Griffin v. Snow Christensen and Martineau

2023 UT App 88THE UTAH COURT OF APPEALS
RON GRIFFIN,
Appellant and Cross-appellee,
v.
SNOW CHRISTENSEN & MARTINEAU,
Appellee and Cross-appellant.
Opinion
No. 20210494-CA
Filed August 17, 2023
Third District Court, Salt Lake Department
The Honorable Kent R. Holmberg
No. 170900275
Ron Griffin, Appellant and Cross-appellee Pro Se
Rodney R. Parker and Adam M. Pace, Attorneys for
Appellee and Cross-appellant
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGE RYAN M. HARRIS concurred. JUDGE AMY J. OLIVER
dissented, with opinion.
TENNEY, Judge:
¶1 Ron Griffin filed a legal malpractice suit against his former
attorneys at Snow Christensen & Martineau (Snow Christensen).
Under rule 4(d)(1)(E) of the Utah Rules of Civil Procedure, Griffin
was required to serve Snow Christensen by delivering a copy of
his complaint to “an officer, a managing or general agent, or other
agent authorized by appointment or law to receive process.” To
comply with this rule, Griffin’s process server (Process Server)
went to Snow Christensen’s offices and gave a copy of the
complaint to the firm’s “office administrator.”
¶2 Snow Christensen later argued that its administrator didn’t
qualify under any of the three categories set forth in rule
Griffin v. Snow Christensen
4(d)(1)(E). The district court agreed, so it dismissed the case for
insufficiency of service of process. Griffin now appeals, arguing
that the administrator qualified as a “managing or general agent.”
For the reasons set forth below, we agree with Griffin and
therefore reverse the district court’s dismissal order.
BACKGROUND
Griffin’s Suit and Initial Litigation over Service of Process
¶3 From 1997 through 2001 or 2002, Griffin (a former Utah
attorney) represented Richard and Sandra Cutler in a property
dispute. That case was resolved through a settlement in February
of 2001. Griffin subsequently sued the Cutlers for nonpayment of
legal fees, requesting more than $300,000, plus attorney fees and
costs accrued in connection with the case. Griffin represented
himself through much of the pretrial litigation, but as the case
progressed toward trial, he retained attorneys from Snow
Christensen to represent him. After a two-day bench trial, the
district court denied all requested relief. Representing himself
once again, Griffin appealed that decision. In October 2014, this
court affirmed. See generally Griffin v. Cutler, 2014 UT App 251, 339
P.3d 100.
¶4 In June 2015, Griffin filed a complaint against Snow
Christensen, alleging legal malpractice. After Griffin failed to
serve Snow Christensen within the 120-day period required by
rule 4(b) of the Utah Rules of Civil Procedure, Griffin filed a
motion for additional time, citing health issues as the reason. The
court granted that request. After this period of time expired,
Griffin requested another extension, again citing his poor health.
The court granted this request too. When that period expired,
Griffin filed a third request, seeking yet more time in which to
serve Snow Christensen. This time, the court denied the request
and dismissed the case without prejudice due to Griffin’s failure
to timely serve the firm.
20210494-CA 2 2023 UT App 88Griffin v. Snow Christensen
¶5 Griffin refiled his complaint against Snow Christensen
nearly a year later. As in the initial suit, Griffin failed to serve
Snow Christensen within 120 days. On Griffin’s request, however,
the district court granted him an additional 60 days. When that
period expired, the court granted his request for another 45 days
in which to serve Snow Christensen.
¶6 On August 28, 2017—the final day allowed under Griffin’s
latest extension—Griffin filed an amended complaint. And as
explained in more detail below, Griffin’s Process Server also
attempted to serve Snow Christensen on that same day by giving
a copy of the amended complaint 1 to Dawn Chapman, who was
Snow Christensen’s “office administrator.”
¶7 In September 2017, Snow Christensen filed a motion to
quash service and dismiss the amended complaint. Snow
Christensen alleged that Griffin “did not properly serve process”
on it under rule 4(d)(1)(E), which states that a plaintiff may serve
a “corporation . . . , a limited liability company, a partnership, or
an unincorporated association . . . by delivering a copy of the
summons and complaint to (1) an officer, (2) a managing or
general agent, or (3) other agent authorized by appointment or
law to receive process.” Utah R. Civ. P. 4(d)(1)(E) (numbering
added). In Snow Christensen’s view, the service of process was
defective because Chapman did not qualify under any of the three
categories set forth in the rule. And because there had been no
effective service, Snow Christensen argued that the case must
now be dismissed.
¶8 Griffin opposed the motion, arguing, in part, that Process
Server had been told that Chapman was Snow Christensen’s
“managing agent.” The district court subsequently issued an
1. Rule 4(b) requires the plaintiff to properly serve the “summons
and complaint” on the defendant. Utah R. Civ. P. 4(b). There’s no
assertion in this case that Griffin served the summons without the
amended complaint (or vice versa). For simplicity, we’ll simply
refer to service of “the complaint” throughout the opinion.
20210494-CA 3 2023 UT App 88Griffin v. Snow Christensen
order of dismissal with prejudice, however, ruling that Chapman
“was not a general or managing agent and was not authorized to
receive service of process.”
¶9 Griffin then filed a post-judgment motion requesting
various forms of relief under rules 52(b), 59(a)(7), 59(e), and
60(b)(6) of the Utah Rules of Civil Procedure. In the part relevant
to this appeal, Griffin argued that the court’s conclusion that
Chapman did not qualify as a “managing or general agent” was
incorrect under Beard v. White, Green & Addison Associates, Inc., 336
P.2d 125 (Utah 1959). Griffin further argued that because Snow
Christensen’s motion to dismiss was filed under rule 12(b) of the
Utah Rules of Civil Procedure, Griffin should have survived the
motion because he had at least made a prima facie case that
service had been proper.
¶10 Snow Christensen opposed Griffin’s motion, arguing that
the motion was untimely and that Griffin’s arguments were
substantively incorrect. After oral arguments, the court issued a
ruling in which it first concluded that Griffin’s motion was timely
filed. From there, the court concluded that Griffin had made a
prima facie showing that Chapman was a managing agent under
the Beard formulation. Because of this, the court vacated its
dismissal and scheduled an “evidentiary hearing regarding
service of process and jurisdiction.”
¶11 Snow Christensen filed an interlocutory appeal from the
district court’s decision, challenging its conclusion that Griffin’s
post-judgment motion was timely filed. In June 2020, the Utah
Supreme Court affirmed that decision and remanded the case for
further proceedings. See generally Griffin v. Snow Christensen
& Martineau, 2020 UT 33, 467 P.3d 833.
Evidentiary Hearing
¶12 In May 2021, the district court held an evidentiary hearing
on the question of whether “Rule 4 service was sufficient as to”
Snow Christensen. At the outset of the hearing, the court and the
20210494-CA 4 2023 UT App 88Griffin v. Snow Christensen
parties agreed that this question turned on whether Chapman
was a managing or general agent of Snow Christensen within the
meaning of rule 4(d)(1)(E).
¶13 Appearing pro se, Griffin called himself as his first witness.
Griffin testified that on the day in question, he instructed Process
Server to try to serve the attorney who was listed as Snow
Christensen’s registered agent and that he told Process Server to
instead “serve the managing agent” “only if it was impossible to
serve” the registered agent. Griffin testified that he drove Process
Server to Snow Christensen’s Salt Lake City office, and that when
Process Server returned to Griffin’s car, he handed Griffin a
document with handwriting on the back that said “Dawn
Chapman—administrator” alongside a phone number. Later that
day, Griffin filed the return of service with the court.
¶14 Griffin called Process Server as his second witness. Process
Server agreed with Griffin’s recollection of the initial instructions,
and he then described with more particularity what had allegedly
occurred inside Snow Christensen’s office. According to Process
Server, he “went up to the receptionist and asked” if the registered
agent was in because he needed to serve him with papers. When
the receptionist let Process Server know that the registered agent
was in a meeting and couldn’t be disturbed, Process Server asked
if Snow Christensen had an “office manager” or “managing agent
in the firm that [he] could deliver the[] papers to.” Process Server
claimed that after the receptionist responded in the affirmative,
Chapman came to the front desk and told him that she was “the
office manager” and could “take the papers.” Process Server said
that after he gave her the complaint and then obtained her
signature, he returned to Griffin’s car.
¶15 After Process Server testified, Snow Christensen called
Chapman as its witness. Chapman testified that she had received
a call from the receptionist telling her that someone was
requesting the office manager. She said that when she arrived at
the front desk, Process Server was there and asked her if she “was
the office manager”; in response, she told him that she “was the
20210494-CA 5 2023 UT App 88Griffin v. Snow Christensen
office administrator.” From this point forward, Chapman’s
account differed from that given by Process Server. According to
Chapman, when Process Server asked her “to accept service of the
papers,” Chapman told him that she was “not authorized to sign
any papers and [she] was not authorized to accept any service on
behalf of the firm.” Chapman said that she “made it very clear” to
Process Server that she “was not signing anything” and “that [she]
was not authorized to accept any service on behalf of the firm.”
She said that on his insistence, she did write her name and title
down on the paper he gave her, but that she “made it clear” to
him that by writing her name down, she was not “signing
anything” or accepting service.
¶16 In addition to testifying about the events of that day,
Chapman also testified about the nature of her position and duties
at Snow Christensen. Chapman testified she had been working at
the firm for 38 years. She said that her first role had been as “the
supervisor of the copy center” and that she had become the “office
manager” after “about ten years.” She said that she kept the title
of “office manager” for another ten years, after which the firm
“changed [her] title to administrator,” even though her duties
remained the same.
¶17 Chapman noted that the only other “nonlawyer staff” who
were at her “same level in the firm” were the “controller and the
IT manager.” 2 Chapman said that she answered directly to the
firm’s president. Chapman also said that she had a weekly
meeting with the firm’s president and that “things come up all the
time” that would cause her to talk with him “on a daily basis or
even more.”
¶18 When asked to describe her job duties, Chapman explained
that Snow Christensen has “committees for the majority of . . . the
firm operations,” that she “work[ed] with committee members,
2. Due to an “(inaudible)” in the transcript, there’s a slight
ambiguity in the record of this exchange. Chapman may have also
suggested that an “HR” employee was at this level too.
20210494-CA 6 2023 UT App 88Griffin v. Snow Christensen
the president,” and the “board of directors,” and that she
performed “functions” for the “day-to-day operations” for the
firm. She explained that she didn’t have “sole[]” or “general
authority over the firm’s affairs,” but that she worked in
“collaboration with the committees and the instructions that
[she’s] given to implement.” In response to a question about
whether there were “certain things that [she was] authorized to
do on [her] own,” Chapman said that she had “authorization to
implement the decisions that have been made” “by either the
board or committee members.” In response to another question,
she acknowledged that on Snow Christensen’s website, she’s
listed as the firm’s “administrator” and is “identified as part of
[its] management.” But even so, she said that she was not “free to
control the property, operations, business activities, office, place
of business, or affairs of” the firm.
District Court’s Ruling
¶19 The district court made an oral ruling from the bench,
which it later memorialized in a written decision. In that written
decision, the court began by noting that service on a corporation
is governed by rule 4(d)(1)(E) and that under that rule, the
question before it was whether Chapman qualified as an “officer,
managing or general agent, or other agent authorized by
appointment or law to receive process” for Snow Christensen. The
court recognized that this presents a “very fact-specific
determination.”
¶20 With respect to the relevant facts here, the court first found
that Chapman’s testimony was “credible and true,” thereby
accepting Chapman’s account of the events at the front desk over
those given by Process Server. The court then made several
findings about the firm’s structure and Chapman’s role at the
firm. The court found that Snow Christensen’s management
structure at the time of Griffin’s attempted service “included a
president, vice president, executive committee, board of directors,
and individual committees assigned to work on specific tasks.”
The court found that Chapman’s title was “administrator,” a
20210494-CA 7 2023 UT App 88Griffin v. Snow Christensen
position that, like the controller and IT director, qualified as “non-
lawyer staff.” The court found that as the firm’s administrator,
Chapman attended Snow Christensen’s “committee meetings as
an ex-officio member,” but that she “did not have a vote in the
committees’ decisions.” The court found that Chapman was “not
free to control” the firm’s “property, operations, business
activities, office, or affairs on her own,” nor could she make
certain decisions “without express direction and approval from a
committee or the board of directors.”
¶21 Turning to the three categories set forth in rule 4(d)(1)(E),
the court concluded that Chapman was neither an “officer” nor
an “agent authorized by appointment or law to receive service of
process.” This left the question of whether Chapman qualified as
a “managing or general agent” for the firm. On this, the court
noted that a “managing agent” is defined by Black’s Law
Dictionary as a “person with general power involving the exercise
of judgment and discretion, as opposed to an ordinary agent who
acts under the direction and control of the principal.” (Quoting
Agent, Black’s Law Dictionary (11th ed. 2019).) Accepting that
definition, the court determined that Chapman might be
considered “an agent” of Snow Christensen because she was “an
employee with certain authority.” But even so, the court
concluded that Chapman did not qualify as “a managing or
general agent.” In making this determination, the court relied
heavily on the fact that Chapman “was required to act under the
direction and control” of the firm’s “president, executive
committee, board of directors, various committees, and others”
and that she also did not have either “general control over the
affairs” of the firm’s “business” or “the ability to make decisions
and to exercise judgment and discretion.”
¶22 Because of its conclusion that Chapman did not qualify
under any of the categories set forth in rule 4(d)(1)(E), the court
then ruled that Griffin’s “service of process on [her] on August 28,
2017[,] was not valid service.” The court accordingly granted the
firm’s motion to quash service and dismiss amended complaint,
thus dismissing Griffin’s claims without prejudice.
20210494-CA 8 2023 UT App 88Griffin v. Snow Christensen
¶23 Griffin timely appealed.
ISSUE AND STANDARD OF REVIEW
¶24 Griffin challenges the district court’s conclusion that
Chapman did not qualify as “a managing or general agent” for
purposes of rule 4(d)(1)(E). “Whether a person has been served
with process is a question of fact, but whether a person is properly
served is a question of law. Thus, while we review the district
court’s factual findings as to service for clear error, we review its
legal conclusions flowing therefrom for correctness.” Cooper v.
Dressel, 2016 UT App 246, ¶ 2, 391 P.3d 338 (emphasis in original,
quotation otherwise simplified).
ANALYSIS
¶25 Griffin raises several issues on appeal, but we need focus
on only one of them: whether Chapman qualified as a managing
or general agent for purposes of rule 4(d)(1)(E). Contrary to the
district court’s conclusion, we conclude that she did.
¶26 “[P]roper service is required to exercise jurisdiction over a
party,” Labor Comm’n v. Price, 2020 UT App 24, ¶ 15, 460 P.3d 137,
and a “district court lacks personal jurisdiction [over a party]
when there has not been effective service of process,” Jordan Credit
Union v. Sullivan, 2022 UT App 120, ¶ 12, 520 P.3d 929 (quotation
simplified). “One method of properly serving a party is by
personal service.” Cooper v. Dressel, 2016 UT App 246, ¶ 3, 391 P.3d
338. Rule 4(d)(1) of the Utah Rules of Civil Procedure governs
personal service generally, and subsection 4(d)(1)(E) governs
personal service “[u]pon a corporation” or other similar entities
more particularly. Under that rule, service upon a corporation can
be effectuated “by delivering a copy of the summons and
complaint to (1) an officer, (2) a managing or general agent, or
(3) other agent authorized by appointment or law to receive
process.” Utah R. Civ. P. 4(d)(1)(E) (numbering added).
20210494-CA 9 2023 UT App 88Griffin v. Snow Christensen
¶27 The district court ruled that Chapman did not qualify
under any of the rule’s three categories. On appeal, Griffin only
challenges the court’s conclusion that Chapman did not qualify as
a “managing or general agent.”
¶28 The phrase “managing or general agent” is not defined in
the rule. And a review of Utah caselaw reveals only two cases that
have really grappled with its meaning: (1) Beard v. White, Green
& Addison Associates, Inc., 336 P.2d 125 (Utah 1959), and (2) In re
Schwenke, 2004 UT 17, 89 P.3d 117. We address each in turn.
¶29 In Beard, our supreme court considered an appeal from a
“trial court’s refusal to quash the service of two separate
summonses” issued in conjunction with a mining dispute. 336
P.2d at 125. The appeal turned on whether the individual who had
been served qualified as a “managing or general agent” under the
predecessor to our current rule 4(d)(1)(E). Id. at 125–26 & n.1.
Considering that question, the supreme court opined that a
qualifying person “must be more than a mere employee.” Id. at
126. Instead, the person “must be in charge of some of its property,
operations, business activities, office, place of business or in some
manner be responsible for or have control over its affairs.” Id.
Considering the case before it, the supreme court concluded that
service had not been proper where the complaint had been
delivered to an individual who was not the foreman at the mining
camp in question but was instead something more akin to a “mere
employee.” Id.
¶30 The supreme court considered the meaning of this phrase
again in In re Schwenke. This was an attorney discipline case, and
the attorney who had been disciplined delivered a copy of a
petition for reinstatement to the state bar to a common-area
receptionist at the Law and Justice Center, where the state bar
maintained its offices. 2004 UT 17, ¶ 3. On appeal, the supreme
court considered whether this was proper service on the state bar
under rule 4(d)(1)(E). See id. ¶¶ 23–24. The supreme court
acknowledged that “cases from other jurisdictions, discussing
state and federal corollaries to the Utah rule, have reached
20210494-CA 10 2023 UT App 88Griffin v. Snow Christensen
varying conclusions concerning whether service on a receptionist
is effective for a corporation or unincorporated association,” and
it further acknowledged that “generally, proper service is not
effected by serving the corporation’s receptionist.” Id. ¶ 24
(quotation simplified).
¶31 But the supreme court went on to explain that “[t]here are
. . . exceptions to this general rule,” noting that courts “have often
found service to be effective” in three situations:
1. “where the employee who received service had a
significant amount of authority or apparent authority
within the organization”;
2. “where the employee played an integrated role within the
organization such that he or she would know what to do
with papers”; or
3. “where there were other assurances that the documents
would reach the intended recipient.”
Id. ¶ 25. The supreme court then favorably cited a Ninth Circuit
decision for the proposition that the service of process “rules are
to be applied in a manner that will best effectuate their purpose
of giving the defendant adequate notice,” id. (quoting Direct Mail
Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688
(9th Cir. 1988)), after which the supreme court suggested that
when considering whether a person qualified under this rule,
courts should “look at various factors to ensure that the service is
fair in light of all the surrounding circumstances,” id. After
considering “the circumstances of this case,” the court concluded
that the receptionist in question did not qualify. Id. ¶ 28. 3
3. The dissent reads In re Schwenke differently. In the dissent’s
view, the supreme court drew a distinction between a “general
rule that service of process must comply with the letter of rule
(continued…)
20210494-CA 11 2023 UT App 88Griffin v. Snow Christensen
¶32 This is the legal backdrop for our assessment of the
question before us in this appeal: whether Chapman qualified as
a managing or general agent of Snow Christensen under rule
4(d)(1)(E)” and an “exception[] to this general rule” under which
service is proper if the employee plays a sufficiently large role in
the corporation. Infra ¶ 42. We disagree with the dissent’s reading.
An “exception” of the sort that the dissent sees would effectively
be an amendment of the rule because it would add an entirely
new category to it. But the supreme court has no power to amend
a rule of procedure within an individual case. Rather, a rule of
procedure can be amended only by the court at the close of a
proscribed rulemaking process, see Utah Code of Jud. Admin. 11-
105(3)(A)–(C), or instead by the legislature with a two-thirds vote,
see Utah Const. art. VIII, § 4.
We thus disagree with the suggestion that the supreme
court was purporting to do this, instead concluding that the
supreme court was drawing a different distinction entirely. In the
relevant passages, the court noted that “[g]enerally, proper
service is not effected by serving the corporation’s receptionist,”
after which it stated that “[t]here are, however, exceptions to this
general rule” in situations “where the employee who received
service” played a certain kind of role within the corporation. In re
Schwenke, 2004 UT 17, ¶¶ 24–25, 89 P.3d 117 (quotation
simplified). Thus, the court wasn’t drawing a distinction between
the text or “letter” of rule 4 and an exception to the rule’s text.
Rather, the court was drawing a distinction between situations in
which a receptionist doesn’t qualify under the rule’s text (which
is the “general rule”) and situations in which a receptionist does
(which is the “exception”).
In drawing that distinction, the court set forth and relied
on the principles we’ve discussed above. In this sense, those
principles aren’t in any way separate from the rule’s text, but they
are instead the court’s direction about how to interpret it. And we
also see no basis for concluding that the court thought those
principles are somehow limited to cases involving receptionists.
Given this, we regard them as being equally applicable for cases
like this one involving another kind of employee.
20210494-CA 12 2023 UT App 88Griffin v. Snow Christensen
4(d)(1)(E). At the outset, we agree with the district court that this
presents a “fact-specific determination.” See, e.g., Direct Mail, 840
F.2d at 688 (“The determination of whether a given individual is
a managing or general agent depends on a factual analysis of that
person’s authority within the organization.” (quotation
simplified)); Gottlieb v. Sandia Am. Corp., 452 F.2d 510, 513 (3d Cir.
1971) (explaining that “the determination whether an individual
is a managing or general agent depends on a factual analysis of
that person’s authority within the organization” (quotation
simplified)); 71 A.L.R.2d 178 § 3[a] (1960) (whether “a particular
agent is a managing agent of a corporation, within the meaning of
that term in a statute, must depend upon the particular facts
involved” (quotation simplified)). Thus, in cases such as this one,
we agree that courts should consider the particular facts about the
person’s role within the corporation at issue.
¶33 Griffin suggested in his brief that he was challenging the
sufficiency of the evidence to support some of the court’s findings.
At oral argument, however, Griffin seemed to backtrack, initially
indicating that he might not be making a sufficiency-of-the-
evidence argument after all. In any event, he then agreed that
“there was evidence to support the findings” that the court made.
Having reviewed the record, we agree with his assessment.
We accordingly accept the facts as found by the court. And
this includes, of note, the court’s finding that Chapman’s
testimony was credible and its various findings about her role in
this firm.
¶34 But even accepting those facts as true, we still part ways
with the district court’s assessment of whether Chapman
qualified as a managing or general agent of Snow Christensen.
Chapman was far “more than a mere employee” of the firm. Beard,
336 P.2d at 126. She had been its “manager” for a decade and was
now its “administrator,” and there were only two (or maybe
three) other non-lawyer employees at the firm who were at her
level. Chapman also answered directly to the firm’s president,
speaking with him at least weekly and often “on a daily basis or
even more.” Such regular access to and communication with the
20210494-CA 13 2023 UT App 88Griffin v. Snow Christensen
firm’s president belies the suggestion that she was a “mere
employee” as that term was used in Beard.
¶35 Even so, Snow Christensen points to Beard’s statement that
a managing or general agent “must be in charge of some of its
property, operations, business activities, office, [or] place of
business.” 336 P.2d at 126. And on this front, it’s true that the
district court found that Chapman was “not free to control” the
firm’s “property, operations, business activities, office, or affairs
on her own.” But this statement from Beard was followed by the
disjunctive “or,” after which the supreme court opined that
persons qualify if they are “in some manner . . . responsible for or
have control over” the business’s “affairs.” Id. Here, Chapman
was at least “in some manner” “responsible” for the firm’s affairs.
She “worked under the direction and control” of its “president,
executive committee, board, various committees, and others,” she
attended its “committee meetings as an ex-officio member,” and
she had “authorization to implement the decisions” that had been
made “by either the board or committee members.”
¶36 Moreover, if there is any lingering question about whether
Chapman qualified as a “managing or general agent,” we again
note that In re Schwenke directed courts to apply this rule “in a
manner that will best effectuate” its “purpose of giving the
defendant adequate notice,” such that service would be
considered “fair in light of all the surrounding circumstances.”
2004 UT 17, ¶ 25 (quotation simplified). And as one example of a
situation where service would be proper, the supreme court
pointed to service on an employee who “played an integrated role
within” the corporation and would thus be positioned to “know
what to do with” the complaint. Id. Here, Chapman was the firm’s
office-wide administrator, she was identified as being part of its
“management” on its website, she regularly met with its
president, she sat in on its various committee meetings, and she
was routinely tasked with implementing decisions made by its
president or its committees. In this sense, she seems to have been
exactly what the supreme court was contemplating when it spoke
of an employee who plays an “integrated” role in a company and
20210494-CA 14 2023 UT App 88Griffin v. Snow Christensen
would be positioned to put a complaint into the right hands.
Holding otherwise would unnecessarily elevate form over
substance, an outcome that would be at odds with the directive
given by the supreme court on how to apply this rule.
¶37 As a final attempt to forestall this result, Snow Christensen
points to past precedent in which we’ve held that it’s “service of
process, not actual knowledge of the commencement of the action,
which confers jurisdiction” on a court. Bel Courtyard Invs., Inc. v.
Wolfe, 2013 UT App 217, ¶ 13, 310 P.3d 747 (quotation simplified).
This is of course true. But our decision is not at odds with this
principle. In that same precedent, we held that it’s the “proper
service of process” that “imparts notice that the defendant is being
sued and must appear and defend or suffer a default judgment.”
Id. (quotation simplified). So this simply begs the question: what
constituted “proper service of process” in this case? Under the
rule, proper service of process includes service on a “managing or
general agent.” Utah R. Civ. P. 4(d)(1)(E). And for the reasons
explained above, we conclude that Chapman fit comfortably
within the contours of that category that have been given by our
supreme court. Thus, to be clear, we are not holding that Snow
Christensen was properly served because it had actual knowledge
of Griffin’s suit. Rather, we’re holding that Snow Christensen was
properly served because Griffin gave a copy of his complaint to a
person who qualified under the rule. 4
4. The dissent suggests that our reading of the rule is “unwieldy”
and will cause district courts “to hold evidentiary hearings in
most cases” to determine the scope of the employee’s authority.
Infra ¶ 45. But if this is a defect, it’s shared by the dissent’s
proposed interpretation too. After all, the dissent’s interpretation
turns on whether the employee had “actual and independent
authority over the operations of the business,” infra ¶ 46, a
question that would likewise require inquiry into the employee’s
role within the corporation if this category is placed at issue.
(continued…)
20210494-CA 15 2023 UT App 88Griffin v. Snow Christensen
CONCLUSION
For the foregoing reasons, we conclude that Chapman qualified
as a managing or general agent of Snow Christensen for purposes
of rule 4(d)(1)(E) of the Utah Rules of Civil Procedure and that
Griffin’s service of process upon Snow Christensen was therefore
proper. Because of this, we reverse the district court’s decisions to
quash service and dismiss the amended complaint. 5
In any event, we’re less convinced than the dissent that our
reading of this rule (or even the dissent’s) will in fact produce
much more litigation than already occurs. After all, we’ve relied
heavily on the interpretations of this rule that were previously set
forth in Beard and In re Schwenke, and yet neither of those cases
apparently prompted such excess litigation. And the likely reason
for this is found in the rule itself. As noted, the rule has three
categories of persons who can accept service for a corporation,
and we’re only interpreting one of those categories in this appeal.
The other two—“an officer” and an “other agent authorized by
appointment or law to receive process”—are more readily
defined, so a risk-avoidant plaintiff will ordinarily be incentivized
to start there when attempting to serve a corporation.
5. The parties also raised a few additional issues in the briefing
that can be quickly resolved.
First, Snow Christensen filed a cross-appeal in which it
argued that the district court erred by dismissing the case without
prejudice. In his reply brief, Griffin conceded that if dismissal was
appropriate, it should have been with prejudice. Because we’ve
reversed the dismissal, we need not address this issue.
Second, Griffin argues that the dismissal of his suit for
failure of service violates the Due Process Clause of the U.S.
Constitution and Open Courts Clause of the Utah Constitution.
Because we’ve reversed the dismissal on other grounds, we need
not address this issue.
(continued…)
20210494-CA 16 2023 UT App 88Griffin v. Snow Christensen
OLIVER, Judge (dissenting):
¶38 I disagree with the majority’s conclusion that Chapman
was “a managing or general agent” of Snow Christensen and that
service of the complaint on her was therefore proper under rule
4(d)(1)(E) of the Utah Rules of Civil Procedure. Chapman had no
control over the firm’s operations or affairs and had no authority
to act using her own discretion or judgment; she was limited to
implementing the decisions made by the firm’s president, board,
and committees. I further disagree with the majority’s conclusion
that the two Utah cases to address this issue evince the
pronouncement of our supreme court that such a person is a
“managing or general agent” under the rule. Because I would
affirm the district court’s ruling that service was ineffective here,
I respectfully dissent.
¶39 Our supreme court has considered service on a “general or
managing agent” in only two cases. In the first case, Beard v. White,
Green & Addison Assocs., Inc., 336 P.2d 125 (Utah 1959), the
supreme court considered a situation where service had been
made upon an individual who the plaintiff claimed was the
“foreman in charge” of the defendant’s Utah location. Id. at 126.
In a two-page opinion, the court stated,
[T]he person served must be more than a mere
employee. He must be in charge of some of its
property, operations, business activities, office,
Third, Griffin argues that because the case was dismissed
for lack of jurisdiction, the court did “not have authority to award
costs.” As Snow Christensen points out in response, however, it
did not ultimately “claim” costs, thus allegedly mooting the
court’s prior order holding that Snow Christensen was “entitled
to recover costs.” We agree that the issue appears moot; but in any
event, because the order of costs was based on the court’s
conclusion that Snow Christensen was the prevailing party, and
because we’ve reversed the ruling on which that conclusion was
based, the award of costs is reversed as well.
20210494-CA 17 2023 UT App 88Griffin v. Snow Christensen
place of business or in some manner be responsible
for or have control over its affairs.
Id.¶40 But the supreme court did not consider whether the
“foreman” had any such duties or responsibilities. Id. Rather, the
court concluded that the individual served was not the “foreman”
of the Utah location. Id. And on that basis, it “reversed with
directions to quash the service of summons and set aside the
judgment.” Id.¶41 In the second case, In re Schwenke, 2004 UT 17, 89 P.3d 117,
our supreme court identified the two competing approaches to
determining whether service on a receptionist was effective under
rule 4(d)(1)(E). 6 The first approach adheres to the general rule that
service of process must comply with the letter of rule 4(d)(1)(E).
Id. ¶ 24 (citing cases from various jurisdictions finding service on
receptionist insufficient). The second approach is an “exception[]
to this general rule,” which
6. The majority reads In re Schwenke as “drawing a distinction
between situations in which [service on] a receptionist doesn’t
qualify under the rule’s text” and when it does, rather than
“drawing a distinction between the text or ‘letter’ of rule 4 and an
exception to the rule’s text.” Supra note 3. But the supreme court
necessarily identified the distinction to be between the general
rule of adhering to the text and an “exception[] to this general
rule,” In re Schwenke, 2004 UT 17, ¶ 25, 89 P.3d 117, because a
receptionist simply does not qualify under the text of rule
4(d)(1)(E). It is only by loosening adherence to the text through
the exception that service on a receptionist could ever be sufficient
under rule 4(d)(1)(E). See id. (describing the exception set forth by
the Ninth Circuit in Direct Mail Specialist, Inc. v. Eclat Computerized
Technologies, Inc., 840 F.2d 685, 688 (9th Cir. 1988) as “look[ing] at
various factors to ensure that the service is fair in light of all the
surrounding circumstances”).
20210494-CA 18 2023 UT App 88Griffin v. Snow Christensen
often found service to be effective where the
employee who received service had a significant
amount of authority or apparent authority within
the organization; where the employee played an
integrated role within the organization such that he
or she would know what to do with papers; or
where there were other assurances that the
documents would reach the intended recipient.
Id. ¶ 25 (citing two cases finding service on receptionist effective).
¶42 The supreme court then summarized the particular facts of
In re Schwenke, including that the petition was given to a
“common-area receptionist,” the receptionist was neither
supervised nor employed by the Utah State Bar Office of
Professional Conduct (OPC), the receptionist notified OPC of
hand deliveries but did not deliver them, and the process server
received no assurances of delivery to OPC. Id. ¶ 26. After
discussing the reasons OPC must be apprised of an attorney’s
intent to seek readmittance, the supreme court concluded, that
“[u]nder the circumstances of th[e] case, service of the [p]etition
on the common-area receptionist . . . did not constitute effective
service of process.” Id. ¶¶ 27–28.
¶43 Here, the majority concludes the In re Schwenke court
adopted the exception to the general rule and, accordingly,
applies it to analyze whether Chapman was a managing agent.
But a close reading of In re Schwenke reveals that our supreme
court did not, in fact, adopt the exception. The court did not state
that it was adopting one approach over the other as the standard
for determining whether service was effective on a corporation
under rule 4(d)(1)(E), 7 nor did it reference a single reason it would
7. I disagree with the majority’s view that our supreme court
adopted the exception to the general rule because it “favorably
cited” the Ninth Circuit’s decision in Direct Mail. Supra ¶ 31. In re
Schwenke contains no analysis of whether the supreme court
(continued…)
20210494-CA 19 2023 UT App 88Griffin v. Snow Christensen
adopt one approach over the other. This is not surprising because
service on the receptionist did not suffice under either approach.
Thus, it was unnecessary for the court to choose from the two
competing approaches. I therefore disagree with the majority’s
view that “in In re Schwenke, our supreme court directed courts to
apply this rule ‘in a manner that will best effectuate’ its ‘purpose
of giving the defendant adequate notice,’ such that service would
be considered ‘fair in light of all the surrounding circumstances.’”
Supra ¶ 36 (citation omitted).
¶44 And while the majority states it does not rely on actual
notice to conclude that service of process was sufficient here, supra
¶ 37, application of the exception to the general rule risks actual
notice becoming the test, and an unwieldy one at that. Applying
the majority’s view, district courts will need to hold evidentiary
hearings 8 in most cases in order to make the required factual
determinations as to whether the person served “‘played an
integrated role within’ the corporation and would thus be
positioned to ‘know what to do with’ the complaint.” Supra ¶ 36
(citation omitted).
¶45 In contrast, requiring that the person served is a managing
agent with actual and independent authority over the operations
agreed with, or intended to adopt, the exception embraced by the
Ninth Circuit. Rather, Direct Mail was simply cited as one example
of a court that has adopted the exception—the other example
being the Southern District of New York. In re Schwenke, 2004 UT
17, ¶ 25.
8. The majority suggests that these hearings will not happen
because “we’ve relied heavily on the interpretations of this rule
that were previously set forth in Beard and In re Schwenke.” Supra
note 4. I disagree. The reason those two cases have not “prompted
such excess litigation” over service of process is that the supreme
court did not adopt the exception to the rule in In re Schwenke. It
is only now, with its reading of In re Schwenke, that the majority is
opening those floodgates.
20210494-CA 20 2023 UT App 88Griffin v. Snow Christensen
of the business—as contemplated by the plain text of rule
4(d)(1)(E)—provides clear direction to litigants and district courts
as to whom a plaintiff may properly serve. And, as a result,
evidentiary hearings would be required in only the rare case. This
court should not unnecessarily increase the burdens on the lower
courts when the rule, as written, already provides clear guidance.
¶46 It is also easy to envision a situation where the exception
swallows the rule. For example, the assistant to a corporation’s
president plays “an integrated role within the organization”
despite the non-management level of the position. And making
sure important papers get delivered to the president is precisely
the assistant’s job, but it has no relationship to how high up in the
organization the assistant sits. Under the majority’s view, the legal
assistant to the president of Snow Christensen would presumably
also qualify as a “managing agent” under rule 4(d)(1)(E), as
would, presumably, any attorney employed by the firm. But we
do not know for certain, because it would require an evidentiary
hearing to make that determination.
¶47 Moreover, although other states’ rules on service of process
explicitly permit service on the “secretary or assistant” to a
corporation’s registered agent, officers, and managing or general
agent, see, e.g., Ark. R. Civ. P. 4(f)(5); Colo. R. Civ. P. 4(e)(4)(A)–
(D), Utah’s rule has not been expressly amended in the same way.
And it is worth noting that while Arkansas permits service of
process on a secretary or assistant, it does not permit service of
process on an office manager. See Clouse v. Ngau Van Tu, 274
S.W.3d 344, 345 (Ark. Ct. App. 2008) (ruling service upon office
manager who was not the registered agent insufficient).
¶48 Applying the text of rule 4(d)(1)(E) to the facts before us,
Chapman was not a “general or managing agent” of the firm. A
“managing agent” is a “person with general power involving the
exercise of judgment and discretion, as opposed to an ordinary
agent who acts under the direction and control of the principal.”
Managing Agent, Black’s Law Dictionary (11th ed. 2019); see also
Bridgeport Music, Inc. v. Rhyme Syndicate Music, 376 F.3d 615, 624
20210494-CA 21 2023 UT App 88Griffin v. Snow Christensen
(6th Cir. 2004) (“A managing agent is one authorized to transact
all business of a particular kind at a particular place and must be
vested with powers of discretion rather than being under direct
superior control.”). The “phrase ‘managing or general agent’ does
not refer to any agent of the corporation, but one who operates at
its highest levels, or at least has overall authority to make high-
level decisions on the part of the enterprise.” Cooney v. Barry School
of Law, 994 F. Supp. 2d 268, 270 (E.D.N.Y. 2014).
¶49 Here, Chapman may well be “‘more than a mere
employee,’” supra ¶ 34, and an agent of the firm, but she is not a
managing agent. She did not make high-level decisions for the
firm, and she did not exercise her own judgment and discretion.
In fact, Chapman could not make even small, routine decisions on
behalf of the firm without authorization: she could not order
office supplies or furniture, she did not have a firm credit card,
and she was not authorized to sign any checks. And while she
attended the firm’s committee meetings, she did not have a vote
in any committee decisions. Indeed, she could only “implement
the decisions that ha[d] been made” by the president, board, and
various committees. Simply put, Chapman did not exercise any
control over the firm’s operations or affairs, and she could act only
under the direction of others.
¶50 In a case where service was made under these same
circumstances—on the office manager of a law firm—the United
States Court of Appeals for the Third Circuit concluded that
service was not proper because the office manager “lacked actual
authority.” Ayers v. Jacobs & Crumplar, PA, 99 F.3d 565, 567–568
(3d Cir. 1996). Other federal courts have similarly concluded that
service on an office manager was not proper service on the
corporation. 9 See, e.g., Matero v. Digital Ink Ams. LLC, No. 6:22-cv-
9. The federal rule for service of process on a corporation is nearly
identical to the Utah rule. Compare Utah R. Civ. P. 4(d)(1)(E)
(allowing service “by delivering a copy of the summons and
complaint to an officer, a managing or general agent, or other
(continued…)
20210494-CA 22 2023 UT App 88Griffin v. Snow Christensen
1606-CEM-LHP, 2023 WL 2527046, at *1 (M.D. Fla. Mar. 15, 2023);
McInerney v. Roosen Varchetti & Olivier, PLLC, No. 17-10037, 2017
WL 2403577, at *3 (E.D. Mich. June 1, 2017).
¶51 In the absence of a clear pronouncement from our supreme
court that Utah courts should apply the exception, this court
should apply the general rule. And under rule 4(d)(1)(E),
Chapman was not a general or managing agent. Because the
majority misreads In re Schwenke to adopt the exception to the
general rule, it erroneously concludes that applying the rule as
written “elevate[s] form over substance” because Chapman
“seems to have been exactly what the supreme court was
contemplating when it spoke of an employee who plays an
‘integrated’ role in a company and would be positioned to put a
complaint into the right hands.” See supra ¶ 36.
¶52 I would affirm the district court’s conclusion that Griffin
failed to properly serve Snow Christensen by serving Chapman.
agent authorized by appointment or law to receive process”), with
Fed. R. Civ. P. 4(h)(1)(b) (allowing service “by delivering a copy
of the summons and of the complaint to an officer, a managing or
general agent, or any other agent authorized by appointment or
by law to receive service of process”).
20210494-CA 23 2023 UT App 88