Opinion
A23-0066
08-08-2023
Nancy Rausch, Appellant, v. Padilla Speer Beardsley Inc. d/b/a Padilla, Respondent.
Hennepin County District Court File No. 27-CV-22-8106
Considered and decided by Larkin, Presiding Judge; Connolly, Judge; and Wheelock, Judge.
ORDER OPINION
MICHELLE A. LARKIN JUDGE
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Appellant Nancy Rausch challenges the district court's dismissal of her lawsuit against her former employer, respondent Padilla Speer Beardsley Inc. The dismissal was based on Rausch's failure to file her action within one year of commencing it, as required under Minn. R. Civ. P. 5.04(a).
2. In 2020, Padilla's attorney informed Rausch's attorney, via email, that she was "authorized to accept service. You can serve via email. You don't need to serve [Padilla] personally." On August 19, 2020, Rausch's attorney emailed Padilla's attorney Rausch's first summons and complaint, as well as an acknowledgement-of-service form. Padilla's attorney did not execute and return the acknowledgement-of-service form. On May 20, 2021, Rausch, with a new attorney, served Padilla with a new summons, complaint, and offer of settlement, through the secretary of the state. On May 19, 2022, Rausch filed her summons and complaint with the district court. The district court dismissed Rausch's action with prejudice because she failed to file it with the court within one year of August 19, 2020, the date on which the district court found that Rausch served Padilla and commenced the action.
3. "Any action that is not filed with the court within one year of commencement against any party is deemed dismissed with prejudice against all parties unless the parties within that year sign a stipulation to extend the filing period." Minn. R. Civ. P. 5.04(a); see Glen Edin of Edinburgh Ass'n v. Hiscox Ins. Co., 992 N.W.2d 393, 398 (Minn. 2023) (holding that rule 5.04(a) requires summons and complaint to be filed within one year of commencement of action). . "[T]he defendant does not need to take any action for [r]ule 5.04(a) to operate and . . . a case is automatically deemed dismissed with prejudice upon failure to file, or obtain a stipulation, within the 1-year deadline in the rule." Gams v. Houghton, 884 N.W.2d 611, 617 (Minn. 2016) (quotation omitted).
4. In Minnesota, a civil action can be commenced in multiple ways, including "(a) when the summons is served upon that defendant; or (b) at the date of signing a waiver of service pursuant to [r]ule 4.05." Minn. R. Civ. P. 3.01. Also, precedent authorizes "[a]n agreement to forego formal service and be served in ways not provided for by rule." DeCook v. Olmsted Med. Ctr., Inc., 875 N.W.2d 263, 270 (Minn. 2016).
5. "Whether service of process was effective, and personal jurisdiction therefore exists, is a question of law that we review de novo." Shamrock Dev., Inc. v. Smith, 754 N.W.2d 377, 382 (Minn. 2008). "But in conducting this review, we must apply the facts as found by the district court unless those factual findings are clearly erroneous." Id.
6. Rausch's assignment of error is premised on her assertion that "the parties agreed to a waiver of service under Minn. R. Civ. P. 4.05." When a civil action is commenced by waiving service pursuant to rule 4.05, the action is commenced "at the date of signing a waiver of service." Minn. R. Civ. P. 3.01(b). Rausch contends that service was not perfected on August 19, 2020, because Padilla's attorney did not sign or return the acknowledgement-of-service form that Rausch's attorney emailed with the summons and complaint. Rausch argues that the failure to return the acknowledgement-of-service form rendered the waiver ineffectual and as a result, the action was not commenced until May 20, 2021, when Rauch served Padilla with a new summons, complaint, and offer of settlement, through the secretary of the state. Thus, Rausch contends that her action was timely filed under Minn. R. Civ. P. 5.04(a).
7. As support for her position, Rausch relies on a single statement in the district court's order, specifically, the court's statement that "the agreement between the parties was a waiver of formal service under Minn. R. Civ. P. 4.05." Rausch further relies on an advisory committee comment to that rule, which states that
[t]his rule does not authorize service by mere mailing - it is necessary for the defendant to waive formal service and return the waiver-of-service form. Service is accomplished and proven by the waiver, not the mailing. Additionally, the new procedure is not limited to delivery by mail or any other means expressly authorized by these rules - it allows valid service to be accomplished by any means that is agreed to [by] the defendant being served - mail, private courier, email, or even social media would all be acceptable if the defendant agreed to
waive service under this rule. The only requirement is that the defendant sign and return a waiver-of-service form.Minn. R. Civ. P. 4.05 2018 advisory comm. cmt. For the reasons that follow, we reject Rausch's assignment of error.
8. An order is ambiguous and may be clarified by the tribunal that issued the order if "it is of doubtful meaning or open to diverse constructions." Stieler v. Stieler, 70 N.W.2d 127, 131 (Minn. 1955). "[F]ull effect must be given to that which is necessarily implied in the judgment, as well as to that actually expressed therein." Id. at 131-32. Even though the district court's order is open to diverse constructions-as argued by the parties-the parties did not move the district court to clarify the meaning of its order. Given the parties' failure to do so and the parties' arguments regarding their conflicting interpretations of the order-which urge us to adopt an interpretation that is consistent with each party's position-we will resolve any ambiguity in the district court's order, instead of remanding for the district court to do so.
9. The district court's single statement that "the agreement between the parties was a waiver of formal service under Minn. R. Civ. P. 4.05" must be read in the context of the entire order. The next line of the order states: "The failure to return the acknowledgement of service is of no import as [Padilla's attorney] was not required to return the form because she was not waiving service, she was accepting service as an agent for Padilla." (Emphasis added.) Moreover, the district court's order notes that Rausch argued that her lawyer's "service on Padilla's attorney was a 'waiver of service' and because Padilla's attorney did not return an executed [a]cknowledgement of [s]ervice, the waiver of service never occurred, and the action did not commence on August 19, 2020." The district court expressly rejected that argument, explaining that "the [c]ourt disagrees because the agreement between the parties in August 2020 was not to waive service, but to accept informal service via email in lieu of personal service." (Emphasis added.) The district court's order later repeats that reasoning, stating that Padilla's attorney "was not required to return the form because she was not waiving service, she was accepting service as an agent for Padilla." (Emphasis added.) Moreover, the district court's order twice states that "[a]n agreement to forego formal service and be served in ways not provided for by rule is allowed in Minnesota." (Emphasis added.) The district court quoted DeCook, stating that "[e]very business day, on behalf of their clients, Minnesota lawyers enter into agreements consenting to receive service in ways not strictly provided for by rule." 875 N.W.2d at 270 (emphasis added).
10. Reading the district court's order as a whole, there is only one reasonable interpretation: the district court did not intend to treat the parties' agreement as a waiver of service under rule 4.05. Instead, the district court intended to treat the parties' agreement as one for an alternative method of service. The district court's reference to a waiver under rule 4.05 was an unfortunate mistake, which easily could have been corrected by moving the district court to clarify its order. See Stieler, 70 N.W.2d at 131 (stating that an order is ambiguous and may be clarified by the tribunal which issued it, if the order is "of doubtful meaning or open to diverse constructions").
11. Second, as to Rausch's reliance on the advisory committee comment to rule 4.05, "committee comments are included for convenience and are not binding on the court." Vandenheuvel v. Wagner, 690 N.W.2d 753, 756 (Minn. 2005). Moreover, we note that the committee comment states that the 2018 amendments to rule 4.05 "completely revamped" the rule "to replace the somewhat unreliable procedure relying on the '[a]cknowledgement of [s]ervice' form with a more straightforward procedure" that relies on a "Waiver of Service" form. And the forms appended to the Minnesota Rules of Civil Procedure do not include an acknowledgment-of-service form; instead, they include Form 22B, entitled, "Waiver of Service by Summons." Given these circumstances, Rausch's attempt to equate Padilla's failure to execute and return the "acknowledgement of service" form with a failure to execute and return a "waiver of service" form is not persuasive, because the former indicates that service occurred and the later indicates that service was waived.
12. As noted by the district court, "[a]n agreement to forego formal service and be served in ways not provided for by rule is allowed in Minnesota." DeCook, 875 N.W.2d at 270. "Every business day, on behalf of their clients, Minnesota lawyers enter into agreements consenting to receive service in ways not strictly provided for by rule." Id. In DeCook, the supreme court held that service had been effected where the plaintiffs "submitted evidence that the defendants had agreed to be served by email through the Medical Center's compliance officer" and that the "evidence of service was wholly unrebutted." Id. at 272. Although the compliance officer in DeCook executed an acknowledgement of service, that was only one of the four pieces of evidence on which the supreme court relied, and the court's opinion does not suggest that execution and return of the acknowledgement of service was necessary to perfect service. Id. at 271.
13. But the DeCook court did note that "[n]ot one defendant submitted an affidavit, correspondence with [the compliance officer], or any other piece of evidence indicating that any defendant did not authorize [the compliance officer] to agree to accept service"; "[t]ellingly, the defendants are silent." Id. (emphasis omitted). The same can be said here: Rausch does not dispute that the parties agreed that Padilla's attorney could accept service by email. Instead, Rausch argues that the agreement was actually for a waiver of service and that Padilla's attorney had to execute and return an acknowledgement of service to establish a waiver of service. That argument is illogical, and we reject it.
14. Because Padilla consented to service by email on its attorney, service was effected and the action commenced when the summons and complaint was delivered to Padilla's attorney by email on August 19, 2020. And because Rausch failed to file her action in district court within one year of that date, we affirm the district court's order dismissing the complaint under rule 5.04(a), without considering Padilla's alternative arguments in support of its position.
IT IS HEREBY ORDERED:
1. The district court's judgment dismissing Rausch's civil action is affirmed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.