Minnesota Litigator is DELIGHTED to introduce Minnesota civil litigator, Kelly Pierce, as Minnesota Litigator’s latest Guest Poster! (It has been a while since we’ve introduced a new Guest Poster.) If you don’t have the good fortune of knowing Ms. Pierce already, meet Kelly here.
(Ed. Note: And we also give a hat-tip to long-time reader KH for highlighting the recent Eighth Circuit decision to us that we discuss here. As we’ve said before, Minnesota Litigator desperately needs and depends on active and engaged readers. Keep up the good work!)
Happy Monday, procedure wonks! We’ve got a case for you that could be at home in any civil procedure casebook. (The very short of it: watch out for neighbors bearing legal papers.)
In Michaud v. Davidson, the U.S. Court of Appeals for the Eighth Circuit weighed in last week on an issue of Minnesota law that has yet to be addressed by Minnesota courts : can a defendant be personally served by a third party who received court papers from the original process server? In a decision authored by U.S. Court of Appeals Judge David R. Stras, the Eighth Circuit answered “yes,” predicting that the Minnesota Supreme Court would recognize such “secondhand service” as adequate personal service under Minn. R. Civ. P. 4.03(a) if it were confronted with the question.
In 2010, Plaintiff Michaud and Defendant Davidson were involved in a car accident in Duluth. Just days before the six-year statute of limitations would have expired, Michaud sued Davidson in Minnesota state court. Defendant Davidson was a former U of M-Duluth student who, by the time of the lawsuit, had moved back to her hometown in Illinois. Since publicly available information showed that Davidson lived with her parents in Illinois, plaintiff’s counsel asked the sheriff’s office to serve Davidson at her parents’ house.
Davidson’s father was at home when a deputy sheriff arrived at his door. The deputy asked whether the Davidson “lived” there, and her father responded that she would “be here tonight.” Believing that this meant that the Davidson lived with her parents (spoiler alert: she didn’t), the deputy told the father that he had a summons and complaint for her. The deputy handed the documents to the father and asked him to give them to Davidson. When Davidson arrived at her parents’ house that night, her father gave her the papers.
Neither the plaintiff nor the deputy knew that Davidson no longer lived with her parents. Five months before the lawsuit was filed, she had moved into a rented room to be closer to work.
After removing the case to federal court, Davidson moved to dismiss, arguing that she had not been properly served with the summons and complaint before the statute of limitation expired. U.S. Magistrate Judge Leo Brisbois (D. Minn.) agreed, finding that Minnesota does not recognize secondhand service—personal delivery by a third party who received the papers from the original process server—to be adequate “personal service.” Judge Brisbois also concluded that the Davidson’s “usual place of abode” was not her parents’ house at the time of the attempted service, and so the deputy’s decision to leave a copy of the papers with her father was insufficient “substitute service.”
A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit, with one judge dissenting, reversed the district court’s decision dismissing the lawsuit as barred by the statute of limitation for failure to serve the defendant on time. Writing for the majority, Judge Stras reasoned that the defendant’s father admitted that the deputy had told him what the papers were before giving them to him, and so the father knew he was delivering a summons and complaint to his daughter. This met Rule 4.03(a)’s requirement that a process server know that a summons and complaint are being served and he intend to serve them. The majority came to this conclusion despite the fact the Minnesota Supreme Court had expressly rejected secondhand service for substitute service (even though it had not addressed this question in the context of personal service).
This case has obvious practical implications for Minnesota process servers and Minnesota trial lawyers. Under this reading of the service rules, a process server can hand a summons and complaint to a party’s neighbor or friend, and those third parties can be transformed, almost magically, into process servers themselves (as long as they are aware that they have a summons and complaint and deliver it to the right party). In such a case, their delivery of papers to a defendant would be deemed sufficient personal service under the rule adopted in Michaud. Dissenting, Judge Bobby Shepherd noted that this “deputizing” effect stood in contrast to Minnesota’s long policy of requiring strict compliance with service rules, citing to a Minnesota case (Jaeger) demanding strict construction (that happens to have been written by then-Minnesota Supreme Court Justice David Stras, the author of the majority opinion). Judge Shepherd concluded that the Minnesota Supreme Court would not allow for secondhand personal service.
Michaud piqued our interest not only for practical reasons, but because it was authored by Judge Stras, who until January of 2018 sat on the Minnesota Supreme Court. Was Judge Stras more comfortable weighing in on what a Minnesota court would do because he authored the Minnesota Supreme Court’s Jaeger decision and was also on the court for the Melillo decision, which also dealt with service of process issues? Are federal judges who were formerly state court appellate judges more willing to predict what the state court would do on state law questions? Our instincts say yes. If there are readers out there with experience with this question (or a citation to an on-point journal article), please let us know.
It remains to be seen how Minnesota courts will actually look at this question. Will they follow the lead of their former Minnesota Supreme Court justice? Until then, practitioners: beware of (or make use of) your neighbors.
Kelly Pierce is a Minneapolis-based lawyer with 15 years of experience representing businesses in commercial disputes and advising on business and employment law issues. Learn more about Kelly at https://piercelawmn.com.