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SERVICE OF PROCESS

The following is an article written for publication in the Winter 2004 Minnesota Trial Lawyers Association (MTLA) quarterly magazine. This article is aimed at providing personal injury legal practitioners with an overview of proper methods in Minnesota for serving a complaint to commence a lawsuit against the negligent party or other personal injury defendant.

Effectuating Service of Process in Personal Injury Cases
By Denise S.S. Fullerton

In the practice of personal injury law, service of process is easy. Or is it? When I first started practicing law, I assumed it was simple. Find the defendant and serve him or her with a Summons, and that’s it. But then I quickly ran into situations where the defendant was not a resident individual, and I began to see the light. This service of process thing might not be so simple after all. References as to who may be served, and how, are littered throughout Minnesota statutes and rules. A search may yield no quick end. However, once I understood some basic principals, I realized that service of process can be relatively easily organized. Although by no means is this article exhaustive as to service of process, nor as to the statutes or rules on the matter, I will discuss the more generally used means of service in the practice of personal injury law.

First, it is important to know that an action is commenced with the service of a summons upon a defendant. However, that time may be shorter or longer depending on the method of service utilized. An action is commenced at the time personal service is made upon the defendant.¹ When service is made by mail, the action is not commenced until the date of acknowledgment of service.² Alternatively, if you are running up against the statute of limitations and are having difficulty effectuating personal service in time, you can buy yourself up to 60 additional days by delivering the summons to the sheriff. An action is commenced when the summons is delivered to the sheriff in the county where the defendant resides for service.³ However, be aware that service is insufficient if the summons is not actually served on that defendant within 60 days following delivery.⁴ In all cases⁵, a copy of the complaint is require to be served with the summons.⁶ Service of process may not be made on a legal holiday, which applies to both personal and substituted process.⁷

Personal Service tends to be the most common form of service on an individual defendant, although personal service may be made on essentially any type of defendant, so long as it is made upon the proper representative of that defendant. Service may not be made by a party to the action.⁸ Within the State of Minnesota, in addition to personally delivering the summons to an individual, personal service may be made on an individual by leaving it at the individual’s usual place of abode with a resident of suitable age and discretion.⁹ If the individual is institutionalized, the summons must also be served upon the CEO of the institution.¹⁰ If the individual is under 14 years old (although good practice for all minors), the summons must also be served on the mother or father or other appropriate guardian.¹¹ To serve businesses, look to the rule for who is defined as the proper agent for service.¹² To serve the State, deliver the summons to the attorney general, deputy attorney general, or assistant attorney general. ¹³ Personal service upon public corporations is made to certain members or clerks of the various entities.¹⁴ For businesses, the agent upon whom lawful service can be made is typically on file with the Secretary of State or the Commissioner or Commerce. Personal service outside the state has the same effect as published notice.¹⁵

All other forms of service discussed here are various forms of substituted service. Each has specific statutory and regulatory requirements. "Statutes controlling substituted service are to be literally construed and plaintiffs must strictly comply with them."¹⁶

Service by mail is a less expensive and less confrontational form of service, but has the disadvantage of time delay and requiring the cooperation of a defendant. If you’re tight on the statute of limitations, go for personal service. But if you have the luxury of time, service by mail can be especially effective if done shortly after a "sorry I have to sue you, but your insurance carrier is not being reasonable" letter. The rules on effective service by mail are explicit: mail a copy of the summons and complaint to the defendant, together with two copies of a "notice and acknowledgment," and a prepaid self-addressed return envelope.¹⁷ The defendant must then sign and return the acknowledgment, else face court order to pay the costs of personal service. Certified mail alone is not sufficient. If the sender of the notice does not receive the signed acknowledgment back within the time defendant is required by the rules to serve an answer, service is insufficient.¹⁸

Service on a Deceased Defendant is made by serving the personal representative of the estate.¹⁹

Service of process on a foreign personal representative and a nonresident personal representative is made by mailing the summons by registered or certified mail, addressed to the last reasonably ascertainable address of the personal representative, and requesting a return receipt signed by the addressee only.²⁰ Be wary of a possible impact on the statute of limitations with a deceased defendant, as statute limits the time within which to start an action against an estate.²¹ If a personal representative does not exist, a Special Administrator may be appointed, in the county where the deceased defendant died, with the limited power to accept service of process.²² Typically, you can simply have a secretary or another attorney appointed to accept service and turn the papers over to the decedent’s insurer.

Service by Publication can be used when a resident individual is absent from the state with an intend to defraud creditors or avoid service, or remains concealed within the state with similar intent; or when the plaintiff has a lien on property or credits within the state by attachment or garnishment and the defendant is absent, missing, a nonresident individual, or a foreign business.²³ To accomplish service by publication, application to the court must first be made. Along with filing of the complaint, you must file an affidavit setting forth the basis for publication, and whether a summons has been mailed to defendant, or whether defendant’s residence is unknown. Then notice must be published in an appropriate and acceptable newspaper, for three weeks. Service is considered completed 21 days after the first publication.

Service on the Secretary of State applies to many types of businesses.²⁴ Although service can be made personally on the registered agent, officer, manager or partner of the business, there are many occasions when service can instead be made on the Secretary of State. Statutorily, the Secretary of State can be appointed the legal agent for service through the acts of the business: a motor carrier using the highways to transport persons or property;²⁵ or a foreign corporation which withdraws from the state or whose certificate of authority to do business in Minnesota has been revoked or canceled.²⁶ To effectuate service on the Secretary of State, you must determine the type of business you are attempting to serve. If a motor carrier, union, group, or association, the summons must be filed with the Secretary of State along with a $35 fee.²⁷ Additionally, you must send a copy of the summons to the defendant at the last known address within 10 days of filing with the secretary of state.²⁸ If a business corporation or certain other type of business, including dissolved, withdrawn, or revoked business entities, the summons must be filed with the Secretary of State along with a $35 fee.²⁹ If a foreign corporation, including dissolved, withdrawn, or revoked business entities, one copy of the summons must be served on the secretary of state, along with the address to which service is to be sent to the corporation, and a $50 fee.³⁰

Service on the Commissioner of Commerce is most commonly used for service on insurance companies. All insurers must file a consent to service of process with the Commissioner of Commerce when applying for a license to do business in Minnesota, whether domestic or foreign.³¹ Even if the insurer has failed to appoint the Commissioner in a consent, it may do so by action or operation of statute. For example, the Commissioner is appointed the agent for service by any unauthorized foreign or alien insurers doing business in Minnesota.³² Also, the Commissioner is appointed the agent for service by any unauthorized company who engages in any act of entering into a contract of insurance or annuity as an insurer or transacting insurance business in Minnesota.³³ And the Commissioner is appointed as the agent for service for any insurer that engages in conduct which is prohibited or made actionable.³⁴ Proper service upon the Commissioner of Commerce is made by leaving the summons in the office of the commissioner, or by sending a copy of the summons to the commissioner by certified mail.³⁵ This service will not be effective unless you also send notice of the service and a copy of the summons, by certified mail, to the defendant at the last known address, and you file an affidavit of compliance with the court.³⁶

Service on the Commissioner of Public Safety may be made for any automobile accident defendant who is a nonresident of this state or who is a resident absent from the state continuously for six months or more following an accident.³⁷ Service is made by serving the Commissioner or filing a copy of the summons in the Commissioner’s office, along with a $2 fee. However, service is not sufficient unless notice of the service and a copy of the summons are also sent by mail to the defendant's last known address within 10 days, and an affidavit of compliance is attached to the summons.³⁸ Be aware that when service is made in this fashion, the court may order a continuance, not exceeding 90 days from the date of court filing, to allow the defendant a reasonable opportunity to defend the action.³⁹

Although these are not the only means of serving process upon a defendant, they would be the most commonly used methods in a personal injury practice. To ensure you are following all of the requirements, I strongly recommend referring to the rules or statutes when utilizing any of these procedures. Once organized, service of process is not so complicated after all!

¹ Minnesota Rules of Civil Procedure 3.01(a)
² MN RCivPr 3.01(b)
³ MN RCivPr 3.01(c)
⁴ Id.
⁵ Except service by publication
⁶ MN RCivPr 3.02
⁷ Minnesota Statute §645.44, Subd. 5
⁸ MN RCivPr 4.02
⁹ MN RCivPr 4.03(a)
¹⁰ Id.
¹¹ Id.
¹² MN RCivPr 4.03(b) and (c).
¹³ MN RCivPr 4.03(d)
¹⁴ MN RCivPr 4.03(e)
¹⁵ MN RCivPr 4.04(b); Minn. Stat. §543.19; Minn Stat. 303.13, Subd. 1
¹⁶ Wood v. Martin, 328 N.W.2d 723, 726 (Minn.1983).
¹⁷ MN RCivPr 4.05
¹⁸ Id.
¹⁹ MN RCivPr 25.01; Minn Stat. §573.01; Minn. Stat. §524.3-104; Minn. Stat. §524.3-602
²⁰ Minn. Stat. §524.4-303
²¹ Minn. Stat. §524.4-108
²² Minn. Stat. §524.3-108; Minn. Stat. §524.1-201(36)
²³ MN RCivPr 4.04(a). Other conditions for publication exist within this rule, but are not typically applicable in personal injury matters.
²⁴ Minn. Stat. §5.25, Subd. 1: Entities governed by chapter 221(motor carriers), 302A(business corporations), 303(foreign corporations), 317A(nonprofit corporations), 322A(Limited partnerships), 322B(Limited liability companies), 323(partnerships), 330(auctioneers), 540(unions, groups, or associations), or 543(private domestic corporation)
²⁵ Minn. Stat. §5.25, Subd. 2; Minn. Stat. §221.67. Similar provisions apply to unions, groups, or associations transacting any acts, business, or activities within the state of Minnesota. Minn. Stat. §540.152.
²⁶ Minn. Stat. §5.25, Subd. 4. Once a foreign corporation withdraws from the state, service on the Secretary of State may only be based upon a liability or obligation incurred within this state or arising out of any business done in this state by the corporation before the issuance of a certificate of withdrawal. Minn. Stat. §303.16.
²⁷ Minn. Stat. §5.25, Subd. 2.
²⁸ Id.
²⁹ Minn. Stat. §5.25, Subd. 3 and 5.
³⁰ Minn. Stat. §5.25, Subd. 4 and 5.
³¹ Minn. Stat. §60A.19 Subd.1(3) & Subd. 3:
³² Minn. Stat. §72A.37 Subd.1.
³³ Minn. Stat. §72A.43 Subd. 1
³⁴ Minn. Stat. §45.028, subd. 1
³⁵ Minn. Stat. §45.028.
³⁶ Id.
³⁷ Minn. Stat. §170.55, Subd. 1
³⁸ Id.
³⁹ Minn. Stat. §170.55, Subd. 2.