[¶ 1.] Jolene Grajczyk filed an action to establish paternity and child support. The circuit court dismissed, reasoning that there was insufficient substitute service of process and a lack of personal jurisdiction (insufficient minimum contacts) to assert jurisdiction over John Tasca, a nonresident putative father. On appeal, Grajczyk con
Facts and Procedural History
[¶ 2.] Grajczyk and Tasca were both stationed in Mississippi while serving in the United States Air Force. They formed a relationship that resulted in the birth of J.G. on October 14, 1986. 1 At the time of J.G.’s birth, Grajczyk was a resident of Texas, and Tasca was a resident of Florida. After moving numerous times, Grajczyk and J.G. established residency in South Dakota, where they have lived the past eight years. Tasca established residency in Indiana, where he has lived for at least eight years.
[¶ 3.] In February 1986, soon after Grajczyk discovered she was pregnant, she informed Tasca that he was the father. However, seven months later, she told Tasca that he was not the father. It was not until the fall of 1999, or spring of 2000, that Grajczyk again informed Tasca that he was J.G.’s father.
[¶ 4.] After a subsequent paternity test indicated that Tasca was the father, J.G. and Tasca began to form a relationship. They communicated over the telephone at least once a month, and on one occasion, Tasca sent money to South Dakota for J.G. to purchase an airplane ticket to visit him in Indiana. Tasca, however, has never been physically present in or had any other contact with South Dakota.
[¶ 5.] While J.G. and Tasca were forming a relationship, Grajczyk and Tasca began informal negotiations regarding past child support. In addition to these negotiations, Grajczyk filed a petition to establish paternity, child custody, and child support on July 15, 2004. 2 Grajczyk provided the summons and complaint to the sheriff of Bartholomew County, Indiana, for service on Tasca. The deputy sheriff that served the summons and complaint indicated on the shеriffs return that the documents were “Left with girlfriend.” The complaint was subsequently filed with the Grant County Clerk of Courts. 3
[¶ 6.] Tasca initially retained attorney William Gerdes to defend. Gerdes filed a notice of appearance of counsel on October 21, 2004, and informally requested an extension of time to file an answer. Thereafter, the negotiations for back child support continued. But, on December 1, 2004, Tasca retained new сounsel, Chad Nelson. On December 8, Nelson filed Tasca’s first
[¶ 7.] On appeal, Grajczyk raises the following issues:
1) Whether Tasca waived the 12(b)(2) and 12(b)(4) defenses of lack of personal jurisdiction and insufficient substitute service of process:
a)Because Tasca’s attorney “appeared” in the action by filing a notice of appearance of counsel, informally requesting a continuance, and engaging in preliminary discovery without raising these defenses;
b) Because Tasca’s first defensive pleading was an answer that only raised the failure to serve the summons; and
c) Because Tasca’s second defensive pleading was a motion to dismiss that only alleged a “lack of jurisdiction” without further specification;
2) If the 12(b) defenses were not waived:
a) Whether the substitute service of process was sufficient; and
b) Whether there were sufficient minimum contacts for the cirсuit court to assert personal jurisdiction over Tas-ca.
Standard of Review
[¶ 8.] This appeal raises jurisdictional issues. We review issues regarding a court’s jurisdiction as questions of law under the de novo standard of review. State
ex rel. LeCompte v. Keckler,
Analysis and Decision
1) Waiver of Personal Defenses
[¶ 9.] Personal jurisdiction and insufficient service of process are defenses that may be waived. SDCL 15 — 6—12(h)(1) provides that the defenses are waived if they are not included in a motion under the circumstances provided in SDCL 15-6-12(g) or in a responsive pleading (in this
Waiver by Appearance
[¶ 10.] Grajczyk argues that Tasca waived the right to assert either defense because his first attorney filed a notice of appearance of counsel, informally requested an extension of time to answer, and performed some informal discovery without raising the defenses. Grajczyk relies on SDCL 25-9B-201(2), a provision in the Uniform Interstate Family Support Act, which allows this state to assert jurisdiction over a nonresident in child support matters if “[t]he individual submits to the jurisdiction ... by entering a general appearance.” (Emphasis added.) Grajczyk contends that these activities by Tasca’s first attorney constituted a general appearance by Tasca. We disagree.
[¶ 11.] With respect to the notice of appearance of сounsel, we preliminarily note that the notice was not a motion or responsive pleading within the meaning of SDCL 15 — 6—12(h)(1). 8 Therefore, the failure to raise these 12(b) defenses in the attorney’s notice of appearance does not subject a party to the peril of a SDCL 15-6-12(g) and SDCL 15-6-12(h)(l) waiver.
[¶ 12.] Furthermore, in determining whether an appearance is a general appearance, “the test is the relief asked ... and ... the real question is whether there is a submission to the power of the court or an active invocation of its power on nonjurisdictional matters.”
Union Bond & Mortgage Co. v. Brown,
There is no basis in the rules and no reason in policy for а determination that the mere filing of an entirely neutral and innocuous piece of paper [a notice of appearance of counsel], which indicates no acknowledgment of the court’s authority, contains no request for the assistance of its process, and, most important, reflects no submission to its jurisdiction should nevertheless be given just that effect. Such a conclusion represents, we think, no lеss than the apotheosis of a meaningless technicality. It cannot be accepted in a judicial era which requires that, as far as is consistent with orderly procedure, the rights of parties be decided on the merits of their positions.
Public Gas Co. v. Weatherhead Co.,
[¶ 13.] Similarly, сounsel’s informal request for an extension of time to answer and the performance of informal discovery reflect no submission to the court’s jurisdiction. On the contrary, it is only through an extension of time to answer and preliminary discovery that counsel can evaluate whether 12(b) defenses are even available.
Cf. Crouch v. Friedman,
[¶ 14.] Consequently, we affirm the circuit court’s ruling that Tasca did not waive his service of process and personal jurisdiction defenses when he filed a notice of appearance of counsel, informally requested an extension of time to answer, and engaged in informal discovery.
Waiver of Defenses Not Raised in the First Defensive Pleading
[¶ 15.] Grajczyk argues that Tas-ca waived both defenses when he filed his answer. Grajczyk acknowledges Tasca’s answer raised the 12(b)(4) defense of insufficient service of the summons,
10
but
[¶ 16.] Grajczyk correctly points out that generally “[t]he objection must be specific аnd must point out in what manner the plaintiff has failed to satisfy the requirements of the service provision utilized.”
Photolab Corp.,
[¶ 17.] Grajczyk also contends that Tasca’s 12(b)(2) personal jurisdiction defense was waived because it was not raised in the answer. Tasca points out that service alone is not all that is necessary to establish jurisdiction over a nonresident. Rather, jurisdiction must, among other things, comply with federal due process requirements;
i.e.,
the defendant must “have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ”
See Frankenfeld v. Crompton Corp.,
[¶ 18.] In order to preserve this personal jurisdiction defense, Tasca had to raise it in his first significant defensive move, either by answer or motion. SDCL 15-6-12(g) & (h)(1); 5C Wright & Miller, Federal Practice and Procedure § 1391. In this case, Tasca’s first defensive move was his answer. But, that answer only raised the 12(b)(4) sufficiency of service defense. The answer did not assеrt the 12(b)(2) defense of lack of personal jurisdiction due to Tasca’s insufficient minimum contacts with this state.
[¶ 19.] In an analogous Eighth Circuit case, a defendant’s first significant defensive move was an answer that alleged a lack of personal jurisdiction.
Photolab Corp.,
[¶ 20.] Although the included and omitted defenses are reversed in this case, the Eighth Circuit’s holding is applicable to Tasca’s failure to raise the personal jurisdiction defense in his answer. Because Tasca failed to raise this defense involving minimum contacts in that pleading, he waived his personal jurisdiction defense under Rules 12(g) and (h). Thus, we reverse the circuit court on this issue.
2) Sufficiency of Service of Process
[¶ 21.] Having failed to preserve his objection to personal jurisdiction, but having preserved his objection to the sufficiency of service of process, we now consider whether the circuit court erred in
[¶ 22.] “The great weight of the case law is to the effect that the party on whose behalf service has been made has the burden of establishing its validity.” 5B Wright
&
Miller,
Federal Practice and Procedure
§ 1353, at 342. However, this initial burden only requires that the party establish a prima facie case: when a dеfendant moves to dismiss for insufficient service of process, the burden is on the plaintiff to establish a prima facie case that the service was proper.
Northrup King Co. v. Compania Productora Semillas Algodoneras Selectas, S.A.,
[¶ 23.] The statute governing the requirements fоr substitute service upon a member of a family with whom the defendant resides states, in pertinent part:
If the defendant cannot be found conveniently, service may be made by leaving a copy at his dwelling house in the presence of a member of his family over the age of fourteen years or if the defendant resides in the family of another, with a member of such age of the family with which he resides.
SDCL 15-6^f(e) (emphasis added). 11 If such service is performеd by a sheriff, the time, place, and manner must be shown in the sheriffs return. SDCL 15-6-4(g).
[¶ 24.] In this case, the sheriffs return indicates that the summons and complaint were served at 8:19 a.m. on September 17, 2004. The return further indicates that the service was made at the “Res.” 12 Finally, the return indicates that substitute service was made in the following manner: it was “Left with girlfriend,” and the person served was the “Girlfriend of Tasca.”
[¶ 25.] Tasca argues that this return of service did not establish sufficient substitutе service. The circuit court agreed, stating:
There is not enough evidence for the Court to determine who the Sheriff served — there was no name, description, or age of the individual served nor even that the individual lived at the residence where the alleged service took place. The Court cannot conclude from the evidence before it that substitute] service was made as required by statute.
The circuit сourt also noted that the deputy sheriff did not know who he served.
[¶ 26.] However, as previously noted, Grajezyk was only required to make an
[¶ 27.] Therefore, even if the sheriffs return alone may have been insufficient, it should have been considered together with the testimony of Grajezyk and J.G. Considering all the evidence, Grajezyk established a prima facie case that substitute service was.made on Tasca by leaving a copy of the summons and complaint with his girlfriend: an adult member of the family with whom Tasca was residing. Moreover, Tasca presented no evidence rebutting any aspect of Grajczyk’s prima facie case. Therefore, Grajczyk’s prima facie showing stood unrefuted and, thus, was sufficient to establish valid substitute service.
[¶ 28.] In summary, Tasca waived his personal jurisdiction defense by failing to raise it in his .first significant defensive рleading. Although Tasca did preserve his insufficient service of process defense by raising it in his answer, the substitute service was valid. For these reasons, we need not address issues (l)(c) and (2)(b).
[¶ 29.] Affirmed in part, reversed in part and remanded for trial.
Notes
. J.G. was conceived in Mississippi and born in Texas. Grajczyk and Tasca never married.
. The relevant statute of limitations for paternity and child support actions requires the commencement of the action before the child's eighteenth birthday.
Proceedings to establish paternity and enforce the obligation of the father may be brought at any time before the eighteenth birthday of the child.
SDCL 25-8-9.
.For reasons not disclosed, the summons was not filed with the complaint. The record reflects that there was a question regarding the initial failure to file the summons. However, on Decembеr 9, after a discussion between counsel, Grajczyk located the summons and filed it. Therefore, that initial failure to file the summons is not an issue in this appeal.
. SDCL 15 — 6—12(b) provides, in pertinent part:
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the оption of the pleader be made by motion:
(1) Lack of jurisdiction over the subject matter;
(2) Lack of jurisdiction over the person;
(3) Insufficiency of process;
(4) Insufficiency of service of process;
(5) Failure to state a claim upon which relief can be granted;
(6) Failure to join a party under § 15-6-19.
. Tasca’s motion to dismiss stated, in full:
COMES NOW the Defendant, who appears specially, and moves the Court to dismiss this matter for lack of jurisdiction.
Dated this 9th day of December, 2004.
. SDCL 15 — 6—12(h)(1) provides:
A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in § 15-6-12(g), or (B) if it is nеither made by motion under § 15-6-12 nor included in a responsive pleading or an amendment thereof permitted by § 15 — 6— 15(a) to be made as a matter of course.
. SDCL 15-6-12(g) provides:
A party who makes a motion under § 15 — 6— 12 may join with it any other motions herein provided for and then available to him. If a party makes a motion under § 15-6-12 but omits therefrom any defense or objection then available to him which § 15-6-12 permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision 15-6-12(h)(2) on any of the grounds there stated.
.The notice of appearance of counsel was not a motion because it sought no relief from the court. Furthermore, it was not a responsive pleading. SDCL 15-6-7(a) identifies the pleadings recognized by the Rules of Civil Procedure:
There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of § 15-6-14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.
(Emphasis added.)
. The notice merely provided:
TO PLAINTIFF JOLENE L. GRAJCZYK AND HER ATTORNEY GREGORY P. GRAJC-ZYK:
Please take notice that William D. Gerdes appears in this matter on behalf of Defendant John G. Tasca.
Dated October 20, 2004
. The answer provided:
COMES NOW the Defendant, who appears specially to contest the jurisdiction of this court as follows:
1. The Court is without jurisdiction to hear this matter because there has been no service of a summons upon the Defendant.
2. Without waiving jurisdiction, Defendant denies the Petition in its entirety.
3. Plaintiff's Petition fails to state a cause of action upon which relief can be granted. WHEREFORE, Defendant prays this Court dismiss this matter due to lack of jurisdiction and that it, alternatively, deny Plaintiff’s Petition in its entirety, аnd for such other and further relief as to the Court may seem just and proper in the premises.
(Emphasis added.)
. SDCL 15-6-4(f) provides:
Whenever a statute of this state provides for the service of a legal process upon a party not a resident of or found within the state, service shall be made under the circumstances and in the manner prescribed by the statute.
. The attorney's transmittal letter to the Bartholomew County Police Department indicated that Tasca’s residence was 3222 Rolling Knoll Ln, Columbus, IN 47201.