Ann Dorothy Ruch v. Robbert P. Osterholt ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0304
Ann Dorothy Ruch,
Appellant,
vs.
Robbert P. Osterholt, et al.,
Respondents.
Filed September 8, 2015
Affirmed
Hooten, Judge
LeSueur County District Court
File No. 40-CV-14-250
Karl O. Friedrichs, Friedrichs Law Office, Mankato, Minnesota (for appellant)
Lisa M. Chesley, Chesley, Harvey and Carpenter, Mankato, Minnesota (for respondents)
Considered and decided by Reilly, Presiding Judge; Hooten, Judge; and Toussaint,
Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
Appellant challenges the district court’s vacation of a default judgment on the
basis of insufficient service, arguing that the district court erred by concluding that

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
compliance with California’s service requirements is not sufficient under Minnesota law
to confer personal jurisdiction over nonresident defendants. We affirm.
FACTS
On March 11, 2014, appellant Ann Dorothy Ruch filed a complaint in Minnesota
district court against respondents Robbert P. Osterholt and Apomix, LLC, alleging,
among other things, fraud and wrongful conversion of insurance proceeds and requesting
monetary relief in the amount of $74,000. Osterholt is the listed manager of Apomix.
Prior to filing the complaint, Ruch tried to serve respondents at the registered address of
Apomix, which was in Minnesota, but learned that Apomix was no longer at that address.
Ruch then tried to serve respondents at Osterholt’s California address, which was the
address of The UPS Store where Osterholt rented a commercial post office box. On
February 3, 2014, a Los Angeles County Sheriff’s Deputy served the summons and
complaint by delivering them to an employee of The UPS Store, who accepted the
summons and complaint on behalf of Osterholt. The deputy then mailed the summons
and complaint to Osterholt at the same address by first class mail, postage prepaid. The
summons required respondents to answer Ruch’s complaint within 20 days to avoid a
default judgment.
Respondents did not answer, and at the same time that Ruch filed her complaint
with the district court, she also filed an affidavit of no answer. On March 24, 2014, Ruch
obtained a default judgment in the amount of $74,607. On November 7, 2014,
respondents moved to vacate the default judgment, alleging that they were not properly
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served and that Osterholt had only recently discovered the judgment against him and
Apomix after checking his credit report.
In a December 23, 2014 order, the district court granted respondents’ motion to
vacate. It reasoned that, although Ruch had complied with California’s rule for substitute
service, she had not complied with Minnesota’s service rules.1 This appeal followed.
DECISION
Ruch contends that the district court erred by vacating the default judgment. She
argues that the substitute service here was sufficient to confer personal jurisdiction under
Minnesota’s long-arm statute because it constituted sufficient service in the state where
the substitute service was completed. Respondents argue that the district court correctly
determined that service was insufficient because it did not comply with Minnesota law.
A party may be granted relief from a judgment if the judgment is void. Minn. R.
Civ. P. 60.02(d). A judgment is void if the issuing court lacked personal jurisdiction over
the parties due to failure of service. Bode v. Minn. Dep’t of Nat. Res., 594 N.W.2d 257,
261 (Minn. App. 1999), aff’d, 612 N.W.2d 862 (Minn. 2000). Unlike the other
provisions of rule 60.02, the question of whether to vacate a void judgment involves no
discretion on the part of the district court; a void judgment must be set aside. Comm’r of
Nat. Res. v. Nicollet Cty. Pub. Water/Wetlands Hearings Unit, 633 N.W.2d 25, 31 (Minn.
App. 2001), review denied (Minn. Nov. 13, 2001).
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Following the district court’s vacation of the default judgment, respondents filed their
answer on January 7, 2015.
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“Whether service of process was effective, and personal jurisdiction therefore
exists, is a question of law that we review de novo.” Shamrock Dev., Inc. v. Smith, 754
N.W.2d 377, 382 (Minn. 2008). In conducting this review, we “apply the facts as found
by the district court unless those factual findings are clearly erroneous.” Id. Service of
process in a manner not specifically authorized by rule or statute is ineffective. Lundgren
v. Green, 592 N.W.2d 888, 890 (Minn. App. 1999), review denied (Minn. July 28, 1999).
Personal service upon an individual within Minnesota may be made “by delivering
a copy [of the summons] to the individual personally or by leaving a copy at the
individual’s usual place of abode with some person of suitable age and discretion then
residing therein.” Minn. R. Civ. P. 4.03(a). Personal service upon a limited liability
company may be made by delivering a copy of the summons to a “registered agent,” a
manager, or the secretary of state. Minn. Stat. § 322B.876, subd. 1 (2014). Personal
service of the summons may also be made outside the state. Minn. R. Civ. P. 4.04(b).
Minnesota’s long-arm statute provides for personal jurisdiction, in certain circumstances,
over a foreign company or nonresident “in the same manner as if it were a domestic
[company] or the individual were a resident of this state.” See Minn. Stat. § 543.19,
subd. 1 (2014). One of these circumstances is when the nonresident “commits any act in
Minnesota causing injury.” Id., subd. 1(3). Because respondents’ alleged fraud and
conversion occurred in Minnesota, they were subject to personal jurisdiction in
Minnesota. When a nonresident is subject to personal jurisdiction based on the long-arm
statute, service of process “may be made by personally serving the summons upon the
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defendant outside this state with the same effect as though the summons had been
personally served within this state.” Id., subd. 2 (2014).
In Jacobson v. World of Computers, Inc., Minnesota plaintiffs personally served
an individual defendant in California by delivering the summons and complaint to the
defendant’s wife at the couple’s California home. 416 N.W.2d 845, 846 (Minn. App.
1987). The defendant received actual notice of the lawsuit and had sufficient minimum
contacts with Minnesota to otherwise confer personal jurisdiction. Id. On appeal, the
defendant argued that the service was insufficient because Minnesota’s long-arm statute
requires in-person service to a defendant himself. Id. This court disagreed. We noted
that substitute service under rule 4.03(a) is a form of personal service. Id. at 847.
Because the plaintiffs’ substitute service would have been proper if completed in
Minnesota, we held that the service was proper and comported with Minnesota’s long-
arm statute. Id.Ruch does not claim that her service of Osterholt was consistent with the
requirements of Minn. R. Civ. P. 4.03(a) for personal service upon an individual, or that
her service of Apomix was consistent with the requirements of Minn. Stat. § 322B.876
for personal service upon a limited liability company. Instead, she argues that her service
on Osterholt—as listed manager of Apomix—at Osterholt’s California address was
consistent with the requirements of Minn. R. Civ. P. 4.03(c). This argument is
unpersuasive for several reasons. First, rule 4.03(c) refers only to service upon a
corporation, and Apomix is a limited liability company, not a corporation. Second, even
if rule 4.03(c) applied, Ruch’s argument would fail. Under rule 4.03(c), service upon a
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corporation shall be made by delivering the summons “to an officer or managing agent”
of the corporation, “or to any other agent authorized expressly or impliedly . . . to receive
service of summons.” While Osterholt was the “managing agent” of Apomix, the process
server did not serve Osterholt. The process server served an employee at The UPS Store
where Osterholt held a commercial post office box. According to the affidavit of The
UPS Store employee, Osterholt signed an agreement when he purchased the box
indicating that employees of The UPS Store could accept documents on behalf of
Osterholt. But, even if the employee was an “agent” of Osterholt, he was not an “agent”
of Apomix under rule 4.03(c), and therefore the process server’s attempt to serve Apomix
was not consistent with this rule. Third, although the rules of civil procedure do not
specifically designate a method of service upon a limited liability company, section
322B.876 explicitly applies, but Ruch has made no argument that her service complied
with this section. Finally, we conclude that Ruch’s service upon an employee of The
UPS Store failed to meet the service requirements of section 322B.876 because the
employee was not a “registered agent” as that term is defined by statute. See Minn. Stat.
§ 5.36, subds. 2–3 (2014) (requiring a business entity that chooses to designate a
registered agent to do so in its formation document or by filing a statement with the
secretary of state, and requiring a business entity that changes its registered agent to do so
by filing a statement with the secretary of state).
Relying on Jacobson, Ruch next argues that substitute service that meets the due
process requirements in the state where substitute service is completed is sufficient to
confer personal jurisdiction under Minnesota’s long-arm statute. See id. at 846–47 (“The
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Minnesota Supreme Court has stated that Minnesota’s Long-Arm Statute should be
interpreted broadly to afford maximum protection to Minnesota residents.”). This
argument is unpersuasive because Jacobson is distinguishable from this case. The
Jacobson court interpreted the term “personal service” in the long-arm statute by looking
to other Minnesota law: rule 4.03. See id. In contrast, Ruch asks this court to interpret
the term “personal service” by looking to foreign law. These are two very different
propositions, and nothing in Jacobson supports Ruch’s argument.
Ruch also relies on Stonewall Ins. Co. v. Horak, 325 N.W.2d 134 (Minn. 1982).
In that case, the plaintiff served an individual defendant by certified mail to the
defendant’s army post office box in New York. Id. at 135. The defendant “received the
pleadings and personally signed the green return receipt card attached to the mailing
envelope. [He] then forwarded the pleadings to his insurer.” Id. The supreme court held
that this was sufficient service of process under Minnesota’s long-arm statute. Id. at 136.
The supreme court emphasized that the defendant had “actual notice” of the lawsuit and
concluded that “actual, timely notice should be equivalent to personal service in the
situation we have here.” Id. The court also affirmed the longstanding rule that, “where
service is made by mail and actually reaches the party to be served within the required
time, it is equivalent to personal service.” Id. at 135 (quotation omitted).
This case is distinguishable from Horak because there is no evidence that
respondents had actual notice of the lawsuit within the timeframe available to answer the
complaint. Ruch’s process server did not use certified mail to serve the summons and
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complaint, and there is no evidence that the summons and complaint actually reached
respondents within the 20-day period.
Ruch contends that, as a matter of public policy, this court should apply California
law to determine whether sufficient service occurred. She argues that, if this court fails
to do so, “efforts by Minnesota residents to recover damages would be thwarted by out of
state parties who use chicanery, like using private rented mail boxes as a shell game, to
avoid service of process.” She further argues that to “limit” service requirements to
Minnesota’s own service requirements would afford nonresident defendants “more due
process protection than the protections they are granted in the state in which they have
chosen to reside or do business.” These arguments are unpersuasive. We fail to see how
a Minnesota court that adheres to Minnesota’s own service requirements is “limit[ing]”
its service requirements. Ruch’s argument about the different protections afforded by
different states cuts both ways, as it is conceivable that some states have more onerous
service requirements than Minnesota. And, it would be unreasonable for Minnesota
parties and courts to subject themselves to the vicissitudes of other states’ service-of-
process rules. Finally, we note that “the task of extending existing law falls to the
supreme court or the legislature, but it does not fall to this court.” Tereault v. Palmer,
413 N.W.2d 283, 286 (Minn. App. 1987), review denied (Minn. Dec. 18, 1987).
We conclude that respondents were not properly served because Ruch did not
effectuate personal service or substitute service under Minnesota law. Accordingly, the
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default judgment was void for lack of personal jurisdiction, and the district court did not
err by vacating the default judgment.
Affirmed.
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