Interest of T.H.
2012 ND 38
| N.D. | 2012Background
- Langowski sues Altendorf for injuries from a 2004 collision in North Dakota.
- Statute provides a six-year window; the period ended August 23, 2010, after considering holidays and weekends.
- Langowski mailed the summons and complaint to Altendorf on August 18–23, 2010 for service by August 21, 2010.
- Roughrider attempted service on August 19–20, 2010 but Altendorf was away; service ultimately left on Altendorf’s door August 20, 2010.
- Altendorf discovered the summons August 23, 2010; Langowski also sent a certified mail copy on August 23, received August 25, 2010.
- District court held service incomplete until Altendorf signed for delivery on August 25, 2010, beyond the six-year limit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does service commence the six-year limit? | Langowski: mailing began the period on Aug. 23, 2010. | Altendorf: service completes only upon delivery/receipt. | Service complete on delivery/receipt; mailing alone did not begin the period. |
| Is service by mail under Rule 4(d)(2)(A)(v) complete at delivery, not mailing? | Delivery occurs when mailed with signed receipt; timing fixed by mailing date. | Delivery must occur to complete service; mailing alone insufficient. | Service complete at actual delivery or refused delivery, not at mailing. |
| Did Langowski begin the action within six years by mailing on Aug. 23, 2010? | Mailing started the clock within the six-year window. | Clock started only upon delivery to Altendorf. | No; not timely begun since delivery occurred after statute expiration. |
| Does the interpretation conflict with prior tolling concepts under N.D.C.C. § 28-01-38 or other cases? | Delivery by mailing tolls or aligns with earlier tolling in some contexts. | Specific Rule 4(d)(2)(A)(v) governs; mailing does not toll. | Rule 4(d)(2)(A)(v) requires delivery; mailing alone does not toll. |
Key Cases Cited
- Langowski v. Altendorf, 2012 ND 34 (ND Supreme Court 2012) (central holding in this opinion on service and timing)
- Sanderson v. Walsh County, 712 N.W.2d 842 (ND 2006) (distinguishes mailing vs. delivery for Rule 4(d)(2))
- American Family Ins. v. Waupaca Elevator Co., Inc., 809 N.W.2d 337 (ND 2012) (explanatory note on Rule 6 timing harmonized with Rule 4)
- Long v. Jaszczak, 688 N.W.2d 173 (ND 2004) (calendar calculations of limitations periods)
- Dundee Mut. Ins. Co. v. Balvitsch, 540 N.W.2d 609 (ND 1995) (statutory/ticking clock principles in computation of time)
- Comstock Construction, Inc. v. Sheyenne Disposal, Inc., 651 N.W.2d 656 (ND 2002) (delivery vs. mailing distinctions in Rule 4)
- Elliot v. Drayton Pub. Sch. Dist. No. 19, 406 N.W.2d 655 (ND 1987) (service concepts relevant to timing)
- Erickson v. Scotsman, Inc., 456 N.W.2d 535 (ND 1990) (statutory purpose of limitations periods)