JOSHUA LAPIN v. ZEETOGROUP, LLC
#30597-a-JMK
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
July 16, 2025
2025 S.D. 36
THE HONORABLE JAMES A. POWER Judge
JOSHUA LAPIN, Siоux Falls, South Dakota. Pro se plaintiff and appellant.
ABIGALE M. FARLEY of Cutler Law Firm, Sioux Falls, South Dakota. Attorneys for defendant and appellee.
#30597
KERN, Justice
[¶1.] Joshua Lapin, acting pro se, filed a complaint against Zeetogroup, LLC and “John Doe Sender” alleging 46 separate violations of
Factual and Procedural Background
[¶2.] Joshua Lapin was born in California, graduated from high school, and attended college in Colorado but did not finish his degree. In late 2020 or early 2021, Lapin became a self-described “full-time traveling ‘digital nomad‘, moving from place to place, generally internationally, in 30 day cycles, without a permanent residence in or out of the United States.” Near the beginning of his travels, Lаpin rented a room in an Airbnb in Rapid City from February 23 to March 23, 2021. During this time, Lapin completed the requirements to receive a South Dakota driver‘s license as a full-time traveler. Lapin surrendered his Colorado driver‘s license and rented a personal mailbox (PMB) in Sioux Falls, which served as a mail forwarding service. In an affidavit of residency submitted with his driver‘s license application, Lapin attested that he was “a South Dakota resident, and [he lived] in a RV/camper/hotel, or [he traveled] full time for work” and that “South Dakota [was his] state оf residence, and [he] will return after being absent.” Further, Lapin averred that he “[did] not stay, live in, or maintain a residence in any other state.” Lapin received a South Dakota driver‘s license and registered to vote in Minnehaha County. Both documents listed his Sioux Falls PMB address. Lapin left South Dakota on March 24, 2021, and did not return for nearly two years.
[¶3.] On March 30, 2022, Lapin filed a 46-count complaint in Minnehaha County against Zeetogroup and “John Doe Sender” alleging that between June 15 and July 25, 2021, he received 46 unsolicited commercial e-mails from “John Doe Sender” at
[¶4.] Lapin filed а motion for partial summary judgment on May 1, 2023, requesting that the circuit court resolve two “purely legal questions“: (1) whether Lapin was a “resident of this State” under
[¶5.] Zeetogroup filed a motion to dismiss on June 2, 2023, and for attorney fees and costs pursuant to
[¶6.] In support of its motion for summary judgment, Zeetogroup argued that the plain, ordinary meaning of “resident” requires physical presence in the state. Accordingly, Zeetogroup asserted that Lapin was not a “resident of this State” when the allegedly unlawful e-mails were sent because he was traveling the world as a “digital nomad” and was not physically present in South Dakota. This proposed interpretation, Zeetоgroup claimed, was consistent with a recent ruling from the United States District Court for the District of South Dakota in Lapin v. EverQuote, Inc., 4:22-CV-0458-KES, 2023 WL 2072059 (D.S.D. Feb. 17, 2023). There, under materially the same facts, the court concluded that Lapin was not a resident of South Dakota and dismissed Lapin‘s claims against EverQuote.3
[¶7.] In response, Lapin urged the circuit court to interpret “resident of this State” as requiring only legal residence. Relying on North Dakota caselaw, Lapin argued that his South Dakota driver‘s license
[¶8.] The circuit court held a hearing on Zeetogroup‘s motion for summary judgment on December 7, 2023. After hearing oral argument from both parties, the court ruled on the record, granting the motion. The circuit court reasoned that Lapin was not a resident of South Dakota during the applicable timeframe because the ordinary dictionary definition of “resident” “always has an element of physicality to it that you‘re physically dwelling in a particular place, and that it‘s not just a temporary abode like a hotel. There is some element of permanence.” Regarding Lapin‘s constitutional challenge, the circuit court held that
- Whether the circuit court erred by granting summary judgment to Zeetogroup on the basis that Lapin was not a “resident of this State” under
SDCL 37-24-41(14)(c) .
Analysis and Decision
[¶9.] “We review grants of summary judgment under the de novo standard of review.” Betty Jean Strom Tr. v. SCS Carbon Transport, LLC, 2024 S.D. 48, ¶ 21, 11 N.W.3d 71, 81 (quoting Bialota v. Lakota Lakes, LLC, 2024 S.D. 7, ¶ 15, 3 N.W.3d 454, 459). “Summary judgment is only appropriate when the court determines that the pleadings, depositiоns, answers to interrogatories, and admissions on file, together with any affidavits of the parties, reveal that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.” Id., 11 N.W.3d at 81–82 (quoting McGee v. Spencer Quarries, Inc., 2023 S.D. 66, ¶ 18, 1 N.W.3d 614, 620).
[¶10.] “Resolving an issue of statutory interpretation necessarily begins with an analysis of the statute‘s text.” In re Implicated Individual, 2021 S.D. 61, ¶ 16, 966 N.W.2d 578, 583 (citing Long v. State, 2017 S.D. 78, ¶ 12, 904 N.W.2d 358, 363). “When the language in a statute is clear, certain, and unambiguous, there is no reason for construction, and this Court‘s only function is to declare the meaning of the statute as clearly expressed.” Healy Ranch, Inc. v. Healy, 2022 S.D. 43, ¶ 29, 978 N.W.2d 786, 795–96 (citation omitted).
[¶11.]
No person may advertise in a commercial e-mail advertisement either sent from South Dakota or sent to a South Dakota electronic mail address under any of the following circumstances:
(1) The e-mail advertisement contains or is accompanied by a third-party‘s domain name without the permission of the third party; (2) The e-mail advertisement contains or is accompanied by falsified, misrepresented, or forged header information;
(3) The e-mail advertisement has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.
“South Dakota electronic mail address” is defined in
(a) An e-mail address furnished by an electronic mail service provider that sends bills for furnishing and maintaining that e-mail address to a mailing address in this state;
(b) An e-mail address ordinarily accessed from a computer located in this state; or
(c) An e-mail address furnished to a resident of this state[.]
[¶12.] Lapin does not argue that his e-mail address is a “South Dakota electronic mail address” under (a) or (b) above, instead asserting that his e-mail address qualifies under (c) because he is a resident of South Dakota based on his South Dakota driver‘s license and voter registration. Zeetogroup argues that Lapin was not a resident of South Dakota during the time material to this action because he was not physically present in the state and was instead travelling internationally as a “digital nomad.”
Plain and Ordinary Meaning
[¶13.] “In conducting statutory interpretation, we give words their plain meaning and effect, and read statutes as a whole.” Betty Jean Strom Tr., 2024 S.D. 48, ¶ 45, 11 N.W.3d at 88 (quoting State v. Long Soldier, 2023 S.D. 37, ¶ 11, 994 N.W.2d 212, 217). “Words used are to be understood in their ordinary sense” unless otherwise defined by statute.
[¶14.] It is well established that residence and domicile are distinct legal concepts. State ex. rel. Jealous of Him v. Mills, 2001 S.D. 65, ¶ 10, 627 N.W.2d 790, 793 (“Residence and domicile are not interchangeable concepts.” (citation omitted)); see also Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989) (“[O]ne can reside in one place but be domiciled in another.“) “‘Residence’ signifies living in [a] particular locality while ‘domicile’ means living in that locality with intent to make it a fixed and permanent home.” In re G.R.F., 1997 S.D. 112, ¶ 16 n.4, 569 N.W.2d 29, 33 n.4 (alteration in original) (citation omitted); see also Domicile, Black‘s Law Dictionary (12th ed. 2024) (defining “domicile” as “[t]he place at which a person has been physically prеsent and that the person regards as home; a person‘s true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.“).
[¶15.] With this distinction in mind, we conclude the Legislature‘s use of the term “resident” in
Parsley and Rush
[¶16.] The circuit court in rendering its opinion referenced Parsley v. Parsley, 2007 S.D. 58, 734 N.W.2d 813 and Rush v. Rush, 2015 S.D. 56, 866 N.W.2d 556, cases in which we were called upon to interpret the phrase “resident of this State” as used in
[I]t follows that the residence must be an actual residence as distinguished from a temporary abiding place, and, further than this, it must not be a residence solely for the purpose of procuring a divorce only. In Hinds v. Hinds, [1 Iowa 36 (1855)], it was held that a legal residence, not an actual residing alone, but such a residence as that, when a man leaves it temporarily on business, he has an intention of returning to, and which, when he has returned, becomes, and is, de facto and dе jure, his domicile.
2007 S.D. 58, ¶ 17, 734 N.W.2d at 818 (alterations in original) (quoting Snyder v. Snyder, 35 N.W.2d 32, 33–34 (Iowa 1948)). In Parsley, we affirmed the circuit court‘s determination that the husband was a resident of South Dakota at the time he filed for divorce because he designated South Dakota as his legal residence for tax purposes, acquired property in the state with the intent of building a home, obtained
[17.] The court in EverQuote also considered Parsley and Rush, referencing the first half of the definition provided in Snyder. The court оbserved that “[b]y distinguishing actual residence from a temporary abiding place, the South Dakota Supreme Court made clear that it views residence as being the location where someone lives.” EverQuote Inc., 2023 WL 2072059 at *10. The EverQuote court further noted that in both Parsley and Rush, this Court “found that the relevant individuals were residents for purposes of
[¶18.] Lapin argues that the circuit court erred by relying on Parsley and Rush becausе divorce statutes are strictly construed, but remedial statutes like
[¶19.] As support for his liberal/strict dichotomy, Lapin cites State ex rel. Johnson v. Cotton, 67 S.D. 63, 289 N.W. 71 (S.D. 1939) and the Iowa Supreme Court‘s decision in Root v. Toney, 841 N.W.2d 83 (Iowa 2013). However, both cases contemplate physical presence during the time period relevant to the action—in Root, physical rеsidence in the county at the time of filing for an order for protection and in Johnson, physical residence in the school district at the time the students wished to attend school. Here, while Lapin was physically present in South Dakota at a point in time, he was not physically present in the state during the relevant point in time—when he received the allegedly unlawful e-mails giving rise to his claims.
[¶20.] While we do not adopt the domicile standard established in Parsley for divorce jurisdiction, the distinction between actual residence and a temporary abiding place is instructive. Here, Lapin stayed at an Airbnb in South Dakota for 30 days in February and March of 2021. During this time, he did not get a job, enroll in school, sign a lease, purchase property, or take any other meaningful action suggesting an intent to maintain an actual residence in South Dakota. The address used for his driver‘s license application and voter registration was his Sioux Falls PMB address, where he did not live, and which simply served as a mail forwarding service. In the residency affidavit, Lapin averred that he intended to return to South Dakotа, but also that he was a full-time traveler which suggests that his actual intention was to leave the state to
Residency for Other Purposes
[¶21.] Lapin highlights that he and other full-time travelers are considered residents of South Dakota for many different purposes, including obtaining a driver‘s license, voting, and being summoned for jury duty.5 Lapin asserts that definitions of residency appearing elsewhere in the code should be applied here. In support of this argument, Lapin relies on
[¶22.]
[¶23.] The same can be said regarding Lapin‘s residency for purposes of SDCL chapter 32-12 governing driver‘s licenses. An application to receive a driver‘s license must include “the full legal name or any other name taken for lawful purposes, date of birth, social security number, sex, and current mailing address and residential address of the applicant[.]”
Equal Protection
[¶24.] Lapin argued below that “[a]ny durational residency requirement in excess of the 30 days [Lapin] spent from February-March 2021 in the AirBnb . . ., as a prerequisite to obtain the benefits and protections of this state enjoyed by more established, ‘old timer’ residents of the state, would amount to this court judicially taking upon itself to write in an un-legislated durational residency requirement[,]” and would be unconstitutional. In support of this position, Lapin cited Dunn v. Blumstein, in which the United States Supreme Court concluded that Tennessee‘s one-year durational residency requirement to register to vote burdened the constitutional right to travel and was not justified by a compelling state interest. 405 U.S. 330 (1972). The Court determined that “30 days appears to be an ample period of time for the State to complete whatever administrative tasks are necessary to prevent fraud—and a year, or three months, too much.” Id. at 348. Accordingly, Lapin argued that because he spent 30 days in South Dakota in February and March 2021, any additional required period of residency would violate the 30-day period accepted by the Supreme Court and would, therefore, be an unconstitutional infringement on Lapin‘s right to travel.
[¶25.] The circuit court, however, concluded that
[¶26.] Lapin does not challenge the circuit court‘s ruling regarding the durational residency requirement, but instead raises an equal protection challenge asserting that the circuit court erred by imposing a requirement that an individual must occupy a fixed dwelling such as an apartment or house to be considered a resident under
Summary Judgment
[¶27.] In light of the foregoing analysis, we must determine whether the circuit court appropriately granted summary judgment to Zeetogroup. Lapin agrees with the circuit court‘s finding that “[t]he material facts as it pertains to whether [Lapin] was a ‘resident of this state’ are not genuinely disputed by the parties.” The undisputed facts establish that Lapin stayed in an Airbnb for 30 days in February and March 2021, which was the first time he had been in South Dakota. While staying in the Airbnb, he completed the process to obtain a driver‘s license and register to vote in South Dakota. He established a PMB in Sioux Falls, which acted as a mail forwarding service. After 30 days, Lapin left South Dakota to travel nationally and internationally, and did not return until January 2023. Approximately three months after Lapin left South Dakota, he received the alleged spam e-mails that form the basis for this lawsuit. At that time, Lapin was not physically present in South Dakota, did not maintain a home in South Dakota, and did not work for a South Dakota employer or have any other meaningful contact with South Dakota. Based on these undisputed material facts, we conclude that Lapin was not a “resident of this State” as used in
[¶28.] JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN, Justices, concur.
KERN
Justice