Jon Sommervold v. Wal-Mart, Inc.
2013 U.S. App. LEXIS 4972
8th Cir.2013Background
- Sommervold injured August 2008 when a Wal-Mart toy exploded at Aberdeen, SD.
- Action filed in SD state court after SP time deadline neared and manufacturer was bankrupt.
- Wal-Mart removed to federal court and moved to dismiss for insufficient service of process under Rule 12(b)(5).
- SD law governs service since action was commenced in SD and served before removal.
- 2005 SD statute amended § 15-6-4(d)(1) to require service on a designated person in charge or at the entity’s SD office; prior substituted-service options were narrowed.
- Sommervold served Assistant Manager Hehn nine days before the statute of limitations expired; Hehn was not the person in charge per the statute; district court dismissed; on appeal the issue is whether service complied with the statute and whether substantial compliance applies post-amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service on Hehn satisfied § 15-6-4(d)(1) | Sommervold argues Hehn acted with ostensible authority to accept service. | Wal-Mart contends Hehn was not person in charge and not a valid recipient. | No; service did not strictly comply with § 15-6-4(d)(1). |
| Whether ostensible agency excuses noncompliance | Sommervold relies on ostensible agency to excuse strict compliance. | Wal-Mart argues ostensible agency cannot substitute for statute’s designated recipients. | Ostensible agency doctrine does not excuse noncompliance; cannot substitute for statutorily authorized recipients. |
| Whether substantial compliance applies post-2005 amendment | Sommervold cites Wagner to argue substantial compliance. | Post-2005 amendment limits to strict compliance; Wagner distinctions are narrowed. | Substantial compliance rejected; amendment curtailed, strict compliance required. |
| Whether dismissal was proper under Rule 12(b)(5) given service failure | Sommervold argues dismissal is improper if service could be cured. | Failure to comply with statute warrants dismissal; no cure under present facts. | Affirmed; dismissal appropriate for lack of proper service. |
Key Cases Cited
- Wagner v. Truesdell, 574 N.W.2d 627 (S.D. 1998) (substantial compliance limited to essential substance in rare cases)
- White Eagle v. City of Fort Pierre, 606 N.W.2d 926 (S.D. 2000) (strict compliance required where statute lists authorized recipients)
- R.B.O. v. Priests of the Sacred Heart, 807 N.W.2d 808 (S.D. 2011) (no substantial compliance when process directed to wrong recipient)
- Spade v. Branum, 643 N.W.2d 765 (S.D. 2002) (substantial compliance where personal service impossible; otherwise strict)
- Marshall v. Warwick, 155 F.3d 1027 (8th Cir. 1998) (rejects extending substantial compliance to substituted service under 15-6-4(e))