MCHS Red Wing, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1001

MCHS Red Wing,
Respondent,

vs.

Brittney N. Converse,
Appellant.

Filed May 3, 2021
Reversed
Hooten, Judge

Goodhue County District Court
File No. 25-CV-19-1249

Gregory E. Hanson, Lukas F. Belflower, D.S. Erickson & Associates, PLLC, Edina,
Minnesota (for respondent)

Carl Christensen, Christopher J. Wilcox, Christensen Law Office PLLC, Minneapolis,
Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Slieter, Judge; and Klaphake,
Judge.
SYLLABUS
A civil action is commenced, for the purposes of Minn. R. Civ. P. 5.04(a), when a
plaintiff ineffectively serves a defendant and the defendant effectively serves an answer on
the plaintiff that does not raise the affirmative defense of insufficient service of process.

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

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OPINION
HOOTEN, Judge
In this appeal from a grant of summary judgment, appellant asserts that the district
court erred, first, by denying her motion to dismiss based on respondent’s failure to file the
action within one year and respondent’s failure to prosecute and, second, by granting
summary judgment in favor of respondent. We conclude that a civil action is commenced,
for the purposes of Minn. R. Civ. P. 5.04(a), when a plaintiff ineffectively serves a
defendant and the defendant effectively serves an answer on the plaintiff that does not raise
the affirmative defense of insufficient service of process. Accordingly, because respondent
failed to file the action within one year of the date on which it was served with appellant’s
answer, the district court erred in its denial of appellant’s motion to dismiss with prejudice
under rule 5.04(a). We therefore reverse.
FACTS
This case arises out of the provision of health care goods and services by respondent
MCHS Red Wing to appellant Brittney N. Converse and her minor children. Respondent
sued appellant for breach of contract and unjust enrichment, alleging that it had provided
health care goods and services to appella nt pursuant to a contract between the parties and
that appellant had failed to pay for those goods and services. Respondent attempted to
serve appellant by mailing a copy of its summons and complaint to her on March 23, 2018.
The summons and complaint w ere accompanied by an acknowledgement -of-service form
pursuant to the then-current version of Minn. R. Civ. P. 4.05. Appellant did not complete
and return this acknowledgment -of-service form. Instead, appellant served an answer on

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respondent on May 2, 20 18, which did not raise the affirmative defense of insufficient
service of process. On June 2, 2018, appellant submitted discovery requests to respondent,
and the parties proceeded to engage in discovery and negotiation for nearly a year.
On May 30, 2019, appellant filed a motion to dismiss respondent’s complaint under
rule 5.04(a) on the ground of respondent’s failure to file the action with the district court
within one year of commencement. Appellant also moved to dismiss respondent’s
complaint on the ground of respondent’s failure to prosecute. Respondent personally
served appellant with its complaint on June 5, 2019 , and filed the action with the dist rict
court on June 18, 2019. On July 10, 2019, the district court denied appellant’s motion to
dismiss. Respondent subsequently moved for summary judgment, and the district court
awarded summary judgment in favor of re spondent on both of its claims. This appeal
follows.
ISSUE
Did the district court err in denying appellant’s motion to dismiss?
ANALYSIS
We interpret the Minnesota Rules of Civil Procedure de novo. Gams v. Houghton,
884 N.W.2d 611, 616 (Minn. 2016). “When interpreting court rules, we look first to the
plain language.” Id. (quotation omitted). “ If the language of a rule is plain and
unambiguous, we follow the rule’s plain language.” Id. “A rule is ambiguous only if the
language of the rule is subject to more than one reasonable interpretation.” Id.
If a rule is ambiguous, we must determine which reasonable interpretation of the
rule was intended. See id. In doing so, “[w] e interpret the words of a court rule in the

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sense in which they were understood and intended at the time the rule was promulgated.”
Id. (quotations omitted). Our examination is guided by Minnesota caselaw interpreting the
rules of civil procedure. See Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 602 (Minn. 2014).
We may also look to the history surrounding the promulgation of the rule, including the
report of a Minnesota Supreme Court task force, to ascertain the intent behind the rule. See
Gams, 884 N.W.2d at 618 n.6. “We do not read [the rules] in isolation but read them in
light of one another, interpreting them according to their purpose.” Mingen v. Mingen, 679
N.W.2d 724, 727 (Minn. 2004).
Minn. R. Civ. P. 5.04(a) provides: “Any action that is not filed with the court within
one year of commencement against any party is deemed dismissed with prejudice against
all parties unless the parties within that year sign a stipulation to extend the filing period.”
Minn. R. Civ. P. 3.01 provides plaintiffs with several means of commencing a civil action
against a defendant: the plaintiff may serve a summons on the defendant, request a waiver
of service, or deliver for service the summons to the sheriff in the county w here the
defendant resides. But rule 5.04(a) does not incorporate rule 3.01 by reference or otherwise
indicate that an action is commenced, for purposes of rule 5.04(a), only by the events
enumerated in rule 3.01. It would be reasonable to conclude that a civil action is
commenced only by those events, but it would also be reasonable to conclude that a civil
action is commenced, for the purposes of rule 5.04(a), by some other event or events. Rule
5.04(a) is therefore ambiguous, and we must determine whether there is any event not listed
in rule 3.01 by which an action is commenced for purposes of rule 5.04(a).

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Minn. R. Civ. P. 12 and Minnesota precedent lead us to conclude that there is some
other event by which an action is commenced for purposes of rule 5.04(a). If a plaintiff
ineffectively serves a defendant and the defendant effectively serves an answer on the
plaintiff and does not raise insufficient service of process as an affirmative defense, either
in the answer or in a separate motion made before answering, the defendant waives that
defense. Min n. R. Civ. P. 12.02, .08. By waiving the defense of insufficient service of
process in this way or by taking some action implicitly recognizing the jurisdiction of the
court, an improperly-served defendant submits to the personal jurisdiction of the district
court. See Patterson v. Wu Family Corp., 608 N.W.2d 863, 869 (Minn. 2000) ; Larson v.
New Richland Care Ctr. , 520 N.W.2d 480, 482 –83 (Minn. App. 1994). In such cases,
litigation proceeds in spite of the insufficiency of service of process. The only logical
conclusion that can be drawn from the fact that such cases proceed is that they were
commenced at some point in time, even though none of the events by which an action is
commenced under rule 3.01 occurred and none of these precedents specify by what other
event the actions were commenced.
Said another way, our precedents demonstrate that rule 3.01 does not provide an
exhaustive list of events by which an action is commenced. B ut these cases al so do not
resolve by what other event the actions involved were commenced. We are left, then, with
the task of determining by what event such an action is commenced for purposes of rule
5.04(a). To do so, we turn to the history surrounding the Minnesota Supreme Court’s
adoption of rule 5.04(a).

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The Minnesota Supreme Court adopted amendments to Minn. R. Civ. P. 5.04 on
February 4, 2013, and the rule became effective as amended on July 1, 2013. Order
Adopting Amendments to the Rules of Civil Procedure and General Rules of Practice
Relating to the Civil Justice Reform Task Force , No. ADM10-8051 (Minn. Feb. 4, 2013)
(“Order Amending Rule 5”); Gams, 884 N.W.2d at 614. The supreme court adopted this
amendment to rule 5.04 at the recommendation of the Minnesota Supreme Court Civil
Justice Reform Task Force. See Order Amending Rule 5 ; Gams, 884 N.W.2d at 614 ;
Recommendations of the Minnesota Supreme Court Civil Justice Reform Task Force , No.
ADM10-8051 ( Minn. Dec. 23, 2011) (“ Task Force Re commendations”). Th e supreme
court originally established this task force “to review the Civil Justice Forum Report and
civil justice reform initiatives undertaken in other jurisdictions and recommend to the court
changes that will facilitate more effective and efficient case processing.” Task Force
Recommendations at 4 . Chief among the task force’s objectives was to propose rule
changes that would address “excessive cost and delay that affect both administrative
efficiency and the accessibility of our civil justice system.” Id.
The adoption of rule 5.04(a) “altered a long -standing Minnesota practice that
permitted a party to commence an action simply by service of the summons upon the
defendant.” Gams, 884 N.W.2d at 614. Under this former practice, colloquially referred
to as hip-pocket service, “[f]iling the case with the district court was not required.” Id.
“Rule 5.04(a) amended this practice by requiring that all non-family cases be filed with the
district court, or a stipulation obtained extending the time for filing, within 1 year from the
commencement of the action.” Id.

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The report of the task force makes clear that the intent behind rule 5.04(a) was to
preserve the benefits of hip-pocket service while also addressing the issues it posed. Task
Force Recommendations at 21–22. The task force noted that the primary benefit of hip-
pocket service is that it “allows litigation to be resolved without taking up court resources,”
if the parties informally resolve the case between the point in time at which the defendant
is put on notice of the action and the point in time at which the case would otherwise be
filed. Id. at 21. On the other hand, the task force acknowledged that hip -pocket service
poses a number of issues. Id. For example, “many task force members believe [d] that
cases can only be effectively managed when a judge is assigned to the case, and that
managing cases in a way that is effective for courts and parties makes a difference in
reducing cost and delay.” Id. Such judicial case management is, of course , only possible
after an action is filed with the district court. The task force also recognized that “[t]here
are cases in which plaintiffs use the authority of the court to summon someone and then do
nothing, while some defendants, particularly poor consumers, do not have the resources to
bring a motion to dismiss.” Id. at 21–22. And “[w]hen cases eventually come into court
many years after service, everything is harder to accomplish.” Id. at 22.
Rule 5.04(a) was thus adopted to facilitate informal dispute resolution before a case
is filed while also facilitating effective case management, penalizing plaintiffs who serve
defendants and then take no further action, and achieving prompt resolution of disputes.
But if hip -pocket service is attempted but never effectively completed and neither party
has taken any further action, the plainti ff has no indication that the defendant is on notice
of the action, and informal dispute resolution cannot begin. At the same time, the defendant

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may in fact have received the summons and complaint and thereby been put on notice,
giving rise to all the sa me issues as effective hip-pocket service. Minn. R. Civ. P. 12 and
Minnesota precedents require the conclusion that such a case will be commenced if some
additional event occurs. See Patterson, 608 N.W.2d at 869; Larson, 520 N.W.2d at 482–
83. The question remains, though, what additional event must occur before such an action
is commenced for purposes of rule 5.04(a).
The answer that best serves the purposes of rule 5.04(a) is that such an action is
commenced, for purposes of rule 5.04(a), when it is clear that the defendant is on notice of
the action. And the fact of such notice is, in turn, conclusively established when the
defendant effectively serves an answer on the plaintiff. Accordingly, we now hold that a
civil action is commenced, for purposes of rule 5.04(a), when the plaintiff ineffectively
serves the defendant and the defendant effectively serves an answer on the plaintiff which
does not raise the affirmative defense of insufficient service of process.1
This interpretation of rule 5.04(a) bes t advances the purposes of t he rule. Service
of an answer —like the events by which an action is commenced under rule 3.01 —
objectively and irrefutably establishes that the defendant is on notice of the action. Treating
an action as having commenced with service of an answer therefore permits the parties to
engage in informal dispute resolution for up t o one year after the defendant ha s been put
on notice. But in many cases, attempts at informal dispute resolution can only proceed for

1 We do not now consider those cases in which the plaintiff ineffectively serves the
defendant and the defendant effectively se rves an answer on the plaintiff that raise s the
defense of insufficient service of process.

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so long until judicial case management becomes necessary. R equiring the plaintiff to file
the action within one year of service of an answer establishes an end-date for any informal
dispute resolution in which the parties might engage, supplying both an incentive to
negotiate in good faith and a fixed date on which judicial case management may begin.
And perhaps most importantly, treating an action as having commenced with service of an
answer helps to prevent the exact misuse of legal process that rule 5.04(a) was adopted, in
part, to avoid: service of a defendant that, objectively and irrefutably, puts the defendant
on notice, followed by a failure by the plaintiff to take further action.2
Here, respondent attempted to serve appellant by mailing a copy of its summons and
complaint to her on March 23, 2018.3 The summons and complaint were accompanied by
an acknowledgement-of-service form pursuant to the then-current version of Minn. R. Civ.
P. 4.05. Appellant did not complete and return this a cknowledgment-of-service form.
Instead, appellant served an answer on respondent on May 2, 2018, which did not raise the

2 The conclusion that an action is co mmenced by service of an answer that does not raise
the affirmative defense of insufficient service of process is also consistent with Eighth
Circuit precedent dealing with statutes of limitations. See, e.g. , MW Ag, Inc. v. New
Hampshire Ins. Co. , 107 F.3d 644, 647 (8th Cir. 1997) (applying Minnesota law to hold
that “where service of process is not effected upon the defendant, but where a defendant
waives that defect, an action is commenced for statute of limitations purposes on the date
upon which the action resulting in the waiver took place”).

3 Under the version of rules 3.01 and 4.05 in effect at this time, service by mail was
permitted and was deemed to be effective if the defendant returned an acknowledgement
of service form within the time the defendant was required to serve an answer. These rules
were amended effective July 1, 2018, and service of an individual defendant by mail is no
longer generally permitted. Order Promulgating Amendments to the Rules of Civil
Procedure, No. ADM04-8001 (Minn. Mar. 13, 2018); Minn. R. Civ. P. 4.05.

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affirmative defense of insufficient service of process. In light of our interpretation of rule
5.04(a), we conclude that the action was commenced at that time. Respondent did not file
the action with the district court until June 18, 2019, more than one year later. Accordingly,
respondent’s action is deemed dismissed with prejudice under rule 5.04(a), and the district
court erred in denying appellant’s motion to dismiss.4
DECISION
For the foregoing reasons, we conclude that a civil action is commenced, for the
purposes of Minn. R. Civ. P. 5.04(a), when a plaintiff ineffectively serves a defendant and
the defendant effectively serves an answer on the plaintiff that does not raise the defense
of insufficient service of process.5 The plaintiff must file the action with the district court
within one year of service of such an answer or the action will be deemed dismissed with
prejudice under rule 5.04(a). Here , respondent failed to file the action with the district
court within one year of being served with appellant’s answer, and t his matter is properly
deemed dismissed with p rejudice. We therefore reverse the district court’s denial of
appellant’s motion to dismiss.
Reversed.

4 Because we conclude that the district court erred in denying appellant’s motion to dismiss
under rule 5.04(a), we need not consider appellant’s arguments that the district court abused
its discretion in d enying her motion to dismiss for failure to prosecute or that it
subsequently erred in granting summary judgment in favor of respondent.

5 This opinion is limited solely to an interpretation of Minn. R. Civ. P. 5.04(a). We do not
now decide when an action is commenced other than for the purposes of rule 5.04(a).