Beverly S. Lundberg, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0045

Beverly S. Lundberg,
Appellant,

vs.

Shelly J. Brown, et al.,
Respondents.

Filed July 29, 2019
Affirmed
Kirk, Judge*

Crow Wing County District Court
File No. 18-CV-18-2493

Beverly S. Lundberg, Baxter, Minnesota (pro se appellant)

Matthew D. Lutz, Eden Prairie, Minnesota (for respondent)

Considered and decided by Cochran, Presiding Judge; Johnson, Judge; and Kirk,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant challenges the dismissal of her complaint , arguing that the district court
erred by determining that it lacked subject-matter jurisdiction due to appellant’s failure to
perfect removal from conciliation court to district court. We affirm.
FACTS
In 2012, appellant Beverly Lundberg’s dog died from injuries allegedly sustained
during an interaction with respondents’ Shelly J. Brown and McKinl ey A. Brown’s dog .
In 2018, Lundberg filed a claim in conciliation court, which was dismissed and n otice of
entry of judgment was given on May 18, 2018.
On June 9, 2018, Lundberg sent, by certified mail, an affidavit of service to the
Browns. Lundberg signed the affidavit as the person who served th e Browns, despite the
fact that, as a party to the matter, she was not permitted to serve the Browns. Additionally,
Lundberg failed to include in the mailing the demand for removal intended to be served.
On June 11, 2018, Lundberg sent, by certified mail, an af fidavit of service to the
Browns. This time, M.B., a third party, signed as the person who served the Browns.
However, the Browns claimed that, again, the mailing included only a copy of the affidavit
of service and not a demand for removal. The same day, Lundberg filed a demand for
removal in the district court. But Lundberg did not file in conciliation court, and the
conciliation-court matter was not vacated.
On June 26, 2018, the Browns moved to dismiss L undberg’s complaint, asserting
that Lundberg failed to serve the demand for removal, and that the conciliation -court

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judgment was still enforceable because i t had not been vacated. On July 16, 2018, the
district court filed a scheduling order setting a hearing date for dispositive motions for
October 8, 2018.
On July 11, 2018, Lundberg moved for summary judgment. On October 2, 2018,
Lundberg filed an affidavit in support of her responsive motion, claiming that on June 11,
2018, she served a copy of the demand for removal . On October 5, 2018, M.B. filed an
affidavit claiming that on June 11, 2018, she served a copy of a demand for removal on the
Browns by first class mail.
As scheduled, the district court held a motion hearing on October 8, 2018. On
November 7, 2018, the district court filed an order granting the Browns’ motion to dismiss.
The district court found that the June 11, 2018 mailing did not contain the demand for
removal. The district court found that, although Lundberg and M.B. filed affidavits
alleging that the mailing contai ned the demand for removal, they were untimely. The
district court determined that “[t]here is no genuine issue of material fact as to wh ich
documents were served. The evidence in the record shows only the affidavits of service
were actually served on the [Browns], and, as such, the appeal was not perfected pursuant
to [rule] 521.” This appeal followed.
D E C I S I O N
A person may remove a conciliation-court matter to district court following a trial
and entry of an order for judgment. Minn. R. Gen. Prac. 521(a). In order to remove a case
to district court, the person must, within twenty days after notice of judgment (1) serve on
the opposing counsel or self -represented party by first -class mail or personal service a

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demand for removal to district court, and (2) file the original demand for removal with
proof of service with the court administrator. Minn. R. Gen. Prac. 521(b)(1)-(2); see also
Roehrdanz v. Brill, 682 N.W.2d 626, 631 (Minn. 2004) (service of process meets removal
requirement “by either personal service or service by first-class mail”). “When all removal
documents have been filed prope rly and all requisi te fees paid . . . removal is perfected,
and the court shall issue an order vacating the order for judgment in conciliation court . . . .”
Minn. R. Gen. Prac. 521(d).
A court does not have personal jurisdiction over a party wh o has not been properly
served. See Shamrock Dev., Inc. v. Smith , 754 N.W.2d 377, 382 (Minn. 2008). Whether
service of process was effective is a question of law reviewed de novo. Patterson v. Wu
Family Corp., 608 N.W.2d 863, 866 (Minn. 2000). Whether a district court has s ubject-
matter jurisdiction is also a legal question subject to de novo review. Humphrey v. $1109
in U.S. Currency , 539 N.W.2d 1, 2 (Minn. App. 1995), review denied (Minn. Dec. 20,
1995).
Here, the district court found that removal was not perfected because the Browns
were served only the affidavits of service and not the demand for removal. See Minn. R.
Gen. Prac. 521(b)(1) (stating that one of the requirements for perfecting removal is service
of the demand for removal). The district court relied on the Brown s’ affidavits and the
attachments of the mailings they received. The Browns asserted that the “complete
contents” in the envelopes they received held only the affidavit of service. Based on this
evidence, the Browns were not properly served, removal was not perfected, and the district
court did not have jurisdiction.

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Lundberg argues, however, that she filed affidavits showing that the June 11, 2018
mailings included the demand for removal. The district court acknowledged that Lundberg
provided such affidavits, but determined that, because the affidavits were not timely filed,
it would not consider them.
A party filing a dispositive motion must serve and file with the court administrator
documents, including notice of motion and motion, proposed order, affidavits and exhibits,
and memorandum of law at least 28 days prior to the hearing. Min n. R. Gen . Prac.
115.03(a). The responding party must serve and file with the court administrator
memorandum of law and supplementary affidavits and exhibits “at least 9 days prior to the
hearing.” Minn. R. Gen. Prac. 115.03(b). Enforcement of rule 115 is left to the discretion
of the district court. Hopkins by LaFontaine v. Empire Fire & Marine Ins. Co., 474 N.W.2d
209, 212 (Minn. App. 1991).
On June 26, 2018, the Browns moved to dismiss Lundberg’s complaint for lack of
subject-matter jurisdiction, pursuant to Minn. R. Civ. P. 12.02(a). On July 11, 2 018,
Lundberg moved for summary judgment. A rule-12 motion to dismiss and a motion for
summary judgment are dispositive motions. Minn. R. Gen. Prac. 115.01(a)(1). The district
court filed a scheduling order setting a dispositive-motion hearing for October 8, 2018. As
the moving party, the Browns had 28 days prior to October 8 to serve and file their
documents. As the responding party, Lundberg had 9 days prior to October 8 to serve and
file her documents. Lundberg’s affidavit was filed on October 2, 2 018, and M.B.’s was
filed on October 5, 2018. These filings, six and three days prior to the hearing, were not
timely. It was within the district court’ s discretion to enforce the timing requirements of

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rule 115. Thus, the district court properly exercised its discretion in declining to consider
the untimely affidavits. As such, the record supports the district court’s determination that
the Browns were not properly served with the demand for removal and that it therefore
lacked jurisdiction over the matter.
Affirmed.