Burruss v. Liming, File No. 27CV06-7683.

• Decision Date: 24 August 2006
• Docket Number: File No. 27CV06-7683.
• Parties: James Burruss, Plaintiff, v. Troy Hamilton Liming, Defendants.
• Court: Minnesota District Court

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James Burruss, Plaintiff, v. Troy Hamilton Liming, Defendants.

File No. 27CV06-7683.

District Court of Minnesota, Fourth Judicial District.

August 24, 2006.

The above-entitled matter came before the Honorable Robert A. Blaeser, Judge of Hennepin County District Court on August 24, 2006 on Defendant's Motion to Dismiss.

Adam P. Rutzik, Esq., appeared for and on behalf of Plaintiff.

Daniel Hintz, Esq., appeared for and on behalf of Defendant.

ORDER AND MEMORANDUM

ROBERT A. BLAESER, Judge of District Court.

Based upon all files, records, and proceedings herein, along with the arguments of counsel,

IT IS HEREBY ORDERED:

1. Defendant's Motion is DENIED.

2. The attached memorandum is incorporated herein by reference.

MEMORANDUM

Facts

Plaintiff James Burruss alleges that he was struck by Defendant Troy Liming's vehicle and sustained injuries on December 15, 1999.

Plaintiff retained attorney Adam P. Rutzik on December 8, 2005, several days after Plaintiff's previous attorney withdrew from representing Plaintiff. On December 9, 2005, Carrie A. Ossmo, an administrative assistant for Mr. Rutzik first attempted to locate Defendant at Mr. Rutzik's direction. She conducted an internet search through DEX Online using the 7613 NW Baldwin Avenue, Lawton, Oklahoma address listed in the police report. At that time, this constituted the only information Plaintiff's counsel had regarding Defendant's whereabouts. A DEX listing existed for a T.H. Liming at the aforementioned address. Ms. Osmo called the number listed on the internet site. The woman who answered Ms. Osmo's call acknowledged knowing Defendant and indicated she could get a message to him. In her affidavit, Ms. Ossmo does not indicate the identity of the woman with whom she spoke nor does she state whether she inquired as to where Defendant actually resided. Defendant asserts that he was never notified of the conversation. Mr. Rutzik contends that because the DEX listing matched the only address Plaintiff had and the woman who answered the phone indicated that she would get a message to Defendant, he firmly believed that Defendant resided at the Lawton, Oklahoma address.

Plaintiff's counsel provided the Sheriff of Comanche County, Oklahoma with the Summons and Complaint in this matter on December 12, 2005. The Sheriff executed an Affidavit of Not Found on December 16, 2005. The Sheriff's affidavit indicates that Defendant's brother, Charles Liming was located, who indicated that Defendant resided in Dallas, Texas at an unknown address. Plaintiff then filed the Summons and Complaint on the Minnesota Commissioner of Public Safety on January 19, 2006 for service by publication pursuant to Minnesota Statutes section 170.55. On February 3, 2006, Deputy Constable H. Mahmoud personally served Defendant.

Defendant contends that he lived in Minneapolis in 1999 while he attended school. In November 2000, he moved back to his parents house in Lawton, Oklahoma (Comanche County). He moved to Euless, Texas (Tarrant County) in August 2003 and Grapevine, Texas in 2004, where he has lived ever since

Defendant now moves to dismiss, asserting that for service on the Comanche County sheriff was insufficient and therefore the actual service made on the Defendant occurred after the expiration of the six-year statute of limitations.

Analysis

Defendant brought this motion pursuant to Rule 12.02(d), contesting the sufficiency of service of process. According to the Minnesota Rule of Civil Procedure 3.01:

A civil action is commenced against each defendant: . . .

(c) when the summons is delivered to the sheriff in the county where the defendant resides for service; but such delivery shall be ineffectual unless within 60 days thereafter the summons is actually served on that defendant or the first publication thereof is made.

Minn. R. Civ. P. 3.01. Defendant emphasizes the text of the rule, "sheriff in the county where the defendant resides," contending that service on the sheriff of Comanche County, Oklahoma was insufficient. However, in McBride v. Bitner, the Minnesota Supreme Court held that delivery to a Sheriff's Department in a county where defendant no longer resided was proper if "defendant was, so far as plaintiff knew, still a resident of the county and had actually lived there at the time of the accident." 310 N.W.2d 558, 561 (Minn. 1981) (reviewing the prior version of Minnesota Rule of Civil Procedure 3.01, which used the language "delivered to the proper officer for such service"). In Bliss v. Stevens the Minnesota Court of Appeals held that, "[d]elivery of the summons to the sheriff of the county where a defendant previously has lived satisfies rule 3.01 and commences a suit against the defendant if the plaintiff reasonably believes that the defendant still...