Noel J. Michaud, formerly known as Noel J. Ketola Plaintiff- Appellant
Sarah E. Davidson Defendant-Appellee
Submitted: October 18, 2018
from United States District Court for the District of
Minnesota - Minneapolis
SHEPHERD, KELLY, and STRAS, Circuit Judges.
suing Sarah Davidson for injuries arising out of a car
accident, Noel Michaud attempted to serve Davidson by having
a local sheriff's deputy leave a copy of the summons and
complaint with Davidson's father, who then handed them to
Davidson just hours later. The magistrate judge, acting by
consent of the parties, dismissed Michaud's lawsuit on
the theory that Minnesota does not recognize "secondhand
service." See Minn. R. Civ. P. 4.03(a). We
lawsuit arose out of an injury she suffered in a 2010 car
accident with Davidson. At the time, Davidson was a student
at the University of Minnesota-Duluth, but she has since
graduated and returned to Illinois, where her parents live.
days before the six-year statute of limitations was set to
expire, Michaud sued Davidson in Minnesota state court.
Michaud delivered the summons and complaint to the
sheriff's office in the county where Davidson's
parents lived and requested that it serve Davidson with the
father was at home when a deputy sheriff appeared at his
door. When the deputy inquired whether Davidson
"lived" there, her father responded that she would
"be here tonight." Taking this statement to mean
that Davidson lived with her parents, the deputy said that he
had a summons and complaint and asked him to give them to
her. Before leaving, the deputy handed the papers to
Davidson's father, who then gave them to his daughter a
short time later. What Michaud and the deputy did not know,
however, was that Davidson no longer lived at her
parents' house. Several months before Michaud filed her
lawsuit, Davidson moved into a rented room to be closer to
removed the case to federal court. See 28 U.S.C.
§§ 1332, 1441. After doing so, she argued that the
case had to be dismissed because she was never served under
Minnesota Rule of Civil Procedure 4.03(a).
court agreed. It first found that Davidson's "usual
place of abode" was not her parents' house, so the
deputy could not serve her by leaving a copy of the papers
there. Minn. R. Civ. P. 4.03(a) (stating that an individual
may be served "by leaving a copy at the individual's
usual place of abode with some person of suitable age and
discretion then residing therein"); see also Jaeger
v. Palladium Holdings, LLC, 884 N.W.2d 601, 604-05
(Minn. 2016) (describing substitute service). It also
concluded that Minnesota does not recognize "secondhand
service," which is personal delivery by someone who
received the papers from the original process server. Because
Michaud did not properly serve Davidson before the statute of
limitations had expired, the court dismissed the case with
prejudice. See Fed. R. Civ. P. 12(b)(5). We review
de novo the question presented by this case, which is whether
Michaud properly served Davidson under the Minnesota Rules of
Civil Procedure. See Barner v. Thompson/Ctr. Arms
Co., 796 F.3d 897, 900 (8th Cir. 2015).
attempt to serve Davidson occurred before the case was
removed to federal court, so Minnesota law determines whether
the service was effective. See id. As relevant here,
there are two ways to serve an individual like Davidson under
the Minnesota Rules of Civil Procedure: either "by
delivering a copy [of the summons] to [her] personally,"
which is called "personal service"; or "by
leaving a copy at [her] usual place of abode with some person
of suitable age and discretion then residing therein,"
which is called "substitute service." Minn. R. Civ.
P. 4.03(a); Jaeger, 884 N.W.2d at 604-05; see
also Minn. Stat. § 543.19, subdiv. 2 (extending
this rule to out-of-state defendants).
Melillo v. Heitland, 880 N.W.2d 862 (Minn. 2016),
the Minnesota Supreme Court elaborated on the requirements
for personal service. In addition to personally delivering
the summons, a would-be process server must "know that a
summons is being served and intend to serve it."
Id. at 864. Applying those requirements,
Melillo held that a mail carrier who handed the
defendant a summons had not personally served him because
"there [was] nothing in ...