Service of Process

The following is an article originally written for publication in the Winter 2004 Minnesota Trial Lawyers Association (MTLA) quarterly magazine, and then updated for a continuing legal education seminar in 2008. This article is aimed at providing personal injury legal practitioners with an overview of proper methods in Minnesota for serving a complaint to commence a lawsuit against the negligent party or other personal injury defendant. As these citations haven’t been updated in over a decade, you should verify the citations yourself for accuracy.

Effectuating Service of Process in Personal Injury Cases

References as to who may be served, and how, are littered throughout Minnesota statutes and rules. A search may yield no quick end. However, an understanding of some basic principals will enable you to easily organize your approach to service. Although by no means is this article exhaustive as to service of process, nor as to the statutes or rules on the matter, I will discuss the more generally used means of service in the practice of personal injury law.

First, it is important to know that an action is commenced with the service of a summons upon a defendant. However, that time may be shorter or longer depending on the method of service utilized. An action is commenced at the time personal service is made upon the defendant.[1] When service is made by mail, the action is not commenced until the date of acknowledgment of service.[2] Alternatively, if you are running up against the statute of limitations and are having difficulty effectuating personal service in time, you can buy yourself up to 60 additional days by delivering the summons to the sheriff. An action is commenced when the summons is delivered for service to the sheriff in the county where the defendant resides.[3] However, be aware that service is insufficient if the summons is not actually served on that defendant within 60 days following delivery to the sheriff, or the first publication accomplished within those 60 days.[4] In all cases, except service by publication, a copy of the complaint is required to be served with the summons.[5] Service of process may not be made on a legal holiday.[6]

Personal Service tends to be the most common form of service on an individual defendant, although personal service may be made on essentially any type of defendant, so long as it is made upon the proper representative of that defendant. Service on anyone other than the actual defendant is called substituted service. Service may not be made by a party to the action, nor by anyone under the age of 18.[7]

Within the State of Minnesota, in addition to personally delivering the summons to an individual, personal service may be made upon an individual by leaving it at the individual’s usual place of abode with a resident of suitable age and discretion.[8] The age of 14 (see below) is not by itself presumptive in establishing suitability of age and discretion for such substituted service.[9] This is largely a factual issue, with the burden on the moving party challenging service to overcome the facts presented in the certificate of service.[10] The burden of overcoming the certificate of service is by clear and convincing evidence.[11]

If the individual is confined to a state institution (prison, mental hospital, etc), the summons must also be served upon the CEO of the institution.[12] If the individual is under 14 years old (although good practice for all minors), the summons must also be served on the mother or father or other appropriate guardian.[13]

Service upon a partnership or association is made by delivering a copy to a member or the managing agent of the partnership or association, or other appropriate agent.[14] Service upon a corporation is made by delivering a copy to an officer or managing agent, or to any other agent authorized expressly or impliedly or designated by statute to receive service of summons.[15] For businesses, the agent upon whom lawful service can be made is typically on file with the Secretary of State or the Commissioner or Commerce. To serve the State, deliver the summons to the Attorney General, a Deputy Attorney General, or an Assistant Attorney General.[16]

Personal service upon public corporations can be made by delivering a copy to the following:[17]

County – Chair of the county board or county auditor

City, Village or Borough – CEO or Clerk

Town – Chair of the town board or Clerk

School District – Any member of the board or other governing body (not a superintendent as that person is not a board member as interpreted by this rule[18])

Any other public board or public body – Any member of the board or other governing body

Personal service outside the state has the same effect as published notice.[19]

All other forms of service discussed hereafter are various forms of substituted service. Each has specific statutory and regulatory requirements. Statutes controlling substituted service are to be literally construed and plaintiffs must strictly comply with them.[20]

Service by mail is a less expensive and less confrontational form of service, but has the disadvantage of time delay and requiring the cooperation of a defendant. If you’re tight on the statute of limitations, go for personal service. But if you have the luxury of time, service by mail can be especially effective if done shortly after a “sorry I have to sue you, but your insurance carrier is not being reasonable” type letter.

The rules on effective service by mail are explicit: mail a copy of the summons and complaint to the defendant, by first class mail with postage prepaid, together with two copies of a “notice and acknowledgment,” and a prepaid self-addressed return envelope.[21] The defendant must then sign and return one signed and dated original of the notice and acknowledgment, and put in an answer within 20 days thereof. Certified mail alone is not sufficient.

If the sender of the notice does not receive the signed acknowledgment back within the time defendant is required by the rules to serve an answer (20 days), service is insufficient.[22] However, the defendant can then be held personally responsible for the cost of personal service. Unless good cause is shown for not doing so, the court shall order the payment of the costs of personal service by the person served if such person does not complete and return the notice and acknowledgment of receipt of summons within the time allowed by these rules. If a letter to defense counsel does not result in reimbursement after you personally serve defendant, then bring a motion seeking reimbursement of the expense for personal service.

Service on a Deceased Defendant is made by serving the personal representative of the estate.[23]

Service of process on a foreign personal representative and a nonresident personal representative is made by mailing the summons by registered or certified mail, addressed to the last reasonably ascertainable address of the personal representative, and requesting a return receipt signed by the addressee only.[24] Service by this means may result in an extended time for the defendant to put in an answer.[25] Be wary of a possible impact on the statute of limitations with a deceased defendant.[26]

If a personal representative does not exist, a Special Administrator may be appointed, in the county where the deceased defendant died, with the limited power to accept service of process.[27] Typically, you can simply have a secretary or another attorney appointed to accept service and then turn the papers over to the decedent’s insurer.

Service by Publication can be used when a resident individual is absent from the state with an intend to defraud creditors or avoid service, or remains concealed within the state with similar intent.[28] To accomplish service by publication, application to the court should first be made, though is not required. All that is technically required is the filing of a complaint and Affidavit.[29] However, bringing a motion for permission to serve by publication is good practice. You would much rather have your Affidavit questioned at the time of application, with an opportunity to rectify the concerns, than after the statute of limitations has run when a defect could be fatal.

The required affidavit must state the basis for publication (ie:absent with intent to defraud), that defendant is not a resident or cannot be found, and that a copy of the summons has been mailed to the defendant at the defendant’s place of residence or that such residence is not known to the affiant.[30] It would also be wise to detail with specificity all diligent efforts made to locate the defendant or attempt service by other means.

After fulfillment of the above requirements, the summons (without the complaint) must be published[31] in a qualified newspaper,[32] for three consecutive weeks.[33] See the Secretary of State’s website for a listing of qualified newspapers.[34]

Service is considered completed 21 days after the first publication.[35]

If the defendant appears within 10 days after the completion of service by publication, you must serve the defendant or his attorney with a copy of the complaint within 5 days of their appearance.[36] The defendant then has at least 10 days to answer the complaint.[37]

Service by publication should really only be used as a last resort. If you serve by publication, and the defendant does not appear, you would proceed with a default judgement. However, if the defendant received no actual notice, he will be permitted to defend upon application to the court before judgment and for sufficient cause; and at any time within one year after judgment, on such terms as may be just.[38] If the defendant prevails, and any part of the judgment has been enforced, the court may order restitution to the defendant.[39]

Service on the Secretary of State applies to many types of businesses.[40] Although service can be made personally on the registered agent, officer, manager or general partner of the business, there are many occasions when service can instead be made on the Secretary of State. The Secretary of State can be statutorily appointed the legal agent for service through the acts of the business, such as a motor carrier using the highways to transport persons or property,[41] or a foreign corporation which withdraws from the state or whose certificate of authority to do business in Minnesota has been revoked or canceled.[42]

To effectuate service on the Secretary of State, you must determine the type of business you are attempting to serve. If a motor carrier, union, group, or association, the summons must be filed with the Secretary of State along with a $35 fee.[43] Additionally, you must send a copy of the summons to the defendant at the last known address within 10 days of filing with the Secretary of State.[44]

If serving a business corporation or certain other type of business, including dissolved, withdrawn, or revoked business entities, the summons must be filed with the Secretary of State along with a $35 fee.[45] If a foreign corporation, including dissolved, withdrawn, or revoked business entities, one copy of the summons must be served on the Secretary of State, along with the address to which service is to be sent to the corporation, with a $50 fee.[46] Review the applicable sections of the statute carefully to ensure you may use this means of service in your particular case.

Service on the Commissioner of Commerce is most commonly used for service on insurance companies. All foreign insurers must file a consent to service of process with the Commissioner of Commerce when applying for a license to do business in Minnesota.[47]

If an insurer has not filed such a consent, whether foreign or domestic, it may appoint the Commissioner of Commerce it’s agent for service by action or operation of statute. For example, the Commissioner is appointed the agent for service by any unauthorized foreign or alien insurers doing business in Minnesota.[48] Also, the Commissioner is appointed the agent for service by any unauthorized company who engages in any act of entering into a contract of insurance or annuity as an insurer or transacting insurance business in Minnesota.[49] And the Commissioner is appointed as the agent for service for any insurer that engages in conduct which is prohibited or made actionable.[50]

Proper service upon the Commissioner of Commerce is made by leaving the summons in the office of the commissioner, or by sending a copy of the summons to the commissioner by certified mail.[51] This service will not be effective unless you also send notice of the service and a copy of the summons, by certified mail, to the defendant at the last known address, and you file an affidavit of compliance with the court.[52]

Service on the Commissioner of Public Safety may be made for any automobile accident defendant who is a nonresident of this state or who is a resident absent from the state continuously for six months or more following an accident.[53]

Service is made by serving the Commissioner or filing a copy of the summons in the Commissioner’s office, along with a $20 fee. However, service is not sufficient unless notice of the service and a copy of the summons are also sent by mail to the defendant’s last known address within 10 days, and an affidavit of compliance is attached to the summons.[54]

Be aware that when service is made in this fashion, the court may order a continuance, not exceeding 90 days from the date of court filing, to allow the defendant a reasonable opportunity to defend the action.[55]

Although these are not the only means of serving process upon a defendant, they would be the most commonly used methods in a personal injury practice. To ensure you are following all of the requirements, I strongly recommend referring to the rules or statutes when utilizing any of these procedures. Once organized, service of process is not so complicated after all!

  • [1]Minnesota Rules of Civil Procedure 3.01(a)
  • [2]MN RCivPr 3.01(b)
  • [3]MN RCivPr 3.01(c)
  • [4]Id.
  • [5]MN RCivPr 3.02
  • [6]Minnesota Statute §645.44, Subd. 5. “Holiday” includes New Year’s Day, January 1; Martin Luther King’s Birthday, the third Monday in January; Washington’s and Lincoln’s Birthday, the third Monday in February; Memorial Day, the last Monday in May; Independence Day, July 4; Labor Day, the first Monday in September; Christopher Columbus Day, the second Monday in October; Veterans Day, November 11; Thanksgiving Day, the fourth Thursday in November; and Christmas Day, December 25; provided, when New Year’s Day, January 1; or Independence Day, July 4; or Veterans Day, November 11; or Christmas Day, December 25; falls on Sunday, the following day shall be a holiday and, provided, when New Year’s Day, January 1; or Independence Day, July 4; or Veterans Day, November 11; or Christmas Day, December 25; falls on Saturday, the preceding day shall be a holiday.
  • [7]MN RCivPr 4.02
  • [8]MN RCivPr 4.03(a)
  • [9] Holmen v. Miller, 206 N.W.2d 916 (Minn. 1973).
  • [10]Id.
  • [11]Peterson v. Eishen, 512 N.W.2d 338 (Minn. 1994).
  • [12]MN RCivPr 4.03(a)
  • [13]Id.
  • [14]MN RCivPr 4.03(b)
  • [15]MN RCivPr 4.03(c)
  • [16]MN RCivPr 4.03(d)
  • [17]MN RCivPr 4.03(e)
  • [18] Blaine v. Anoka‑Hennepin Independent School Dist. No. 11, 498 N.W.2d 309 (Minn. App. 1993).
  • [19]MN RCivPr 4.04(b); Minn. Stat. §543.19; Minn Stat. 303.13, Subd. 1
  • [20]Wood v. Martin, 328 N.W.2d 723, 726 (Minn.1983).
  • [21]MN RCivPr 4.05
  • [22]Id.
  • [23]MN RCivPr 25.01; Minn Stat. §573.01; Minn. Stat. §524.3-104; Minn. Stat. §524.3‑602
  • [24]Minn. Stat. §524.4‑303
  • [25]Id.
  • [26]Minn. Stat. §524.3-108
  • [27]Minn. Stat. §524.3-108; Minn. Stat. §524.1-201(36)
  • [28]MN RCivPr 4.04(a). Other conditions for publication exist within this rule, but are not typically applicable in personal injury matters.
  • [29]MN RCivPr 4.04(a)
  • [30]Id.
  • [31]Minn. Stat. §645.11
  • [32]M.S.A. §331A.01 Subd. 8; M.S.A. §331A.02.
  • [33]MN RCivPr 4.04(a); Op.Atty.Gen. 277‑A‑11, April 5, 1948.
  • [34]Secretary of State Listing: http://www.sos.state.mn.us/home/index.asp?page=98
  • [35]MN RCivPr 4.04(a)
  • [36]MN RCivPr 4.042
  • [37]Id.
  • [38]MN RCivPr 4.043
  • [39]Id.
  • [40]Minn. Stat. §5.25, Subd. 1: Entities governed by chapter 221(motor carriers), 302A(business corporations), 303(foreign corporations), 317A(nonprofit corporations), 321(partnerships), 322A(Limited partnerships), 322B(Limited liability companies), 330(auctioneers), 540(unions, groups, or associations), or 543(private domestic corporation)
  • [41]Minn. Stat. §5.25, Subd. 2; Minn. Stat. §221.67. Similar provisions apply to unions, groups, or associations transacting any acts, business, or activities within the state of Minnesota. Minn. Stat. §540.152.
  • [42]Minn. Stat. §5.25, Subd. 4. Once a foreign corporation withdraws from the state, service on the Secretary of State may only be based upon a liability or obligation incurred within this state or arising out of any business done in this state by the corporation before the issuance of a certificate of withdrawal. Minn. Stat. §303.16.
  • [43]Minn. Stat. §5.25, Subd. 2.
  • [44]Id.
  • [45]Minn. Stat. §5.25, Subd. 3 and 5.
  • [46]Minn. Stat. §5.25, Subd. 4 and 5.
  • [47]Minn. Stat. §60A.19 Subd.1(3) & Subd. 3
  • [48]Minn. Stat. §72A.37 Subd.1.
  • [49]Minn. Stat. §72A.43 subd. 1
  • [50]Minn. Stat. §45.028, subd. 1
  • [51]Minn. Stat. §45.028, subd. 2
  • [52]Id.
  • [53]Minn. Stat. §169.09 subd 16.
  • [54]Id.
  • [55]Minn. Stat. §169.09 subd 18.