Lead Opinion
OPINION
In this appeal from the denial of a motion to dismiss for insufficiency of process, we consider the question of whether a summons and complaint signed by an attorney licensed outside the state of Minnesota are* legal nullities, or whether the defective signature may be cured. In the related conditional cross-appeal, we consider whether the district court erred in granting a motion to dismiss as to several defendants for insufficiency of service. Because we conclude that the Minnesota Rules of Civil Procedure afford a district court the discretion to allow an amend
I.
On January 22, 2010, Mya DeCook — the daughter of Jennifer and Ryan DeCook^— was born at Olmsted Medical Center (the Medical Center) in Rochester. In January 2014, Stephen Offutt and Patrick Thron-son, attorneys for the DeCooks, contacted the Medical Center’s risk management department to discuss how to serve process upon the Medical Center and the doctors and nurses involved in Mya’s birth in order to commence a medical malpractice suit.
At that time, the identity of Nurse Morrow was unknown, and she was listed on the case caption as “Jane Doe, R.N.” After Graham.determined that Jane Doe was in fact Nurse Morrow, Graham contacted Of-futt and inquired about revising the caption to add Morrow’s name. In that emaii, Graham also confirmed that she had obtained Morrow’s authorization for Graham to accept service of process, stating that Morrow “has given me her ok to accept service for her.”
Relying on Graham’s representations, the DeCooks’ attorneys attempted ,to serve the Medical,,Center and the six individual defendants by emailing a copy of the summons and complaint to Graham on January 14, 2014; Although the signature blocks in the summons and. complaint bore the printed names of both Offutt (licensed to practice in Minnesota) and Thronson (licensed only in Maryland), the documents were signed only by Thronson. Graham signed and returned an acceptance of service form on January 15, stating: “I, Barbara Graham, R.N., Compliance Office of Olmsted Medical Center, hereby admit and accept service_on behalf of’ the Medical Center and each of the six individual defendants.
On January 31, 2014, all defendants filed a Joint and Separate Motion to. Dismiss based on Minn. R, Civ. P. 12.02(b) (lack of personal jurisdiction), (c) (insufficient process), .and (d) (insufficient service of process). Thronson contacted the attorney who filed the.motion in an attempt to learn more, but was unsuccessful. Thronson and Offutt,. concerned by the motion, .sent copies of the summons and complaint (still signed only by Thronson) to the appropriate sheriffs offices' for personal, service upon the defendants; Sheriffs deputies personally served Nurse Pratt on February 24 and Nurse Hanson on February 27. Also on February 27, a sheriffs deputy attempted to serve the remaining defendants ;by leaving copies of.-the process at the Medical Center with an employee.
The defendants filed a memorandum in support of their motion to dismiss on March 4, 2014, arguing that the summons and complaint were void because they contained only Thronson’s signature, that the
The district court denied the motions to dismiss for insufficient process, reasoning that, although the summons and complaint were defective due to the lack of a Minnesota attorney’s signature, the Rules of Civil Procedure granted the court discretion to allow the summons and complaint to be cured by amendment, which the court allowed. The court also denied the motions to dismiss for insufficient service of process as to the Medical Center, Pratt, and Hanson, but -granted the motions with respect to the remaining defendants.
The Medical Center, Pratt, and Hanson appealed, arguing that the summons and complaint were legal nullities and that the court erred in allowing the DeCooks to amend them. The DeCooks filed a cross-appeal, arguing that the district court erred in concluding that the January 14 email to Graham did not constitute effective service upon the six' individual defendants. The court of appeals affirmed, De-Cook v. Olmsted Med. Ctr., No. A14-1180,
II.
We turn first to the issue of whether a summons and a complaint signed by an attorney not licensed in Minnesota are legal nullities. Answering this question requires us to interpret Minnesota’s Rules of Civil Procedure and applicable statutes. Such interpretation presents questions of law which we review de novo. Walsh v. U.S. Bank, N.A.,
A.
The Minnesota rules of court are clear on the need for pleadings such as a complaint to be signed by an attorney licensed in Minnesota. See Minn. R. Civ. P. 11.01; Minn. Gen. R. Prac. 5. A complaint lacking the signature of a Minnesota attorney is defective. The rules, also require a summons to be “subscribed by the plaintiff or by the plaintiffs attorney.” Minn. R. Civ.
B.
Citing our decision in Herrick v. Morrill,
Minnesota Rule of Civil Procedure 4.01 requires a summons to be “subscribed by the plaintiff or by the plaintiffs attorney.” “Subscribed” means “signed.” See The American Heritage Dictionary 1737 (5th ed.2011) (“to'sign (one’s name) at the end of a document_”); Black’s Law Dictionary 1655 (10th ed.2014) (containing four relevant definitions, all of which contemplate a written signature). Further, Rule 11.01 requires “[e]very pleading, written motion, and other similar document” to be “signed by at least one attorney of record in the attorney’s individual name” if the party -is represented.- Minn. R. Civ. P. 11.01. Even if a summons is not a “similar document” to a pleading or motion such that it is covered by Rule 11, no good reason exists for different rules to govern a summons as opposed to all other important court documents-. • We conclude that Rule 4.01’s subscription requirement means the summons must be signed. ' -
The DeCooks also argue that the complaint was not defective, as' Offutt ratified ThronsOn’s signature on the complaint by instructing Thronson to sign Offutt’s name for him. Assuming, again, that this argument is not forfeited, it fails. Offutt’s instruction — which was not followed — cannot constitute ratification, as the instruction occurred prior to the unauthorized act the DeCooks. now contend was ratified. See Anderson v. First Nat’l Bank of Pine City,
C.
■ Minnesota’s Rules of .Civil Procedure specifically grant district courts the authority “in [their] discretion and on such terms as [they] deem[ ] just” to “allow any summons or other process ... to be amended, unless- it clearly appears that substantial rights” would be prejudiced- by the amendment. Minn. R. Civ.í P. 4.07. This broad discretion encompasses the power to allow a signature defect on the summons to be -remedied. Further; Rule 11.01 provides that “[a]n unsigned document shall be stricken unless omission of the signature is •corrected promptly after being called to the attention of the attorney or party.” Minn. R. Civ. P. 11.01 (emphasis added).
Despite these applicable rules, the defendants and amicus argue that the sum
This position- is at odds with the policies underlying the Rules of Civil Procedure and the way we have previously addressed the amendment of defective summonses and co'mplaints. 'We have repeatedly interpreted the rules regarding the court’s. acquisition of jurisdiction by summons liberally “to avoid defeating an action merely because of technical and formal defects which could not reasonably have misled or prejudiced a defendant.” See Nelson v. Glenwood Hills Hosps.,
Further, in other circumstances in which personal jurisdiction would otherwise not exist because of defective process, we have held that “[i]f service of summons and complaint results in an intended defendant being fully informed as to the circumstances of the action, the court has acquired sufficient jurisdiction over that defendant, even though an amendment is necessary to correct” the defect, Nelson, 240 Minn. at 513,
The defendants place great reliance on our decision in Francis v. Knerr,
Finally, the defendants and amicus point to a variety of statutes and rules that forbid out-of-state attorneys from practic
However, our duties include not only regulating the profession but also “granting liberal relief when an innocent party would otherwise be prejudiced by his attorney’s neglect.” Nguyen v. Style Farm Mut. Auto. Ins. Co.,
D.
As the defective summons and complaint are not void, next we determine whether the district court abused its discretion in allowing them to be amended. Whether to allow a party to amend a summons and complaint is within the discretion of the district court, so we will review that decision for.an abuse of discretion. See Minn. R. Civ. P. 4.07; Nelson,
The defendants urge us to apply the test for amendment that we adopted in Save Our Creeks v. City of Brooklyn Park,
Neither test proposed by the parties applies smoothly to.the -type.of signature defect before us, and given the relative rarity of this particular defect, we see-no need to fashion a specific test- to guide district courts’ discretion. The rules already provide sufficient guidance. - Rule 11.01 requires that the defect be promptly corrected. Rule 4.07 only allows amendment of a summons if “it clearly appears that substantial rights ... [will not] be prejudiced.” Both Rule 4.07 and Rule 15.01, which governs amendment of pleadings, require a court to consider whether allowing the amendment will serve the ends of justice. The district court may consider these standards when it exercises its sound discretion in deciding whether to allow amendment.
In this case, the district court did not abuse its discretion in allowing the amendment to cure the signature. In accord with Rule 11.01, the defect was promptly corrected once it was brought to the attention of the DeCooks. Regarding the requirement's of Rule 4.07 and Rule 15.01, the lack of a Minnesota attorney’s signature on the complaint cannot be.said to have prejudiced the defendants’ ability to answer or undermined the ends of justice in any way.
III.
Because the defective summons and complaint were cured, we must address the conditional cross-appeal brought by the DeCooks.' The DeCooks argue that the district court erred in granting the motion to dismiss for insufficient service as to individual defendants Palmer, Perrohe, McKeon, and Morrow. The DeCooks contend that service was effective upon all of the defendants (including the Medical Center, Hanson, and Pratt) as of January 15, 2014 — the day the Medical Center’s compliance officer, Barbara Graham, returned the acceptance of service form on behalf of all of the defendants.
Whether service,of process was effective, and personal jurisdiction therefore exists, is.a question of law that this court reviews de novo. Shamrock Dev., Inc, v. Smith,
In this case, we will assume, without deciding, that the DeCooks’ method of serving the summons and complaint on Graham, absent an agreement with the defendants, did not comply with the requirements of Rule 4. Thus, we turn to the DeCooks’ argument that service was effective because it was made' pursuant to agreement. The DeCooks contend that the individual defendants consented to alternative, or informal, service; specifically, that they agreed to be served with the summons and complaint by email through Barbara Graham.
An agreement to forego formal service and be served in ways not provided for by rule is allowed in Minnesota. Indeed, a defendant may waive service altogether. See Chauncey v. Wass,
Minnesota law is clear: when service' of process is challenged, the plaintiff must submit evidence of effective service. Shamrock Dev., Inc.,
A plaintiffs obligation to submit evidence of service, and thereby trigger a defendant’s burden to prove insufficient service, is a low hurdle. For instance, in Holmen, we held that the sheriffs affidavit, containing the unsupported assertion that a 13-year old was a person of “suitable age and discretion” to accept substitute service, shifted the burden to the defendant to prove that service was.ineffective.
B.
In this case, the DeCooks did, in fact, submit evidence of service. Specifically, they submitted evidence of an agreement: that, to avoid being served personally, the individual defendants would forego formal service and, instead, be served by email through Graham.
The district court’s finding that “[tjhere is nothing in the record that, supports these individuals authorized Graham to accept service on their behalf’ is clearly erroneous. The district court record contains the following evidence: (1) emails from Graham stating that she was authorized to accept service by email on behalf of the defendants, particularly in light of hér explicit statement that she had spoken to one of the defendants and obtained authorization directly from that - defendant; (2) the affidavits of Graham and Offutt which, taken together, demonstrate that Graham represented that she had been authorized to accept service by the defendants themselves; (3) Graham’s emails and affidavit that establish that she is connected to the defendants by her position as the compliance officer at their workplace, which further supports a reasonable inference that she had actual authority from the defendants to accept service of process for them; and (4) the unequivocal acknowledgment of service signed by Graham, expressly on behalf of the defendants, upon receiving the emailed process. All of this is evidence that- there was an agreement for alternative service by email through Graham.
With the DeCooks having produced evidence of service by agreement, the burden of proving ineffective service is on the defendants. Shamrock,
C.
In spite of the defendants’ reticence to admit whether they received service, the dissent argues at length that the district court properly.dismissed based on principles of agency. The dissent is correct that apparent authority, standing alone, is not sufficient to bind a purported principal for service-of-process purposes. However, that basic statement of law misses .the point because, given that the DeCooks have produced, evidence of an agreement, the burden is on the individual defendants to prove, .that Graham’s authority to consent was not actual, but only apparent, and that service was therefore ineffective. Unlike defendants in the cases cited by the .dissent, these defendants submitted no affidavits or other, evidence .denying that Graham had actual authority to. accept ser,vice for them.. ■.
The dissent relies heavily on Tullis v. Federated Mutual Insurance Co., in which we concluded that service upon an occupational therapist was not sufficient to serve a corporation, in part because the therapist had “at most” only apparent authority.
IV..
In sum, we conclude* that the summons and complaint bearing only the signature of an attorney not licensed to practice in Minnesota were defective. That signature defect did not render the summons and complaint void, however, and the district court did not abuse its discretion in allowing them to be amended. Thus, we affirm in part the judgment of the court of appeals. , . .
We further conclude that the district court clearly erred in finding that the record contained no evidence that the defendants consented to-service.. The DeCoóks submitted evidence that the defendants had agreed to be served by email through the Medical Center’s compliance officer. Because the DeCooks’ evidence of service was wholly unrebutted, the defendants did not satisfy their burden to prove that service was insufficient. Accordingly,- we reverse in part the judgment of the court of appeals, and remand to the district court for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
Notes
. The statute of limitations for medical malpractice claims is 4 years. Minn.Stat. § 541.076(b) (2014). The record does not show, nor is it relevant to this appeal, when the DeCooks realized they might have a claim or when they retained attorneys to pursue it.
. The district court also denied the defendants' motion to dismiss for lack of personal jurisdiction, concluding that no legal argument separate from the insufficient process and insufficient service arguments supported the motion. • '
. The Medical Center does not argue on appeal that the emailed service of process upon it through Graham was insufficient.
. The remaining individual defendants, Palmer, Perrone, McKeon, and Morrow appeared in this appeal as respondents to the DeCooks’ appeal. For simplicity, we refer to the Medical Center and the individual defendants collectively as “the defendants.”
. Indeed, the defendants’ sole argument that the amendment prejudiced them is based on the loss of a statute of limitations defense. However, loss of-such a defense does not on
.The defendants contend that consent to informal service was not argued previously and, therefore, we should consider the argument forfeited. We disagree.' First, the DeCooks have argued at all points of this litigation that the defendants authorized Graham to accept service on their behalf via email. Further, the defendants argued at the district court that ‘‘[p]arties may vary the method of service by consent,” and connected that'argument to waiver of formal service. The DeCooks then renewed their argument that the defendants had waived formal service at the court of appeals. The service-by-consent argument the DeCooks present to us on appeal is not "different in kind” than the arguments presented to the district court and court of áp-peals, and it is not forfeited. See Jacobson v. $55,900 in U.S. Currency,
. For more than 150 years, Minnesota lawyers have accepted service for clients because they, as agents, have recéived authority from their principals, the clients, to agree to accept service. See Masterson v. Le Claire,
. Consistent with that custom and practice, recently our Rules of Civil Procedure were amended to reflect a defendant’s right to consent to alternative service methods such as email. Minn. R. Civ. P. 3.01(b); Minn. R. Civ. P, 3.01 advisory comm. cmt. — 2015 amendment. In the absence of agreement, of course, email service to commence an action was and is not allowed.
. Because we conclude that the district court erred in granting the defendants’ motion to
Concurrence Opinion
(concurring in part, dissenting in part).
I join in Part II of the court’s opinion, but disagree with Part III and the related portion of Part IV, and therefore respectfully dissent. In my view, Part III of the
L
On, January 8j .2014, .with a mere .2, weeks remaining on a. 4-year statute of limitations,
I need something back from you that affirms that your job/position at the [Medical Center] allows you to accept service and that you are in fact agreeing to accept' service. We will then e-mail you all the documents and send a hard copy to you in the mail. I may need a form filled out and signed.2
Offutt also requested that Graham help him identify-a particular “Jane Doe” nurse that the DeCooks also wished to- serve with process. The next day* Graham emailed Offutt, stating that if he was “looking for an in person-service,” then “we will need to do something different”; but “if by email, I am authorized to accept service for the [then-identified doctors and nurses].” - Five days later, upon learning the identity of the Jane Doe nurse, Graham informed Offutt: “[the Jane Doe nurse] has given me her ok to accept service for her.” That same day, Thronson attempted to serve Graham by e-mailing her the summons, complaint) and two copies of an acknowledgement form. The next day, Graham personally signed one of the acknowledgment, forms and returned it to Thronson. .
The record ■ provides no evidence that Offutt and Thronson attempted to personally contact the individual defendants to verify whether Graham could accept service or agree to alternative forms of service- on their behalf. Nevertheless, Thron-son asserted in an affidavit, “I was made
II.
The court relies upon the faulty premise that the representations of an alleged agent are prima facie evidence of authority to accept service of process. But settled agency law rejects- this notion, and. our rules of civil procedure provide that the plaintiff must establish authority to accept service of process through,the submission of a writing either signed by the defendant or- electronically submitted by the defendant. See Minn. R. Civ. P..3.01(b); Minn. R. Civ. P. 4,05. The DeCooks. did not submit either.
We review de novo whether service of process was effectual. Shamrock Dev., Inc. v. Smith,
It is well-settled that the ultimate'burden of proving insufficient service of process is upon the defendant. Holmen v. Miller,
Service of process may be accomplished, among other methods not relevant here, by personal service or by mail. Minn. R. Civ. P. 4.03(a) (personal service); Minn. R. Civ. P. 4.05 (service by mail). The De-Cooks have clearly failed to present, any evidence of personal service.
The DeCooks’ attempted service did not satisfy our rules of civil procedure, and was therefore ineffectual. The DeCooks failed to provide the district court with a valid acknowledgement of service. Specifically, the acknowledgment was not signed “by the person served,” as required under Rule 4.05. Therefore, any attempted service by the DeCooks “under [Rule 4.05]” was “ineffectual.” Minn. R. Civ. P. 4.05; see also Young v. Mt. Hawley Ins. Co.,
The court attempts to sidestep the requirements of Rule 4.05 by concluding that the individual defendants consented to informal service, which the court states is “allowed in Minnesota” due to an alleged “custom and practice”
A civil action is commenced against each defendant:
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(b) at the date of acknowledgement of service . if service is made by mail or other means consented to by the defendant either in writing or electronically.
(Emphasis added); see also Minn. R. Civ. P. 3.01 advisory comm. cmt. — 2015 (noting that the amendment “add[s] the" explicit provision for consent to service by any means”). This amendment was noi in effect on January 14, 20Í4, the date of the DeCooks’ attempted service and, therefore, does not apply- to this case. Even if it had been in effect, the DeCooks failed to comply with its. terms. Specifically,. the DeCooks did not produce a “writing” either signed or “electronically” submitted “by the defendant^]” indicating that they authorized Graham to accept service or agree to alternative forms of service for them. Minn. R. Civ. P. 3.01(b), By failing to do so, the DeCooks’ attempted service was ineffectual and a civil action was never commenced.
Additionally, the DeCooks failed to produce any evidence from the individual defendants establishing that they authorized Graham 'to accept service, in any form, on their behalf. The DeCooks could have produced an acknowledgment of service signed by “the person[s] served” in accordance with Rule 4.05; or. the DeCooks could have • produced a writing either signed or electronically submitted “by the defendants]” under new Rule ■ 3.01(b). But the DeCooks did not do so. Instead, the DeCooks offered oral evidence by Graham, the alleged agent, which does not satisfy their burden of production.
The court relies on Holmen v. Miller,
- Under Rule 4.03(c), we have long applied common law agency principles to service of . process upon corporations, which must act and receive service through its duly authorized agents. Derrick, 244 Minn, at 152,
The court points to Graham’s bald assertions that she was authorized to accept service by e-mail for the individual defendants, Graham’s position as the compliance officer for the Medical Center, and the acknowledgment of service that Graham personally signed. But, as the district court found, we have never said that this evidence is sufficient to establish authority to accept service of process on behalf of another. Rather, evidence to this effect, at most, creates apparent authority, and an agency relationship deemed sufficient for service of process must be based on actual authority, not apparent authority.
Tullis v. Federated Mutual Insurance Co., 570 N.W.2d 309 (Minn.1997), is on point. In that case we considered, under Rule 4.03(c), whether the purported agent served by the plaintiff — James Priebe— was a “managing agent” and therefore “one who reasonably could be expected to inform the corporation of the service.”
Wfe also considered whether Priebe was an agent impliedly authorized to receive service of process on the corporation’s be
The evidence adduced by the DeCooks in this case, taken as true, at best establishes that Graham had apparent authority to accept service for the individual defendants. But Tullis unambiguously holds that apparent authority is not, and cannot, be enough for effective service of process. Instead, what is required is actual authority established either by circumstantial proof gleaned from the course of dealing between the principal and agent, not the agent and a third party, or proof directly from the -principal. None of the evidence relied on by the court fits the bill and, therefore, the-district court’s finding that there is “nothing in the record” to support Graham’s authorization to accept service on behalf of the individual defendants was not clearly, erroneous. See Tullis, 570 N.W.2d at 313.
The court’s attempt to distinguish Tullis by suggesting that evidence of this nature is only insufficient if controverted by an opposing affidavit is unconvincing. First, the plaintiffs well-pleaded facts and evidence are taken as true, irrespective of whether a contradictory affidavit is submitted. See Tullis, 570 N.W.2d at 314; Winkel,
In Tullís, we acknowledged a “concern for fairness” when representations áre made by a purported agent and relied upon by the plaintiff to his or her serious detriment.
III.
In sum, the court’s opinion is not in accordance with our rules of civil procedure, old or new. The DeCooks failed to provide the district court with either a valid acknowledgment of service or a writing signed or electronically submitted by the individual defendants. More specifically, the DeCooks -failed to present sufficient evidence of effective service to meet their burden of production and shift the burden of proving otherwise to the individual defendants. On the contrary, the evidence produced by the DeCooks and relied on by -the-court, at best, evinces apparent authority, which we have categorically held insufficient to establish effective service of process. The court’s conclusion is an unwarranted upheaval of settled agency law. The district court correctly found “nothing in the record” to support Graham’s actual authority as an agent to receive service of process for the individual defendants. Accordingly, I conclude that service of process was ineffectual-..
. Minn.Stat. § 541.076 (2014)
. Offutt, however, never mailed "a hard . copy” of the process papers to Graham.
. See, e.g., In re J.M.T.,
. I acknowledge that attorneys sometimes accept service of process for their clients. But this court has never held that the mere existence of a ".custom” supports a finding of '.effective service under the rules of civil procedure, Nor'does this "custom” change the . fact that when a dispute arises, the parties must establish compliance with the rules of civil procedure. Notably, when a dispute arises, the plaintiff must show that the attorney was expressly or impliedly authorized to accept service on the ‘client's behalf. See Smith v. Spitzenberger,
. In other words, the court concludes that a conclusory, unsupported assertion in an affidavit is enough to create a prima facie case of service. Although we have not squarely addressed what constitutes a prima facie case in the context of effective service, we have done so in the related context of proving sufficient minimum contacts for purposes of effective service upon a foreign cotporation. Wuertz v. Garvey,
. In Holmen, we concluded that a process server’s subjective assessment that a 13-year old was a person of "suitable age and discretion,” affirmed in an affidavit, was enough under Rule 4.03(a) to shift the burden to the defendant to prove otherwise.'
Shamrock involved whether service by publication under Rule 4.04(a) was conclusively valid merely by submitting an affidavit containing an unsupported, yet "good-faith,” allegation that the defendant had left the state
. See e.g., Hockemeyer v. Pooler,
Concurrence Opinion
(concurring in part, dissenting in part).
■ I join in the concurrence and dissent of Justice Dietzen..
Concurrence Opinion
(concurring in part, dissenting in part).
I join in the concurrence and dissent of Justice Dietzen.