951 N.W.2d 187
N.D.2020Background
- Oden was injured in Missouri in May 2010; WSI originally awarded ND workers’ compensation benefits but later suspended benefits after Oden pursued a Missouri claim.
- In Feb 2016 Oden settled his Missouri claim for $30,000; in March 2016 WSI reversed its award and demanded reimbursement of $62,452.91 under N.D.C.C. § 65‑05‑05.
- WSI mailed a March 2016 Notice of Decision (stating a 30‑day right to request reconsideration); Oden did not file reconsideration personally or through a North Dakota‑licensed attorney.
- WSI sued Oden in July 2018 to recover the overpayment; process was served in Missouri on Oden’s adult daughter at a Raymore address that Oden says he subleased.
- The district court denied Oden’s Rule 12(b)(5) motion to dismiss for insufficient service (finding WSI made a prima facie showing and Oden failed to rebut) and granted WSI summary judgment; Oden appealed.
Issues
| Issue | Plaintiff's Argument (WSI) | Defendant's Argument (Oden) | Held |
|---|---|---|---|
| Sufficiency of service of process | Return and process‑server affidavit show service at defendant’s usual abode; prima facie valid | Service was on daughter at a residence Oden subleased and did not occupy; server’s affidavit equivocal | Denial of dismissal affirmed — WSI made prima facie showing; Oden failed to rebut; no abuse in denying further discovery |
| Finality for failure to seek reconsideration | WSI mailed notice by regular mail; no timely ND‑licensed counsel requested reconsideration; decision became final and is enforceable | Oden didn’t receive notice or Missouri counsel’s response sufficed as reconsideration | SJ for WSI affirmed — presumption of mail delivery not rebutted; out‑of‑state counsel’s request inadequate under Carlson |
| Accord and satisfaction (Missouri settlement binding WSI) | WSI not a party to Missouri stipulation; no evidence WSI authorized counsel to bind it | Settlement names an insurer and attorney; constitutes accord and satisfaction extinguishing WSI’s claim | Denied — no genuine issue: no proof of agency/ostensible authority; WSI not bound by Missouri settlement |
| Judicial notice / Full Faith & Credit of later Missouri judgment | N/A (WSI opposed) | Oden asked court to take judicial notice of a 2019 Missouri judgment entered after district decision and assert preclusive effect | Request denied — Court refused to take mandatory judicial notice of subsequent judgment on appeal |
Key Cases Cited
- Monster Heavy Haulers, LLC v. Goliath Energy Servs., LLC, 883 N.W.2d 917 (N.D. 2016) (returns of service create prima facie evidence for jurisdiction/service)
- Franciere v. City of Mandan, 945 N.W.2d 251 (N.D. 2020) (standard for reviewing personal jurisdiction and prima facie burden on plaintiff)
- Blair v. City of Worcester, 522 F.3d 105 (1st Cir. 2008) (district court abused discretion by denying discovery/evidentiary hearing where agency for service was plausibly shown)
- Messier v. Bushman, 197 A.3d 882 (Vt. 2018) (where affidavits conflict on service, an evidentiary hearing is preferable)
- Carlson v. Workforce Safety & Ins., 765 N.W.2d 69 (N.D. 2009) (requests for reconsideration by nonresident attorneys who fail pro hac vice requirements are void)
- Plains Trucking, LLC v. Cresap, 932 N.W.2d 541 (N.D. 2019) (administrative decisions become final if statutory remedies are not timely pursued)