Lupo v. McNeeley

Filed 4/11/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 104
Josann M. Lupo, Plaintiff and Appellant
v.
Brianna M. McNeeley,
a/k/a/ Brianna M. McNelly, Defendant and Appellee
and
Trumball Insurance Company,
a/k/a The Hartford Insurance Company,
John Does 1-10, Defendants
No. 20180381
Appeal from the District Court of Stark County, Southwest Judicial District,
the Honorable William A. Herauf, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Mark C. Sherer, Dickinson, ND, for plaintiff and appellant; submitted on brief.
Alyssa L. Lovas, Bismarck, ND, for defendant and appellee; submitted on
brief.
Lupo v. McNeeley
No. 20180381
McEvers, Justice.
[¶1] Josann M. Lupo appeals from a district court judgment dismissing her
complaint with prejudice. The district court granted the defendant’s motion for
summary judgment, dismissing Lupo’s complaint with prejudice holding the claims
were barred by the statute of limitations. We affirm the district court judgment
dismissing Lupo’s complaint with prejudice, concluding N.D.C.C. § 28-01-32 did not
toll the statute of limitations.
I
[¶2] A car accident involving Lupo and Brianna M. McNeeley occurred in
Dickinson, North Dakota on August 17, 2009. At that time McNeeley had a
Minnesota address. Lupo filed a complaint in the district court on August 14, 2015
along with a summons and a certificate of service, certifying that on August 14, 2015,
she sent the complaint and summons to a process server for service on McNeeley at
an address in Battle Lake, Minnesota. The record does not reflect that service of
process was effectuated through a process server. On August 15, 2016, the court filed
a notice of intent to dismiss, to which Lupo replied requesting the court allow the case
to remain pending on the grounds that “service of process upon the Defendant, by
publication, will be perfected on September 6, 2016, the date that the last publication
of the Summons is set to run in the Dickinson Press.” In October 2017, the court
again filed a notice of intent to dismiss to which Lupo again responded seeking the
court allow the case to remain pending. After a status conference in November 2017,
Lupo filed an affidavit of service by publication in January 2018, and an affidavit of
publication in February 2018.
[¶3] In April 2018, following a February 10, 2018 publication of the summons,
McNeeley answered, raising the statute of limitations as an affirmative defense and
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also asserting insufficiency of service of process. In April 2018, McNeeley moved
for summary judgment, arguing Lupo’s action was time-barred by the applicable six-
year statute of limitations. Lupo opposed the motion, arguing the action was not time-
barred because McNeeley was not a resident of North Dakota at the time of the
accident and therefore the limitations period was tolled under N.D.C.C. § 28-01-32.
Lupo submitted the police report from the accident as an exhibit which reflected that,
at the time of the accident, McNeeley had a Minnesota address. The district court
granted McNeeley’s motion, dismissing Lupo’s complaint with prejudice as a matter
of law. The court’s order relied on Atkinson v. McLaughlin, 462 F. Supp. 2d 1038 (D.
N.D. 2006) to support its conclusion that McNeeley was subject to the jurisdiction of
the North Dakota courts and therefore the statute of limitations was not tolled under
N.D.C.C. § 28-01-32.
II
[¶4] We review district court orders granting summary judgment as follows:
Summary judgment is a procedural device for the prompt
resolution of a controversy on the merits without a trial if there are no
disputed issues of material fact or inferences to be drawn from the
undisputed facts, or if resolving disputed facts would not alter the
results.
....
The party moving for summary judgment has the burden
of establishing that there are no genuine issues of
material fact and that the moving party is entitled to
judgment as a matter of law. In deciding whether the
district court appropriately granted summary judgment,
this Court views the evidence in the light most favorable
to the party opposing the motion, and the opposing party
will be given the benefit of all favorable inferences that
can reasonably be drawn from the record. On appeal, we
decide whether the information available to the district
court precluded the existence of a genuine issue of
material fact and entitled the moving party to judgment
as a matter of law.
Whether a district court properly granted summary judgment is
a question of law this Court reviews de novo on the entire record.
2
Palmer v. 999 Quebec, Inc., 2016 ND 17, ¶ 6, 874 N.W.2d 303 (internal citations and
quotations omitted).
III
[¶5] Under N.D.C.C. § 28-01-16(5), an action for personal injury must be
commenced within six years after the claim for relief accrues. Neither party disputes
the cause of action accrued at the time of the accident on August 17, 2009. In North
Dakota, a “civil action is commenced by the service of a summons.” N.D.R.Civ.P.
3. See also Langowski v. Altendorf, 2012 ND 34, ¶ 9, 812 N.W.2d 427 (stating a civil
action begins “when a plaintiff serves a summons upon a defendant”).
[¶6] Lupo argues the statute of limitations was tolled due to McNeeley’s out-of-
state residence at the time of and following the accident. She points to N.D.C.C. § 28-
01-32, which provides for tolling of the statute of limitations as follows:
If any person is out of this state at the time a claim for relief
accrues against that person, an action on such claim for relief may be
commenced in this state at any time within the term limited in this
chapter for the bringing of an action on such claim for relief after the
return of such person into this state. If any person departs from and
resides out of this state and remains continuously absent therefrom for
the space of one year or more after a claim for relief has accrued
against that person, the time of that person’s absence may not be taken
as any part of the time limited for the commencement of an action on
such claim for relief. The provisions of this section, however, do not
apply to the foreclosure of real estate mortgages by action or otherwise
and do not apply if this state’s courts have jurisdiction over a person
during the person’s absence.
(Emphasis added.) The district court considered this statute’s application and found
the limitations period was not tolled because McNeeley was subject to the jurisdiction
of North Dakota courts.
[¶7] The district court’s order acknowledged that this Court has not interpreted
N.D.C.C. § 28-01-32 since its most recent amendment in 1989, and based its
reasoning on federal case law from the federal district court in Atkinson, 462
F. Supp. 2d 1038. In Atkinson, the federal district court noted that this Court has
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expressly held “that Section 28-01-32, N.D.C.C., applies to both residents and
nonresidents.” Id. at 1048 (quoting Loken v. Magrum, 380 N.W.2d 336, 341 (N.D.
1986)). The federal district court held “[o]n its face, and in the absence of any
direction from the North Dakota Supreme Court, Section 28-01-32 clearly provides
that a statute of limitations is not tolled with the absence of a party from the state if
the state courts have jurisdiction over the absent party.” Id. at 1048. The court in
Atkinson held that defendants not present in North Dakota were still subject to North
Dakota courts’ jurisdiction because the plaintiff could have completed service via
publication:
It should be noted that the position asserted by Atkinson
overlooks his ability to obtain service of process by publication if
personal service could not have been made after a diligent attempt was
undertaken to locate the McLaughlins. See N.D.R.Civ.P. 4(e). The
ability to serve process by publication eliminates the need to locate a
nonresident who may be difficult or impossible to find. Section 28-01-
32 clearly provides that the statute of limitations is not tolled when the
North Dakota “courts have jurisdiction over a person during the
person’s absence.” Service in this case could have been easily achieved
by publication.
Id. at 1049-50. In Atkinson, the out-of-state defendants were not only out of North
Dakota, but were in fact out of the country, traveling in Cambodia following the
accrual of the claim. Although we are not bound by the reasoning in Atkinson, we
agree with it and adopt its analysis of N.D.C.C. § 28-01-32.
[¶8] While this Court has not before applied N.D.C.C. § 28-01-32, since its
amendment in 1989, we have recognized “[t]he amendment apparently refers to the
availability of ‘long-arm’ service of process under Rule 4, N.D.R.Civ.P.” Fuson v.
Schaible, 494 N.W.2d 593, n.10 (N.D. 1992). North Dakota’s long-arm provision is
located in N.D.R.Civ.P. 4(b)(2), which states, in pertinent part:
(2) Personal Jurisdiction Based on Contacts. A court of this state may
exercise personal jurisdiction over a person who acts directly or by an
agent as to any claim for relief arising from the person’s having such
contact with this state that the exercise of personal jurisdiction over the
person does not offend against traditional notions of justice or fair play
4
or the due process of law, under one or more of the following
circumstances:
....
(D) committing a tort within this state, causing injury to
another person or property within or outside this state.
See also Ensign v. Bank of Baker, 2004 ND 56, ¶ 10, 676 N.W.2d 786. “Rule 4(b)(2)
is designed to permit state courts to exercise personal jurisdiction to the fullest extent
permitted by due process.” Ensign, at ¶ 10. Under N.D.R.Civ.P. 4(e)(1)(A), service
by publication is permitted if “the claim for relief is based on one or more grounds for
the exercise of personal jurisdiction under paragraph (2) of subdivision (b) of this rule
[N.D.R.Civ.P. 4(b)(2)].” Because Lupo’s claim against McNeeley arose as a tort
under N.D.R.Civ.P. 4(b)(2), service by publication was a permissible means to
effectuate service of process and therefore the courts of North Dakota had jurisdiction
over McNeeley even in her absence from the state. Other permissible means to
effectuate service on out-of-state defendants also exist under N.D.R.Civ.P. 4(d)(3)
which provides:
(3) How Service of Process Is Made Outside the State. Service
on any person subject to the personal jurisdiction of the courts of this
state may be made outside the state:
(A) in the manner as service within this state, with the
force and effect as though service had been made within this
state;
(B) under the law of the place where service is made for
service in that place in an action in any of its courts of general
jurisdiction; or
(C) as directed by court order.
Therefore, N.D.C.C. § 28-01-32 did not toll the six-year statute of limitations and
Lupo’s action was properly dismissed by the district court.
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IV
[¶9] We affirm the district court judgment.
[¶10] Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Jon J. Jensen
Gerald W. VandeWalle, C.J.
6