Brief Fact Summary.
In a suit for medical malpractice, Plaintiff served Defendant by mail twice but Defendant refused to acknowledge service. Plaintiff then had the Sheriff serve Defendant personally. Defendant moved for summary judgment because the statute of limitations had passed when the Sheriff received the summons and complaint.
Synopsis of Rule of Law.
In cases brought under diversity jurisdiction, state rules govern commencement of lawsuits while Federal rules govern service of process.
However, if the defendant does not waive service, service has not been effected.View Full Point of Law
Patricia Larsen (Plaintiff) got sick from a medication she received while at Mayo Medical Center (Defendant) in July 1996. In May 1998, Plaintiff filed a complaint against Defendant for medical malpractice. Twice in June 1998, she served Defendant by mail. Both times Defendant did not return the form acknowledging service of process by mail and refused to do so. In September 1998, Plaintiff mailed copies of the summons and complaint to the local Sheriff, who personally served Defendant. Defendant moved for summary judgment because the statute of limitations had passed.
Had the Defendant been properly served before the statute of limitations had passed?
No, because the Defendant did not acknowledge service of process by mail, the lawsuit did not commence until after the statute of limitations had passed.
The Court determined that Minn. R. Civ. P. 3.01 governs the commencement of this lawsuit, while Fed. R. Civ. P. 4 governs service of process. Under the Federal rules, service of process could not completed by mail unless the Defendant returned the form acknowledging waiver of personal service. Because Defendant was not properly served, under the Rule 3.01 the lawsuit did not commence until the Sheriff received the papers.