This opinion will be unpublished and may

not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Susan Landenberg, et al.,





Rainbow Foods Stores,




Filed July 11, 2000

Reversed and remanded

Lansing, Judge


Hennepin County District Court

File No. PI99014099


Joel A. Fisher, Smith Fisher, 400 MSB Center, 1401 West 76th Street, Richfield, MN 55423 (for respondents)


James K. Helling, Allison C. Swanson, Jardine, Logan & O’Brien, P.L.L.P., 2100 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101-2160 (for appellant)


            Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


Rainbow Foods Stores appeals from the district court’s denial of its motion to dismiss for failure to state a proper party defendant.  Rainbow contends that the court erred in permitting a relation-back amendment to name its successor corporation as a defendant because the Landenbergs did not properly serve either Rainbow or its successor.  We remand for the district court to determine whether by serving process on an employee at the Rainbow headquarters the Landenbergs effectively served process on Rainbow’s successor corporation. 


            Susan and Ronald Landenberg sued Rainbow Foods Stores for negligence after Susan Landenberg slipped and fell in a Rainbow store on August 8, 1993.  At that time, Rainbow was part of Gateway Foods, a Wisconsin corporation registered to do business in Minnesota.  Before merging with Gateway in December 1989, Rainbow was a Minnesota corporation.  In March 1996, Gateway Foods merged into Fleming Companies, an Oklahoma corporation registered to do business in Minnesota. 

            The Landenbergs, through a process server, served their complaint on June 11, 1999, on Scott Josephson at Rainbow’s office in Hopkins.  The parties dispute Josephson’s position at Rainbow.  In his service affidavit, the process server identified Josephson as a comptroller/treasurer of Rainbow.  In a supplemental affidavit, the process server simply indicated that he told the receptionist that he needed to serve an officer/agent of Rainbow, and that Josephson appeared and said that he could accept service.  Rainbow submitted an affidavit from Josephson indicating that he is an employee of Rainbow but is not an officer, manager, or partner and is not authorized to accept process on behalf of Rainbow or Fleming Companies.  Josephson stated that the process server only asked him for his last name before serving him. 

            In its answer, served well within the statute of limitations period, Rainbow asserted that it was not a legal or suable entity, that the court did not have personal jurisdiction over it, and that service of process was insufficient.  The Landenbergs did not amend or re-serve the complaint, even though they could have done so.

            On October 15, 1999, Rainbow served notice of a motion to dismiss scheduled for November 16, 1999.  By this time, the statute of limitations had run on the Landenbergs’ cause of action.  Rainbow characterized its motion as one to dismiss for failure to name a proper party defendant.  But the accompanying memorandum included the assertion that Rainbow had not been properly served.  Rainbow argued that it was a withdrawn corporation and thus could only be served through the secretary of state. 

            On November 2, 1999, the Landenbergs noticed a cross-motion to amend their complaint with relation back to name the correct party.  In their memorandum addressing both motions, the Landenbergs argued that personal service could be and was effected on Rainbow. 

            On November 11, 1999, Rainbow served a memorandum in opposition to the motion to amend, arguing again that personal service could not be effective on a withdrawn corporation and adding that, even if it could, Scott Josephson was not a person authorized to accept service.  The Landenbergs then served and filed a motion to strike the reply memorandum, asserting that it raised what amounted to a new rule-12 motion based on insufficiency of process. 

After oral argument, the district court granted the motion to strike Rainbow’s second memorandum, concluding that it did amount to a second rule-12 motion.  The court reasoned that without that memorandum, there was no service issue before it.  Thus, the court granted the motion to amend and relate back and denied the motion to dismiss.  Rainbow appeals from the denial of its motion to dismiss. 


            A party may immediately appeal, as a matter of right, from the denial of a motion to dismiss for lack of personal jurisdiction.  See Hunt v. Nevada State Bank, 285 Minn. 77, 88-89, 172 N.W.2d 292, 299-300 (1969).  Jurisdiction is a question of law that we review de novo.  Kellar v. Von Holtum, 605 N.W.2d 696, 700 (Minn. 2000).  Because the three orders are intricately related, we review together the district court’s grant of the motion to strike, grant of the motion to amend with relation back, and denial of the motion to dismiss.  See Minn. R. Civ. App. P. 103.04 (court may “review any order affecting the order from which the appeal is taken * * * [and] any other matter as the interest of justice may require”). 

            We note at the outset that Rainbow’s second memorandum did not constitute a new rule-12 motion.  Although the memorandum responded to the motion to amend, it was, in effect, a timely and permissible reply memorandum in support of the initial motion to dismiss.  See Minn. R. Gen. Pract. 115.03(c) (reply memorandum in support of dispositive motion must be served at least three days before hearing date).  The memorandum complied with the requirement that no new legal or factual issues be raised except in response to those raised by a response memorandum of the opposing party.  Id.  It complied because in the first memorandum, supporting Rainbow’s motion to dismiss, Rainbow argued that, as a withdrawn corporation, it could not be personally served but must be served through the secretary of state.  In their response, the Landenbergs argued that personal service could be and was effected on Rainbow through service on Josephson.  Only at that point did it become necessary for Rainbow to argue, in the alternative, that even if it could be personally served, Josephson was not authorized to accept such service.  Rainbow’s reply memorandum was timely and permissibly raised the issue of service.  But even without the reply memorandum, Rainbow sufficiently raised the service issue in its initial memorandum to require the court to determine if service was proper before allowing the relation-back amendment.

The primary issue, which we now address, is whether the district court properly denied Rainbow’s motion to dismiss.  Whether the court properly denied Rainbow’s motion to dismiss, in turn, depends on whether the court properly granted the Landenbergs’ motion to amend and relate back.  Absent that amendment, the only named defendant in this action is Rainbow, which ceased to exist in 1989.  Gateway Foods was the surviving corporation when Rainbow merged into Gateway Foods in 1989, and Gateway took on all of Rainbow’s liabilities.  See Minn. Stat. § 302A.641(b), (c) (1998) (when merger becomes effective, separate existence of constituent corporation ceases and surviving corporation assumes duties and liabilities of merged corporation).  When Gateway subsequently merged into Fleming, Fleming survived and took on all liabilities.  It is unclear whether nonsurviving constituents of a merger are subject to Minnesota Statutes section 300.59 (1998), which provides that “a corporation whose existence terminates by limitation, forfeiture or otherwise continues for three years after the termination date” for the purpose of defending actions.  But even assuming that section 300.59 applies, Rainbow’s continuation period would have ended in 1992.  Thus, without the relation-back amendment to include Fleming as a defendant, the complaint names only a nonexistent defendant and dismissal for lack of jurisdiction would be appropriate. 

            Whether the Landenbergs satisfied the requirements of Minnesota Rule of Civil Procedure 15.03 to have their amended complaint relate back is a question of law that this court reviews de novo.  Carlson v. Hennepin County, 479 N.W.2d 50, 53 (Minn. 1992).  When the amended pleadings change the party against whom the action is asserted, the amendment relates back if (1) the claim against the intended defendant arises out of the conduct or occurrence alleged in the original pleading, (2) the party to be added has received such notice of the institution of the action that it will not be prejudiced, (3) the intended party knows or should have known the action against the wrong party was a mistake and was meant to be brought against it, and (4) the intended party received notice and knew the action was meant to be against it within the period provided by law for commencing the action against it.  Minn. R. Civ. P. 15.03; see also Carlson, 479 N.W.2d at 54.  The rules governing amended pleadings should be liberally construed so that cases are decided on the merits.  Carlson, 479 N.W.2d at 54. 

Applying rule 15.03, the Minnesota courts have allowed relation-back amendments when the complaint contains a misnomer.  See Nelson v. Glenwood Hills Hosps., 240 Minn. 505, 514, 62 N.W.2d 73, 79 (1953) (allowing relation-back amendment based on misnomer); Johnson v. Soo Line R.R. Co., 463 N.W.2d 894, 896 (Minn. 1990) (summarizing misnomer law).  The courts also have allowed relation back when the wrong party is served, but that party shares an identity of interests with the correct defendant that puts the correct defendant on notice and prevents prejudice from the amended complaint.  See Carlson, 479 N.W.2d at 52-56 (allowing relation-back amendment based on identity of interests); Johnson, 463 N.W.2d at 898 (describing identity-of-interests). 

Even a liberal construction of rule 15.03, however, does not allow relation back to create a lawsuit when one has not been commenced.  Thus, in Regie de l’assurance Auto. du Quebec v. Jensen, 399 N.W.2d 85 (Minn. 1987), the supreme court refused to allow a relation-back amendment to a subrogation claim that should have been brought as a wrongful-death claim by an appointed trustee.  Id. at 92.  The court reasoned that the original action was a “legal nullity” and that “nothing existed to which the attempted amendment * * * could ‘relate back.’”  Id.; see also Ortiz v. Gavenda, 590 N.W.2d 119, 123 (Minn. 1999) (re-affirming holding of Regie); see generally James William Moore, Moore’s Federal Practice § 15.14[3] (1998) (party may not amend to create jurisdiction where there was none) (citing federal cases).  Similarly, a relation-back amendment should not be allowed when an action has not been commenced by proper service of process.  See Johnson, 463 N.W.2d at 898 (stating court’s jurisdiction not invoked when pleadings not served on any party).  If the original pleadings have not invoked the court’s jurisdiction over any defendant, then there is “no pending action to which an amendment [can] relate back.”  Johnson, 463 N.W.2d at 898; Lange v. Johnson, 295 Minn. 320, 324, 204 N.W.2d 205, 208 (1973) (judgment entered without valid service of process is void); see also Doerr v. Warner, 247 Minn. 98, 103, 76 N.W.2d 505, 511 (1956) (an action is commenced, and a court thereby acquires jurisdiction, when service is made on the defendant). 

Under these fundamental relation-back principles, the Landenbergs had to properly commence an action to which their amendment could relate back.  And, for an action to have been commenced, there had to be effective service of process on either Rainbow or Fleming Companies. 

The Landenbergs argue that they served Rainbow, and that Fleming knew or should have known that the complaint would have named Fleming but for the mistake about the corporate structure.  But the argument that Rainbow was served is unpersuasive.  Under Minnesota law, nonsurviving constituent organizations cease to exist after a merger.  Minn. Stat. § 302A.641(b).  And neither the rules nor the statutes permit service on defunct corporations.  Even assuming, arguendo, that a merged organization continues its corporate existence under Minn. Stat. § 300.59 for three years following its termination, that period ended in 1992. 

Rainbow argues that it could have been served as a withdrawn corporation, but that as a withdrawn corporation it could be served only through the secretary of state.  Rainbow’s argument, however, extends the definition of withdrawn corporation beyond its logical boundaries.  Rainbow not only withdrew its authority to do business in Minnesota, but also merged out of existence.  Treating a terminated corporation as withdrawn under the service statutes would defeat termination of corporate status and make meaningless the three-year continuation period of section 300.59.  A terminated corporation would be subject to service of process in perpetuity if it were defined to be a withdrawn corporation.  It is thus likely that the rules for service on withdrawn corporations apply only to foreign corporations that have withdrawn their registration to do business in Minnesota but have not terminated their corporate status.  See Minn. Stat. § 5.25, subd. 5(b) (1998) (addressing business entities that have “withdrawn [their requests] for authority to transact business in this state”). 

If Rainbow could properly be treated as a withdrawn corporation, service must be made through the secretary of state.  See Minn. Stat. § 5.25, subds. 3-5 (1998).  The Landenbergs correctly assert that Minn. Stat. § 5.25 does not preclude other methods of service.  See id., subd. 8 (1998).  But, on the facts of this case, no other methods of service apply to Rainbow.  Rainbow is no longer a corporation, and the rules governing service on a corporation do not apply.  Further, the supreme court has specifically rejected the argument that valid service of process can be made on former officers of a terminated corporation.  Kopio’s, Inc. v. Bridgeman Creameries, Inc., 248 Minn. 348, 356-57, 79 N.W.2d 921, 927 (1956) (service on former managing agent of dissolved corporation not valid service of process on that dissolved corporation). 

Because Rainbow could not have been served, the Landenbergs have commenced an action only if they effectively served Fleming Companies. The Minnesota Supreme Court has recognized that amendment for misnomer is appropriate when a plaintiff incorrectly designates a business entity but serves process on a person authorized to receive service on behalf of the correct defendant.  See Lange, 295 Minn. 320, 204 N.W.2d 205.  In Lange, the original complaint named Earl Johnson, d/b/a Lafayette Farm Service, and plaintiff served Earl Johnson.  Id. at 322, 204 N.W.2d at 207.  The correct name of the business entity was Lafayette Farm Services, Inc.  Id.  The supreme court held that a relation-back amendment for misnomer was appropriate because Johnson was the president and sole shareholder of the corporation and “thus was competent to receive service in the name of the corporation.”  Id. at 325, 204 N.W.2d at 209.  Similarly, if service on Josephson of a correctly captioned complaint would have effected valid service of process on Fleming, the amended complaint should relate back under rule 15.03. 

Personal service is effective on a corporation if the service is made on “an officer or managing agent, or [on] any other agent authorized expressly or impliedly * * * to receive service of summons.”  Minn. R. Civ. P. 4.03(c).  An employee is a managing agent if he has the “power to exercise independent judgment and discretion to promote the business of the corporation” or if his position is of a character that makes it “reasonably certain the corporation would be apprised of the service.”  Tullis v. Federated Mut. Ins. Co., 570 N.W.2d 309, 311 (Minn. 1997).  Implied authority has even broader application and exists when the character of the agency renders it “fair, reasonable, and just to imply an authority on the part of the agent to receive service.”  Id. at 313 (stating implied authority is actual authority circumstantially proved).  Of course, actual notice of an action will not cure a defect in process, and apparent authority is not sufficient to render an employee a proper party for service.  Id. at 311, 313.

On established facts, whether a summons and complaint is properly served is an issue of law that this court reviews de novo.  Amdahl v. Stonewall Ins. Co., 484 N.W.2d 811, 814 (Minn. App. 1992) (citing McBride v. Bitner, 310 N.W.2d 558, 563 (Minn. 1981)), review denied (Minn. July 16, 1992).  But in this case, the district court did not determine whether Josephson was authorized to receive service on behalf of Fleming.  This court generally will not decide issues the district court has not decided and, in any event, cannot decide issues when the record is not sufficiently developed to permit a decision.  See Harms v. Independent Sch. Dist. No. 300, 450 N.W.2d 571, 577 (Minn. 1990) (appellate court may decide issue not decided by trial court if issue disposes of entire controversy and neither party benefits from having district court decide the issue).

The record is not sufficiently developed for us to determine whether service on Josephson was valid service on Fleming.  It contains very little information on Josephson’s role at Rainbow and/or Fleming.  Because the record is insufficient, we remand for the district court’s determination of whether by serving Josephson, the Landenbergs properly served Fleming.  The record may be reopened to allow the parties to offer further evidence on this issue.  See McBride, 310 N.W.2d at 563 (remanding “with directions that the district court afford both parties the opportunity to furnish evidence” when record insufficient to decide service issue on appeal). 

If the court finds that service on Josephson effected valid service of process on Fleming, the court may grant a relation-back amendment to name Fleming as a defendant.  If service was not effected on Fleming, the court should deny the Landenbergs’ motion to amend with relation back and grant Rainbow’s motion to dismiss. 

Reversed and remanded.