Curtis v. Nid Pty, Ltd.

• Decision Date: 06 March 2003
• Docket Number: No. 4:02-CV-0362.,4:02-CV-0362.
• Citation: 248 F.Supp.2d 836
• Parties: Chad A. CURTIS, Plaintiff, v. NID PTY, LTD., et al., Defendants.
• Court: U.S. District Court — Southern District of Iowa

248 F.Supp.2d 836

Chad A. CURTIS, Plaintiff, v. NID PTY, LTD., et al., Defendants.

No. 4:02-CV-0362.

United States District Court, S.D. Iowa, Central Division.

March 6, 2003.

Harley Erbe, Nelson & Erbe PLC, Des Moines, IA, for Plaintiff. Henry A. Harmon, Grefe & Sidney PLC, Des Moines, IA, for Defendants.

ORDER GRANTING PLAINTIFF'S MOTION TO RECONSIDER

GRITZNER, District Judge.

This matter comes before the Court on Plaintiffs motion for reconsideration of the Court's January 31, 2003, order granting Defendant's motion to dismiss. A hearing on the motion was held February 20, 2003. Representing the Plaintiff was Harley Erbe; representing the Defendant was Henry Harmon.

RELEVANT FACTS

The January 31, 2003, order granted Defendant's motion to dismiss on the grounds that Plaintiff failed to demonstrate the Defendant had been properly served. (Clerk's No. 18). On February 3, 2003, Plaintiff filed this motion pursuant to Federal Rule of Civil Procedure 59(e) ("Fed.R.Civ.P. 59(e)"), praying the Court reconsider its judgment based on new evidence not available to the Plaintiff prior to the Court's entry of judgment.

The new evidence offered by Plaintiff is documentation which indicates proper service was effected upon Defendant NID PTY. Counsel for the Plaintiff explains he received a letter from process server APS International in early November. The letter informed counsel NID PTY had been served and the proof of service documentation had been sent to the court of record by the United States Department of State. Upon receipt of the letter, counsel contacted both the Union County Clerk of Court and the clerk of this court, requesting copies of those documents. Both courts told him the documents were not in the case file. On February 3, 2003, counsel again contacted the Union County Clerk of Court and requested the documents. The documents were then located and bore an October 1, 2002, Union County Clerk of Court date stamp.

Plaintiff brings this motion pursuant to FRCP 59(e). The rule only sets forth the deadline for filing a motion to alter or amend a judgment: "Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment." Fed.R.Civ.P. 59(e). However, the Eighth Circuit provides the standard used to determine whether an Fed. R.Civ.P. 59(e) motion is properly before the court. Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir.1988). The function of an FRCP 59(e) motion is limited to correcting "`manifest errors of law or fact or to present newly discovered evidence.'" Id. (quoting Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir.), as amended, 835 F.2d 710 (7th Cir.1987)). A motion to alter or amend is not the means by which a party can raise or argue an issue "`which could, and should have been made'" prior to the entry of final judgment. Garner v. Arvin Indus. Inc., 77 F.3d 255, 258-59 (8th Cir. 1996) (quoting Bannister v. Armontrout, 4 F.3d 1434,1440 (8th Cir. 1993)).

The Court finds this motion was timely filed and presents newly discovered evidence which was unavailable¹ to the Plaintiff prior to the entry of judgment; and, therefore, this Fed.R.Civ.P. 59(e) motion is properly before the Court. Innovative Home Health Care, Inc. v. P.T.-O.T. Assoc. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir.1998).

DISCUSSION

Plaintiff prays the Court reconsider its January 31, 2003, order granting Defendant's motion to dismiss for failure to demonstrate Defendant was properly served. Plaintiff argues the documents now filed with the court prove Defendant was timely and properly served. The documents include: (1) a Certification of an Executed Letter Rogatory signed by Melanie Harris, Vice Consul of the United States, Department of Foreign Affairs and Trade of Australia; (2) an affidavit and letter from Bhaskari Siva, Deputy Registrar, Supreme Court of New South Wales, certifying that service of process upon NID PTY was made in compliance with Australian law; and (3) the affidavit of Susanna Abbatantuono, Sheriffs Officer, Sydney City, indicating she served Jacqui Carrington, personal assistant to NID PTY's financial director, at NID PTY on June 25, 2002.

The documents were sent to the United States Department of State and then to the Union County Clerk of Court; the documents were received by the Union County Clerk of Court on October 1, 2002—prior to Plaintiffs November 26, 2002, service deadline.² Plaintiffs counsel indicates he requested the documents in early November and was informed by the Union County Clerk of Court the documents were not in the file. It was not until counsel's February 3, 2003, request, made after receiving this Court's prior order, that the Union County Clerk of Court located the documents. The Court finds these documents provide proof that Defendant was served. The Court further finds neither Plaintiff nor Plaintiffs counsel was at fault for the unavailability of these necessary documents.

Acceptance of Service

Defendant does not contest the authenticity or timeliness of the documents, but argues Plaintiff has not complied with Iowa Rule of Civil Procedure 1.305 ("Rule 1.305") because Ms. Carrington is not a person qualified to accept service for the Defendant.³ However, as Plaintiff counters, Iowa courts have recognized employees who perform some managerial responsibilities are deemed authorized to receive service. See, e.g., Waterloo Canning Co. v. Mun. Ct. of Waterloo, 214 Iowa 1169, 243 N.W. 287, 288 (Iowa 1932) (finding a cashier who ran the office in the manager's absence, signed checks, and managed defendant's company corporate account, was an agent for purposes of service of process); Newton Mfg. Co. v. Biogenetics, Ltd., 461 N.W.2d 472, 474 (Iowa Ct.App. 1990) (finding an employee of defendant's company which received service of process on prior occasions qualified as a person qualified to receive service under Rule 56.1 (now 1.305)); Life v. Best Refrigerated Exp., Inc., 443 N.W.2d 334, 337 (Iowa Ct. App.1989) (finding the term "managing agent" has no strict definition and cases have found "`a person is a `managing agent' if his position is one of sufficient character and rank to make it reasonably certain that the corporation will be appraised of the service made through the agent'") (quoting 19 Am.Jur.2d Corporations § 2198 (1986)).

Plaintiff contends he has made a prima facie showing of jurisdiction and the burden of proof has shifted to the Defendant to rebut that presumption. Hovey v. Elson, 303 N.W.2d 132, 135 (Iowa 1981) ("Plaintiff has the burden to sustain the requisite jurisdiction; however, once a prima facie case has been established, the burden shifts to the defendant to produce evidence to rebut or overcome the prima facie showing."); Strong v. Jarvis, 524 N.W.2d 675, 677 (Iowa Ct.App.1994) ("There is a strong presumption regarding the return of service of an officer and that return cannot be impeached except by very clear and satisfactory proof.").

The Court agrees with Plaintiff. By serving Ms. Carrington, the assistant to NID PTY's financial director, Plaintiff has raised a rebuttable presumption of valid service; it is Defendant's burden to rebut this presumption. Strong, 524 N.W.2d at 677. Ms. Carrington was of sufficient rank to insure NID PTY would be apprised of service and Defendant's mere assertion that she was not authorized to accept service does not rebut the presumption. Life, 443 N.W.2d at 337. Furthermore, the record demonstrates Ms. Carrington did in fact apprise the appropriate persons of service since NID PTY secured local counsel and filed a notice of removal thirty days after Ms. Carrington accepted service.⁴

Minimum Contacts

Defendant alternatively urges the Court to uphold dismissal of the case because Plaintiff has not complied with either Iowa Rule of Civil Procedure 1.306 or Iowa Code § 617.3. The January 31, 2003, order outlines Iowa Rule of Civil Procedure 1.306 ("Rule 1.306") as an alternative to Iowa Code § 617.3 to serve a foreign defendant. Plaintiff asserts jurisdiction over the Defendant based on Rule 1.306; therefore, the Court will not readdress Plaintiffs failure to satisfy § 617.3.

Defendant argues Rule 1.306 has not been satisfied because Plaintiff has not established the Defendant had the minimum contacts with the state of Iowa necessary to allow the Court to assert personal jurisdiction. As stated in the January 31, 2003, order, personal jurisdiction pursuant to Rule 1.306 is allowed if the corporation has the "necessary minimum contact with the state of Iowa". Iowa R. Civ. P. 1.306. Therefore, when a plaintiff asserts the court has jurisdiction over a defendant pursuant to Rule 1.306, plaintiff must demonstrate defendant had the necessary minimum contacts with the state. Larsen v. Scholl, 296 N.W.2d 785, 787-88 (Iowa 1980) (finding "jurisdiction under our rule 56.2 is coextensive with the outer limitations of constitutional due process"; therefore, the court examines "whether the assertion of in personam jurisdiction over the nonresident defendant satisfies the requirement of fair play and substantial justice") (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).

However, the Court further noted the issue of minimum contacts was premature because Plaintiff had not demonstrated service upon NID PTY. Plaintiffs motions concerning minimum contacts were stayed until it was determined whether Plaintiff demonstrated service of process. Since the Court now finds service has been demonstrated, those motions are properly before the Court. As such, the issue of minimum contacts is not fully submitted, and dismissing the case for failure to demonstrate minimum contacts would be premature.

Original Notice Defects

Defendant additionally argues dismissal should be upheld because the Original Notice was defective.⁵ Defendant asserts the Original Notice is defective because it states the Defendant must file an...