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Bassford Remele is a full service litigation firm located in Minneapolis, Minnesota. Founded in 1882, the firm represents local, national and international clients in all areas of civil litigation and dispute resolution.
Case Law Update
During the week of August 24, 2007, the Minnesota appellate courts released an opinion on the following topic that may be of interest to our clients:
CIVIL PROCEDURE – SUFFICIENCY OF SERVICE OF PROCESS BY PUBLICATION; FAILURE TO INCLUDE ALTERNATIVE DISPUTE RESOLUTION INFORMATION ON SUMMONS
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Service of process by publication is sufficient where a party exercises due diligence in attempting to locate a defendant and submits an affidavit made in good faith and reciting the jurisdictional facts required under Minn. R. Civ. P. 4.04.
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Failure to include information about alternative dispute resolution on a summons is not fatal to jurisdiction.
Defendants partnership and its partners defaulted on two leases. The parties entered into a Stipulation for Entry of Judgment, which acknowledged the debt and stated the partners were individually and jointly and severally indebted to the plaintiff lessor. The defendants defaulted. Plaintiff filed the stipulation with the district court and it entered judgment against the debtors.
Before the applicable ten-year limitation expired, an assignee of the plaintiff attempted to locate the defendant partners to commence an action to renew the judgment. Plaintiff personally served one defendant at his out-of-state residence and served another by publication under Minn. R. Civ. P. 4.04(a)(1). The district court denied the defendants’ motion to dismiss the complaint for lack of jurisdiction, holding the summons was valid and service of process was sufficient.
The Court of Appeals affirmed, holding that service by publication confers jurisdiction “when the defendant is a resident individual domiciliary having departed from the state with intent to defraud creditors, or to avoid service or [the defendant] remains concealed therein with the like intent[.]” The district court did not clearly err when it held service by publication was sufficient because (1) plaintiff’s affidavit was made in good faith; (2) plaintiff’s affidavit expressly stated the jurisdictional facts required by Rule 4.04; and (3) plaintiff exercised due diligence in attempting to locate the defendant.
The Court also held that plaintiff’s summons was not defective for failing to provide information about alternative dispute resolution (ADR). Failing to include the ADR information did not constitute a jurisdictional defect requiring dismissal because the information was not essential for defendants to answer and defend plaintiff’s claim.
Shamrock Development, Inc. v. Smith, Minnesota Court of Appeals, A06-1647, August 21, 2007.
[Bassford Remele, A Professional Association, represented the prevailing plaintiff in this appeal.]
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