812 N.W.2d 427
N.D.2012Background
- Langowski injured Altendorf on Aug. 21, 2004, and mailed both summons and complaint to Altendorf on Aug. 23, 2010.
- Roughrider attempted personal service on Aug. 19–20, 2010 but failed because Altendorf was away.
- Summons and complaint were affixed to Altendorf’s door on Aug. 20, 2010, at 6:04 p.m.; Altendorf did not discover them until Aug. 23.
- Langowski sent a copy by certified mail to Altendorf on Aug. 23, 2010, which Altendorf received on Aug. 25, 2010.
- The district court granted summary judgment for Altendorf, ruling the action did not begin within six years because service was not complete until Aug. 25, 2010.
- Court applied ND rules to compute the six-year period and concluded mailing alone did not begin the action within the limitations period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does an action begin for statute purposes under Rule 4(d)(2)(A) mail service? | Langowski claims beginning on Aug. 23, 2010 (mailing) | Altendorf contends beginning on Aug. 25, 2010 (delivery/signature) | Action began on Aug. 25, 2010 (delivery) per Rule 4(d)(2)(A)(v) interpretation. |
| Is service under Rule 4(d)(2)(A)(v) complete at mailing or upon actual delivery/refusal? | Mailing constitutes delivery. | Delivery/signature is required for completion. | Service complete at actual delivery or refused delivery, not at mailing. |
| Do ND time-computation rules toll or restart the statute when mailing occurs near expiration? | Mailing date should control. | Delivery date controls; timing calculated under 6(a) and 1-02-15. | The date of delivery controls for completion; August 23–25 window not met within six-year limit. |
Key Cases Cited
- Sanderson v. Walsh County, 712 N.W.2d 842 (ND 2006) (delivery complete under Rule 4(d)(2)(A) requires actual delivery or refused delivery)
- American Family Ins. v. Waupaca Elevator Co., Inc., 809 N.W.2d 337 (ND 2012) (explanatory note supports interpretation of service timing)
- Long v. Jaszczak, 688 N.W.2d 173 (ND 2004) (statute computation acknowledges time starts after event; weekend/holiday rules apply)
- Dundee Mut. Ins. Co. v. Balvitsch, 540 N.W.2d 609 (ND 1995) (statutes harmonized; time-computation guidance)
- Comstock Construction, Inc. v. Sheyenne Disposal, Inc., 651 N.W.2d 656 (ND 2002) (delivery under Rule 4 must be to designated officials)