Opinion
No. CX-99-455.
Filed July 13, 1999.
Appeal from the District Court, Hennepin County, File No. 985921.
Steven H. Silton, (for respondents)
John C. DeMoss, (for appellants)
Considered and decided by Shumaker, Presiding Judge, Short, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
In this pretrial appeal, Constantinos and Ekaterini Limas argue the trial court erred in denying their motion to dismiss for insufficient service of process and ordering their attorney to accept service. We reverse.
DECISION
The construction of a court rule and the determination of whether service is proper are questions of law, which we review de novo. See Stoebe v. Merastar Ins. Co., 554 N.W.2d 733, 735 (Minn. 1996) (examining rule of civil procedure de novo); Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984) (noting legal questions reviewed de novo); McBride v. Bitner, 310 N.W.2d 558, 561-63 (Minn. 1981) (applying de novo review to determine whether service was proper).
The Limases argue that, because they were not properly served, the trial court lacked jurisdiction to order their attorney to accept service on their behalf. We agree. Because service of process is a fundamental requirement for initiating a lawsuit, the trial court must dismiss an action without prejudice when service is insufficient. See Murphy Bros. v. Michetti Pipe Stringing, Inc., ___ U.S. ___, 119 S.Ct. 1322, 1327 (1999) (emphasizing bedrock principle that defendant not obligated to participate in litigation unless notified of action by sufficient service of process); Doerr v. Warner, 247 Minn. 98, 103, 76 N.W.2d 505, 511 (1956) (noting civil action commences and jurisdiction attaches when defendant personally served as prescribed by statute or rule); Lewis v. Contracting Northwest, Inc., 413 N.W.2d 154, 156 (Minn.App. 1987) (noting trial court must dismiss action when service is insufficient).
The record shows: (1) Bonnie Dickel Hoffman and Eugene Hoffman initially served the Limases in Florida on Veteran's Day 1997; (2) realizing this service took place on a holiday, the Hoffmans requested the Limases' attorney accept service on their behalf, but the Limases refused; (3) the Hoffmans re-served the Limases on September 3, 1998 by leaving the summons and complaint with Constantinos Limas's secretary at Onassis Hospital in Greece; and (4) the Limases objected to the trial court's jurisdiction by simultaneously filing an answer and a motion to dismiss that alleged insufficient service of process.
Given these facts, the Limases were not effectively served in Florida or Greece. See Minn. Stat. § 645.44, subd. 4 (1998) (including Veteran's Day as "holiday" and stating civil process never served on holiday); Minn.R.Civ.P. 4.03(a) (stating substitute service may be made by leaving copy at individual's usual place of abode with some person of suitable age and discretion then residing therein); see also Thiele v. Stich, 425 N.W.2d 580, 584 (Minn. 1988) (holding attempted service on office receptionist did not confer jurisdiction, despite defendant's actual knowledge of suit). Moreover, the Limases did not waive their objection to insufficient service. See State v. Tolberg, 273 Minn. 221, 223, 140 N.W.2d 845, 846 (1966) (concluding defendant may only retain right to challenge process during litigation if he/she moves to dismiss before proceeding to trial).
The Hoffmans argue that, despite their failure to effectively serve the Limases, the trial court retained jurisdiction to order service upon the Limases' attorney under Rule 4.04(c)(3). See Minn.R.Civ.P. 4.04(c)(3) (stating service upon an individual may be effected in place not within state by any means not prohibited by international agreement); see also Fed.R.Civ.P. 4(f)(3) (including same provision for foreign service). But extraordinary service must be reasonably calculated to give notice and be consistent with due process. Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657 (1950)); Fed.R.Civ.P. 4(f)(3) 1993 Advisory Comm. note.
The record shows: (1) the Hoffmans never argued before the trial court that acceptance of service by the Limases' attorney was permissible under Minn.R.Civ.P. 4.04(c)(3); (2) the trial court did not base its order compelling acceptance of service by the Limases' attorney on Minn.R.Civ.P. 4.04(c)(3); and (3) the trial court did not consider alternative methods of extraordinary service before issuing its order. Cf. Levin v. Ruby Trading Corp., 248 F. Supp. 537, 540-41 (S.D.N.Y. 1965) (permitting service by ordinary mail to defendant's attorney where attempts at service in foreign country by registered mail and personal service failed). Given these facts, we conclude the trial court's order unreasonably intruded upon the Limases' due process rights. See Smith v. Spitzenberger, 363 N.W.2d 470, 472 (Minn.App. 1985) (quoting Masterson v. Le Claire, 4 Minn. 163, 166-67, 4 Gil. 108, 111-12 (1860) and declaring it is generally no part of attorney's duty or power to admit service for client). Under these circumstances, Minn.R.Civ.P. 4.04(c)(3) did not confer jurisdiction to the trial court. Mullane, 339 U.S. at 314, 70 S.Ct. at 657. The trial court improperly denied the Limases' motion to dismiss.