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Michaud v. Davidson

United States Court of Appeals, Eighth Circuit

April 16, 2019

Noel J. Michaud, formerly known as Noel J. Ketola Plaintiff- Appellant
v.
Sarah E. Davidson Defendant-Appellee

          Submitted: October 18, 2018

          Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before SHEPHERD, KELLY, and STRAS, Circuit Judges.

          STRAS, CIRCUIT JUDGE.

         After 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 reverse.

          I.

         Michaud's 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.

         Just 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 papers.

         Davidson's 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 work.

         Davidson 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).

         The 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).

         II.

         Michaud's 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).

         In 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 ...


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