The Gables at the Reserve Homeowners Association, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1549

The Gables at the Reserve Homeowners Association,
Respondent,

vs.

Midwest Family Mutual Insurance Company,
Appellant.

Filed August 30, 2021
Reversed
Reilly, Judge

Hennepin County District Court
File No. 27-CV-20-8009

Alexander M. Jadin, Anthony A. Remick , Smith Jadin Johnson, PLLC, Bloomington,
Minnesota (for respondent)

Michael J. Tomsche, Kelly P. Magnus, To msche, Sonnesyn & Toms che, P.A., Golden
Valley, Minnesota (for appellant)

Considered and decided by Bryan, Presiding Judge; Re illy, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
Respondent served a summons and complaint on an office services employee of
appellant insurance company. Appellant m oved to dismiss the complaint because of
insufficiency of service of process under Minnesota Rule of Civil Procedure 4.03(c). The
district court found that the office services employee was a managing agent of appellant

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and denied appellant’s motion. Because we conclude that the district court erred when it
found that respondent served a managing agent, we reverse.
FACTS
Respondent Gables at the Reserve Homeowners Association (the homeowners
association) owns property in Plymouth, Minnesota, and appellant Midwest Family Mutual
Insurance Company (the insurance company) insured the property under a businessowners
policy. After the homeowners association re ported that the property sustained wind and
hail damage, the insurance company assigned an adjuster to inspect the claim. The parties
disputed the cause, scope and amount of loss.
In June 2019, the homeowners association tried to initiate a lawsuit against the
insurance company by sending a professional process server to th e insurance company’s
office in Des Moines, Iowa. The process server told an office services employee of the
insurance company that he had a delivery of documents. The employee asked the process
server if she needed to get someone authorized to accept the documents. The process server
stated that the employee could accept th e documents and handed her the summons and
complaint. The process serve r’s affidavit of service specif ied that the office services
employee was a “Managing Agent” of the insurance company and listed her title as “Office
Services.”
The insurance company moved to dismiss the homeowners association’s complaint
pursuant to Minn. R. Civ. P. 12.02(d) on the ground of insufficient service of process. The
district court determined that the homeowner s association properly served a managing
agent of the insurance company and denied the motion to dismiss. This appeal followed.

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DECISION
The insurance company argues that the homeowners association’s service of process
was insufficient under Minn. R. Civ. P. 4.03(c). A civil lawsuit begins “when the summons
is served upon [the] defendant.” Minn. R. Civ. P. 3.01(a). When a corporation is the
defendant, as it is here, the summons shall be served “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.” Minn. R. Civ. P. 4.03(c). When the corporation is
a nonresident insurance company, the summons may be served by “leaving a copy of the
process in the office of the commissioner, or by sending a copy of the process to the
commissioner by certified mail.” Minn. Stat. § 45.028, subd. 2 (2018), see also Minn. Stat.
§ 60A.19, subd. 3 (2018) (stating that before any insurance company may do business in
Minnesota, the corporation shall designate the commissioner as an agent authorized to
receive summons). Insufficient service of th e summons prevents a district court from
exercising personal jurisdiction over the defendant. In re Skyline Materials, Ltd. , 835
N.W.2d 472, 477-78 (Minn. 2013); see also Mercer v. Andersen , 715 N.W.2d 114, 118
(Minn. App. 2006). When service is insufficient, the claim must be dismissed. Id.
If a defendant believes that a plaintiff improperly served the summons, the
defendant can move the district court to di smiss the claim for insufficient service of
process. Minn. R. Civ. P. 12.02(d). Once a party challenges service of process, the plaintiff
must first “submit evidence of effective service” and then the defendant “has the burden of

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showing that the service was improper.”1 DeCook v. Olmsted Med. Ctr., Inc., 875 N.W.2d
263, 271 (Minn. 2016). Whether service of process was sufficient, and personal
jurisdiction therefore exists, is a question of law that appellate courts review de novo.
Shamrock Dev., Inc. v. Smith, 754 N.W.2d 377, 382 (Minn. 2008). In doing so, we “apply
the facts as found by the district court unl ess those findings are clearly erroneous.”
DeCook, 875 N.W.2d at 270.
The insurance company argues that the homeowners association failed to serve the
summons and complaint in comp liance with Minn. R. Civ. P. 4.03(c) because its office
services employee was not a managing agent. 2 An individual is a managing agent for
purpose of service of process if (1) the indi vidual has “the power to exercise independent
judgment and discretion to promote the business of the corporation,” or (2) the individual’s
position is of “sufficient rank or character to make it reas onably certain the corporation
would be apprised of the service.” Tullis v. Federated Mut. Ins. Co., 570 N.W.2d 309, 311
(Minn. 1997) (quotation omitted).
Here, there is no evidence that the employee f it into either of these categories. As
an office services employee, she accepted UPS and FedEx deliveries, sent outgoing mail,
and performed other administrative duties. She has never held a management position and
there is no record evidence th at she could make independent judgments on behalf of the

1 The district court found that “[o]nce service of process is challenged, the plaintiff has the
burden of proving its validity.” But it is th e defendant that has the ultimate burden of
showing invalidity of service.
2 It is undisputed that the office services employee was not an offi cer of the company or
another type of agent authorized or designated to receive service. Respondent did not serve
the commissioner as authorized by statute.

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insurance company. Even so, the district court found that the insurance company “entrusts
her to send and receive deliveries, which likely includes handling se nsitive or valuable
documents.” (Emphasis added.) This finding is clearly err oneous. There is no evidence
in the record that shows that the employee handled “sensitive or valuable documents” or
that she would timely deliver notice of service to the insurance company. To the contrary,
in her affidavit, the employee affirmed that she has “never been authorized to accept service
of any legal papers for or on behalf of [the insurance company].” And the employee asked
the process server if he needed her “to get someone [from] the company that was authorized
to accept such papers.”
The district court, however, determined th at “as an office se rvices representative
entrusted with the receipt of deliveries, th e character of [her] position made it reasonably
certain that [the insurance company] would be apprised of the service.” We disagree. The
employee’s job responsibilities are akin to the administrative assistant in Duncan who the
supreme court found not to be a managing agent. Duncan Elec. Co., Inc. v. Trans Data,
Inc., 325 N.W.2d 811, 812 (Minn. 1982) (concl uding that an administrative assistant was
not a managing agent); see also Miller v. A.N. Webber, Inc., 484 N.W.2d 420, 422 (Minn.
App. 1992) (concluding that a recep tionist was not a managing agent), review denied
(Minn. June 10, 1992); Winkel v. Eden Rehab. Treatment Facility, Inc., 433 N.W.2d 135,
140 (Minn. App. 1988) (concluding that a staff counselor was not a managing agent). The
record does not support the finding that the employee’s position made it reasonably certain
that the insurance company would be apprised of service. Even if the employee forwarded
the summons and complaint to an officer or managing agent, it doesn’t matter: a

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defendant’s actual knowledge of a lawsuit doe s not subject the defendant to personal
jurisdiction absent compliance w ith the service requirements in Minn. R. Civ. P. 4.03.
Thiele v. Stich, 425 N.W.2d 580, 584 (Minn. 1988).
The record does not support a finding that service was sufficient under any theory.
The employee was not an officer, managing agent, or any other person designated by
statute to receive service of the summons. See Minn. R. Civ. P. 4.03(c). Thus, the district
court clearly erred by finding service was proper.
We conclude that because the homeowners association failed to comply with the
requirements of Minn. R. Civ. P. 4.03(c), service of process was insufficient and as a matter
of law, the district court did not obtain pers onal jurisdiction over the insurance company.
The district court therefore erred by failing to grant the insurance company’s motion to
dismiss.
Reversed.