Marshall v. Warwick

• Citation: 155 F.3d 1027
• Decision Date: 04 December 1998
• Docket Number: No. 97-4022,97-4022
• Parties: Marilyn M. MARSHALL, Appellant, v. Mikel WARWICK, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1027

155 F.3d 1027

Marilyn M. MARSHALL, Appellant, v. Mikel WARWICK, Appellee.

No. 97-4022.

United States Court of Appeals,

Eighth Circuit.

Submitted April 20, 1998.

Decided Sept. 18, 1998.

Rehearing Denied Dec. 4, 1998.

Alicia D. Garcia, Rapid City, SD, argued (Mike Abourezk, on the brief), for Appellant.

Curt Ireland, Rapid City, SD, argued, for Appellee.

Before McMILLIAN, LOKEN and HANSEN, Circuit Judges.

McMILLIAN, Circuit Judge.

Marilyn M. Marshall appeals from a final order entered in the United States District Court ¹ for the District of South Dakota dismissing her tort action against Mikel Warwick for insufficient service of process. Marshall v. Warwick, No. CIV 97-3002 (D.S.D. Oct. 23, 1997) (Order) (hereinafter "slip op."). For reversal, Marshall argues that the district court erred in granting Warwick's motion to dismiss for insufficient service of process under Fed.R.Civ.P. 12(b)(5) because (1) Warwick's actual notice of the impending lawsuit together with Marshall's substantial compliance with the service of process requirements of S.D. Codified Laws § 15-6-4 (Michie 1984 & Supp.1998) qualified as substituted service of process; (2) Warwick admitted service of process by admitting receipt of the summons and complaint; and (3) Warwick's mother, who qualifies as a process server, served Warwick with process when she delivered to him a copy of the summons and complaint.

For the reasons discussed below, we hold that Marshall did not comply with the requirements for substituted service of process under South Dakota law. Accordingly, we affirm the order of the district court.

Jurisdiction

This case was originally filed in South Dakota state court. Warwick removed the case to the district court pursuant to 28 U.S.C. § 1441 where jurisdiction was proper based upon diversity of citizenship under 28 U.S.C. § 1332. ² Jurisdiction on appeal is proper based upon 28 U.S.C. § 1291. The notice of appeal was timely filed under Rule 4(a) of the Federal Rules of Appellate Procedure. Because Marshall initiated this action in South Dakota and attempted to serve Warwick with process under South Dakota's long arm statute, S.D. Codified Laws § 15-6-4(f) (Michie 1984), South Dakota law is the law of the forum and controls the issues on appeal. See Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

Background

The relevant facts are not disputed. On December 23, 1993, Marshall and Warwick were involved in a car accident in Gregory, South Dakota. Marshall sustained injuries and incurred several thousand dollars in medical expenses. She filed a complaint against Warwick in South Dakota state court and hired a Minnesota process server, Dennis Peart, to serve Warwick with a copy of the complaint and summons. On December 13, 1996, Peart went to Warwick's Minnesota residence, where he lived with his mother, to serve him with the papers. Warwick was not at home, nor was he at his place of employment. Peart then contacted Warwick's mother, Caren Warwick, at her place of employment. Caren Warwick agreed to take the papers and deliver them to her son at their dwelling. Peart then delivered the papers to Caren Warwick at her place of employment.

In January 1997 Warwick removed the case to the United States District Court for the District of South Dakota. He then filed a motion to dismiss for insufficient service of process. While Warwick admitted that he received the complaint and summons from his mother, he contended that he was never "served" with the papers. Slip op. at 2. Caren Warwick, in an affidavit, testified that she agreed to deliver the papers to her son, but did not agree to make service. Id. at 1. The district court reasoned that (1) because service of a complaint and summons at Warwick's place of employment was not valid service under S.D. Codified Laws § 15-6-4(e) (Michie 1984), service upon his mother at her place of employment was also not valid; (2) receipt of a complaint and summons is not the same as service of process required to commence an action; and (3) there was no proof of service of process as required by S.D. Codified Laws § 15-6-4(g) (Michie Supp.1998). Slip op. at 2. The district court concluded that Marshall's process server failed to comply with the requirements for service of process or substituted service of process under South Dakota law. Id. at 3. The district court granted Warwick's motion to dismiss without costs and without prejudice. This appeal followed.

Discussion

A district court has the power to dismiss a case for failure to comply with its rules. See Moore v. St. Louis Music Supply Co., 539 F.2d 1191, 1193 (8th Cir.1976) (dismissal for failure to prosecute). In reviewing an order to dismiss for insufficient service of process, we review de novo the determination that service of process was insufficient and we review for abuse of discretion the decision to dismiss the complaint. See Adams v. AlliedSignal General Aviation Avionics, 74 F.3d 882, 884-86 (8th Cir.1996) (dismissal for insufficient service of process); Umbenhauer v. Woog, 969 F.2d 25, 28 (3d Cir.1992) (defective service by international mail); Edwards v. Edwards, 754 F.2d 298, 299 (8th Cir.1985) (per curiam) (dismissal for failure to serve summons and complaint within 120 days after filing of complaint).

South Dakota law allows for service of process on a defendant either by serving the defendant personally with a copy of the summons, see S.D. Codified Laws § 15-6-4(d)(10) (Michie Supp.1998), or, if the defendant cannot be found, by leaving a copy of the summons at the defendant's dwelling in the presence of a family member over the age of fourteen, see id. § 15-6-4(e) (Michie 1984). Marshall argues that delivery of the summons to Warwick's mother at her place of employment qualified as valid substituted service of process under § 15-6-4(e) (Michie 1984). We disagree.

Leaving a summons with a family member at a place other than the defendant's dwelling is not valid substituted service of process. See Chipperfield v. Woessner, 84 S.D. 13, 166 N.W.2d 727 (1969) (holding that service of process upon the defendant's mother at her dwelling was not sufficient process because the dwelling was not the defendant's); Hays v. Alway, 39 S.D. 586, 166 N.W. 139, 141 (1917) (same). Moreover, leaving a copy of the summons at the defendant's place of employment, when the service of process statute requires that the server leave it at the defendant's dwelling, is not valid service of process. See Wagner v. Truesdell, 1998 SD 9, 574 N.W.2d 627, 629 (1998) (Wagner ) (adopting the holding in Thiele v. Stich, 425 N.W.2d 580 (Minn.1988) (Thiele )); see generally 4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1096, at 74 (2d ed.1987). Because service of process was not made at Warwick's dwelling, delivery of the summons and complaint to Warwick's mother at her place of employment was not valid substituted service of process.

Marshall argues that Warwick's actual notice of the impending action, combined with her own substantial compliance with the requirements of substituted service, is sufficient personal service of process as a matter of law. She relies on language in Wagner adopted as the law of South Dakota: "[A]ctual notice coupled with substantial compliance is sufficient to satisfy personal service of process requirements...." 1998 SD 9, at * 9, 574 N.W.2d at 629. Prior to Wagner, South Dakota required strict compliance with the service of process statute. See, e.g., Nolan v. Nolan, 490 N.W.2d 517, 519-21 (S.D.1992). Wagner involved personal service of process, and the South Dakota Supreme Court indicated in Wagner that its holding was "a narrow one." 1998 SD 9, at * 9 n. 2, 574 N.W.2d at 629 n. 2. Therefore, while it is clear from Wagner that the South Dakota Supreme Court has adopted the substantial compliance standard for personal service of process, it is not clear that the South Dakota Supreme Court would extend the substantial compliance standard to substituted service of process. While some states have extended the substantial compliance standard to all service of process statutes, see, e.g., Kan. Stat. Ann. § 60-204, many courts have limited the application of that standard. See County of Riverside v. Superior Court, 54 Cal.App.4th 443, 450-51, 62 Cal.Rptr.2d 747 751-52 (1997) (suggesting that notice by publication might require strict compliance rather than substantial compliance); Bedford Computer Corp. v. Graphic Press, Inc., 484 So.2d 1225, 1227 (Fla.1986) (per curiam) (requiring "strict ... compliance" to satisfy substituted service of process) (quoting Napoleon B. Broward Drainage Dist. v. Certain Lands Upon Which Taxes Were Due, 160 Fla. 120, 123, 33 So.2d 716, 718 (1948)); Bible v. Bible, 259 Ga. 418, 419, 383 S.E.2d 108, 110 (1989) (rejecting the substantial compliance standard for all service of process); Martin v. Triol, 121 Wash.2d 135, 144, 847 P.2d 471, 475 (1993) (en banc) (holding substantial compliance may satisfy the requirements for personal service of process but only strict compliance satisfies the requirements for substituted service of process); Union Bay Preservation Coalition v. Cosmos Development & Admin. Corp., 127 Wash.2d 614, 624, 902 P.2d 1247, 1252 (1995) (en banc) (Talmadge, J., dissenting) ("The doctrine of strict compliance applies with even greater vigor in circumstances involving constructive or substituted service rules or statutes.") (citation omitted). Therefore, we do not assume that the South Dakota Supreme Court intended to extend the substantial compliance standard to substituted service of process.

Moreover, there are several compelling reasons to limit the application of the substantial compliance standard to personal service of process. In cases of personal service of process, a court can be reasonably certain that the defendant had notice of the impending suit because the defendant was present for the service....