935 N.W.2d 530
N.D.2019Background
- On May 24, 2012, Hughes and Harley Rapp collided; Hughes alleged negligence by Rapp, Curt Olheiser, and Olheiser Masonry.
- Hughes filed a complaint in district court on May 22, 2018 (two days before the 6-year statute of limitations ran on May 24, 2018).
- Hughes mailed the summons and complaint to the Stark County Sheriff’s Department on May 22, 2018; the sheriff’s office did not receive the package until May 31, 2018.
- Defendants were actually served on June 1–2, 2018, after the statute of limitations expired.
- The district court dismissed the action as not timely commenced; on appeal Hughes argued mailing to the sheriff constituted delivery under N.D.C.C. § 28-01-38 and thus tolled/commenced the action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mailing a summons and complaint to the sheriff counts as "delivery" under N.D.C.C. § 28-01-38 (so the action was commenced within the SOL) | Mailing to the sheriff before the SOL with intent to have it served qualifies as delivery/attempt to commence the action | "Delivery" requires actual transfer into sheriff’s possession; placing in mail is not delivery | Mailing did not constitute delivery; delivery (and thus attempt) occurs when sheriff has possession — here May 31, after SOL expired, so action not commenced in time |
| Whether N.D.R.Civ.P. 5 (service by mailing complete on mailing) applies to service of summons/complaint | Rule 5's mailing-complete-upon-mailing supports treating Hughes’ mailing as effective | Rule 5 governs service of documents other than process; Rule 4 governs service of summons (process) | Rule 5 is inapplicable to service of process; Rule 4 and § 28-01-38 control, so mailing doesn't complete service of process |
| Whether filing the complaint in court alone commences the action under North Dakota law | Filing the complaint on May 22 might be enough to preserve the claim | Under N.D.R.Civ.P. 3, an action is commenced only by service of a summons, not by filing alone | Filing alone does not commence an action in North Dakota; service is required |
Key Cases Cited
- Long v. Jaszczak, 688 N.W.2d 173 (N.D. 2004) (delivery of summons to sheriff with intent to serve can commence action)
- Sanderson v. Walsh Cty., 712 N.W.2d 842 (N.D. 2006) (distinguishes "delivery" from mailing; certified mail not equivalent to delivery)
- Langowski v. Altendorf, 812 N.W.2d 427 (N.D. 2012) (service complete on actual delivery or refusal, not on mailing)
- Am. Family Ins. v. Waupaca Elevator Co., 809 N.W.2d 337 (N.D. 2012) (fax to sheriff can be delivery when sheriff receives it before SOL expires)
- B.D.H. v. Mickelson, 792 N.W.2d 169 (N.D. 2010) (filing a complaint does not commence an action under Rule 3)
- In re Estate of Nelson, 863 N.W.2d 521 (N.D. 2015) (summary-judgment standards apply to statute-of-limitations dismissal)