Because of our 

disposition of this case, we leave for another day whether the mandatory 

dismissal with prejudice of a workers’ compensation petition under ARSD 

47:03:01:09 is proper.
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motion to dismiss, he should have presented evidence to the court below 

demonstrating such activity. The record here fails to support such contentions.” Id. 

¶ 9, 647 N.W.2d at 720. See also Annett, 1996 S.D. 58, ¶ 19, 548 N.W.2d at 803 

(“[T]he settled record in this case contains no proof of the discovery or settlement 

negotiations that [plaintiff] asserts.”); Holmoe v. Reuss, 403 N.W.2d 30, 31 (S.D. 

1987) (rejecting a claim of settlement negotiations and correspondence as activity 

because “there is no proof of this in the settled record and we refuse to consider it.”).

[¶20.] Here, the Department found LaPlante participated in the vocational 

rehabilitation program within less than a year before the motion to dismiss was 

filed, but concluded there was no activity for at least a year because:

Claimant has not responded to Employer and Insurer’s October 

2016 settlement offer. There has been no formal or informal 

settlement negotiations, discovery, nor exchange of pleadings in 

the past year. Claimant finished the voc rehab program in 

September 2017, but no communication was made to Employer 

and Insurer. There has not been record activity and no effort 

was made to communicate with Employer and Insurer within 

the last year.

[¶21.] The circuit court also found that LaPlante participated in the 

vocational rehabilitation program within one year of the filing of the motion to 

dismiss. However, the court concluded LaPlante’s completion of the program was 

not “activity” under ARSD 47:03:01:09 because “[LaPlante’s] last correspondence to 

[Employer/Insurer] as reflected in the administrative record occurred on March 6, 

2017. The only other communication during the relevant time period was sent by 

[Employer/Insurer] on September 22, 2017, to which [LaPlante] did not respond.”

[¶22.] The Department and the circuit court read the term “activity” too 

narrowly. ARSD 47:03:01:09 does not define activity, nor does the Rule include 
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language requiring “record activity,” as is the case under SDCL 15-11-11. Further, 

workers’ compensation administrative rules, like the statutes that the rules 

implement, are to be construed liberally in favor of the claimant. See, e.g. Sopko, 

1998 S.D. 8, ¶ 8, 575 N.W.2d at 229 (“[W]orkers’ compensation statutes should be 

construed liberally in favor of injured employees.”); Welch v. Auto. Co., 528 N.W.2d 

406, 409 (S.D. 1995). Liberally construing ARSD 47:03:01:09, a claimant’s 

involvement in a vocational rehabilitation program designed to address the 

claimant’s employability, within the physical limitations of her work-related injury, 

easily falls within the meaning of “activity”. Blue v. Malone & Hyde, 575 So. 2d 

292, 293 (Fla. Dist. Ct. App. 1991) (concluding that the meaning of the term 

“activity” within a similar workers’ compensation administrative rule “contemplates 

record and nonrecord activity[.]”). The participation in a vocational rehabilitation 

program may impact the value of the claim for workers’ compensation benefits for 

settlement purposes or for hearing before the Department.7

[¶23.] LaPlante was engaged in a vocational rehabilitation program less than 

five months before the motion to dismiss was filed and she provided verification of 

this activity to the Department in response to the motion. LaPlante explained in 

her affidavit to the Department that her “goals for working through this program 

 

7. LaPlante’s ability to return to work was significant in determining the 

compensability of her injury. LaPlante may have also been entitled to 

additional benefits while she was engaged in the vocational rehabilitation 

program. SDCL 62-4-5.1 provides that “once such an employee is engaged in 

a program of rehabilitation which is reasonably necessary to restore the 

employee to suitable, substantial and gainful employment, the employee shall 

receive compensation at the rate provided” by SDCL 62-4-3.
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were to obtain employment that would specifically follow my physical limitations 

and work restrictions and would allow me to have permanent employment.” 

Further, she stated in her affidavit that she engaged in settlement negotiations 

with Employer/Insurer before entering the program, and the program “allowed me 

to return to work and has positively impacted my need for disability benefits as a 

part of my claim for workers’ compensation benefits.” Employer/Insurer did not 

challenge these facts, nor do they challenge her claim that her participation in the 

vocational rehabilitation program directly impacted the value of her workers’ 

compensation claim for settlement or trial purposes before the Department.

[¶24.] The Department and the circuit court erroneously focused on the lack 

of communication by LaPlante with Employer/Insurer in determining whether any 

activity occurred within one year.8 Once LaPlante established she was engaged in a 

vocational rehabilitation program, her lack of communication was not relevant to 

the threshold question of whether she was engaged in “activity” within the meaning 

of ARSD 47:03:01:09. Employer/Insurer has not cited any authority supporting its 

claim that “activity” under ARSD 47:03:01:09 must involve actual proceedings in 

the case, or communication between the parties.

[¶25.] We conclude the Department abused its discretion in dismissing the 

appeal because its decision was based upon the erroneous conclusion that 

LaPlante’s participation in the vocational rehabilitation program was not “activity” 

 

8. LaPlante should have communicated this activity to Employer/Insurer. She 

may very well have avoided two years of litigation involving this motion to 

dismiss by simply responding to Employer/Insurer’s request for an update on 

her case.
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under ARSD 47:03:01:09. Due to our determination that LaPlante engaged in 

activity within a year before the motion to dismiss was filed, it is unnecessary to 

consider the question of good cause.

[¶26.] We reverse the dismissal and remand to the Department to reinstate 

LaPlante’s petition for workers’ compensation benefits.

[¶27.] GILBERTSON, Chief Justice, and KERN, DEVANEY, Justices, 

concur.

[¶28.] SALTER, Justice, deeming himself disqualified, did not participate.