“All service ranks the same with God.”
- Robert Browning, PIPPA Passes (1841)
Service of process is generally required to initiate civil litigation in Minnesota. It is usually done by hand-delivery of the summons and complaint personally to a defendant or some suitable person actually living at the person’s abode, or in rare cases, serving by publication.
In most instances, personal service is the norm. However, when it is not done in a normal way, service can raise dispositive issues in litigation.
A pair of recent rulings of the Minnesota Supreme Court and the Court of Appeals addressed the sufficiency of personal service of process in unusual circumstances. The cases shared some similarities and had some differences.
In both cases, the rulings of the trial judges were affirmed. One regarded service as effective, allowing the case to proceed, while in the other, service was deemed defective and the case was dismissed.
Sufficiency of process when the summons and complaint were signed by an attorney who was not licensed in Minnesota and whether a motion to dismiss the lawsuit against multiple defendants were addressed by the Minnesota Supreme Court in a medical malpractice suit in DeCook v. Olmsted Medical Center, Inc.,875 N.W.2d 263 (Minn. Feb. 17, 2016).
The compliance officer at a medical facility in Rochester told the attorneys for the complaining parents of a child born in the hospital that she was authorized to accept service by mail for three specific physicians and nurses at the facility. The counsel served the facility and the individual defendants by mailing a copy of the summons and complaint to the compliance officer. Although the signature block in the pleadings bore the printed names of both of the attorneys licensed to practice in Minnesota and one in Maryland, it was signed only by the out-of-state attorney. The compliance officer accepted the pleadings and signed and returned a service form acknowledging receipt of service on each of the individual defendants.
All of the defendants then filed a motion to dismiss under Rule 12.02(b) on grounds of insufficient service of process, which prompted the attorney for the claimants to have the sheriff personally serve two of the nurses and left a copy of process at the medical center in an attempt to serve the other defendants, although the pleadings still were only signed by the Maryland attorney and not by one licensed to practice in Minnesota. Counsel for plaintiffs then tried again, with the Minnesota attorney appending his signature to a copy of the pleadings, an amended summons and complaint were mailed to the sheriff for service, and two of the defendants were personally served while process for the other defendants was delivered to an employee of the medical facility.
The Olmsted County District Court denied a motion to dismiss for insufficient process, reasoning that although the initiating pleadings were defective due to lack of a signature by a Minnesota attorney, the court had discretion to allow the defect to be cured by amendment, which the court allowed. A motion to dismiss the medical facility and two individual defendants who were personally served was rejected, but the court dismissed the other defendants who were not served personally.
The medical center and the two defendants who were personally served appealed, while the plaintiffs cross-appealed, seeking to reinstate the claim against the other dismissed defendants. The court of appeals affirmed, allowing the action to proceed as to the medical center and the two defendants who were personally served, but not as to the other defendants.
These convoluted circumstances resulted in a narrow 4-3 decision by the Supreme Court that service was proper and the action could proceed against all of the defendants. Although the summons and complaint were defective, the Rules of Civil Procedure grant the trial court authority to allow amendments of process under Rule 4.07, which was properly exercised in this case. Because there was “no prejudice,” the trial court properly allowed the defective pleadings to be amended in order to achieve the goal of resolving the controversy responding on the merits rather than dismissal on technical grounds.
Although out-of-state attorneys are permitted to practice law in Minnesota, there should be “liberal relief” when an innocent party would otherwise be prejudiced by his attorney’s neglect. There are other “deterrents for the unauthorized practice of law,” rather than dismissing the pleadings in this case.
Not only could the service defect be “cured,” but the service on the other defendants was proper based upon the agreement by the compliance officer to accept the pleadings on their behalf by mail. There was no evidence submitted that the compliance officer lacked “actual authority” to accept service for these defendants.
Three partially dissenting judges agreed with the allowance of the curative amendment of the pleadings to allow the case to proceed against some of the defendants, but would have affirmed dismissal of the defendants who were served by mail through the compliance officer. They felt that the compliance officer’s “apparent authority [is] … insufficient to establish effective service of process” and that the majority engaged in an “unwarranted upheaval of settled agency law” by allowing the action to continue against those defendants who were served by mail.
A lawsuit over an automobile accident on the Iron Range resulted in a lack of liability on two grounds: ineffective service against one defendant and no vicarious liability for the other, the co-owner of the vehicle, in Klingbiel v. Ramfjord, 2016 Minn. App. LEXIS 246 (Minn. Ct. App. March 14, 2016)(unpublished). The accident was caused by one of two co-owners of a car, brother and sister. The brother was personally served at his home, when the process server gave him a copy of the pleadings on behalf of his sister, although she did not live there, which he told the process server.
The St. Louis County District Court dismissed the case on grounds of defective service of process as to the sister, and also threw out the claim against the brother on grounds that he was not vicariously liable under the Minnesota Safety Responsibility Act, which only imposes vicarious liability upon a person “other than the owner,” pursuant to Minn. Stat. § 169.09, subd. 5(a). The trial court also threw out the claim against the brother because the Minnesota Safety Responsibility Act only imposes vicarious liability upon the owner of a vehicle when the improper driving was done by “any person other than the owner,” pursuant to Minn. Stat. § 169.09, subd. 5(a).
The Court of Appeals agreed on both points and dismissed the lawsuit. Service of process was defective because the sister “did not live” at the brother’s home where he was served. Therefore, substitute service under Rule 4.03(a) was impermissible. Further, the undisputed evidence showed that the brother’s home “was not [the] usual place of abode of the sister,” which rendered service ineffective.
The brother also could not be sued because the act only imposes vicarious liability when a vehicle is driven by “any person other than the owner,” with the owner’s consent. Since the sister was a co-owner of the vehicle, the statute did not apply and the brother was not liable for her faulty driving.
These cases underscore the problems that can arise when the means of commencing a civil lawsuit is challenged and the ways the court looks at the process of serving process.
Some ways of service of process in Minnesota
- Personal service upon an individual.
- Substitute service upon appropriate person at defendant’s home.
- Service by mail, if acknowledged.
- Published notice for three weeks.
Originally Published by Minnesota Lawyer