This opinion will
be unpublished and
may not be cited
except as provided by
Minn. Stat. §
480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF
City of Saint Paul,
University of Saint Thomas,
Filed June 20, 2006
File No. C6-05-2659
Margaret DiBlasio, 1954 Summit Avenue,
St. Paul, MN 55105 (pro se appellant)
Helen Murphy, 1440 Summit Avenue,
St. Paul, MN 55105 (pro se appellant)
Manuel J. Cervantes, St. Paul City Attorney, Eric D. Larson, Assistant
City Attorney, 550 City Hall and Court House, 15 West Kellogg Boulevard, St.
Paul, MN 55102 (for respondent City of Saint Paul)
Scott R. Strand, Robins, Kaplan, Miller & Ciresi L.L.P., 2800
LaSalle Plaza, 800 LaSalle Avenue, Minneapolis, MN 55402 (for respondent
University of Saint Thomas)
Considered and decided by Lansing,
Presiding Judge; Stoneburner, Judge; and Collins, Judge.
U N P U B L I S H E D O P I N I O N
DiBlasio and Helen Murphy appeal pro se from the district court’s dismissal of
their Minnesota Environmental Policy Act claim.
Because we conclude that the failure to serve a summons compels dismissal
and that the thirty-day statutory period to appeal the denial of a third
environmental assessment worksheet had expired, we affirm.
A C T S
appeal arises from the University of St. Thomas’s plan to expand its campus by developing
an area adjoining Summit Avenue
in St. Paul. In 2001, as required by the Minnesota
Environmental Policy Act (MEPA), the city of St. Paul, as the responsible governmental
unit (RGU), initiated an environmental assessment worksheet (EAW) to determine
whether the impacts from the project warranted an environmental impact
statement (EIS). The city revised the
project proposal in 2003 in response to public comments. Because the revised proposal differed significantly
from the previous proposal, the city prepared a second EAW to assess the
project’s impacts. The second EAW was
submitted for public comment, and, in 2004, the city concluded that an EIS was
Twenty-eight St. Paul residents filed a petition to
initiate a third EAW, alleging procedural errors in the previous EAW. The city denied the petition on February 15,
2005, based on its conclusion that the revised proposal resulted in fewer
impacts than those considered in the previous EAWs and that the previous EAWs
Two of the petitioning citizens, Margaret
DiBlasio and Helen Murphy, filed a pro se complaint against the city on
March 16, 2005, seeking a declaratory judgment that a third EAW was required. Although DiBlasio and Murphy served the
complaint on the city on March 16, 2005, they did not serve a summons. The city filed a motion to dismiss and for
summary judgment, alleging that service was ineffective, the statute of
limitations had run, the claim was barred by res judicata, and the complaint
failed to state a claim upon which relief could be granted. The University of St. Thomas
intervened and joined the city’s motion.
district court dismissed the case with prejudice and, in the alternative,
granted the summary-judgment motion.
DiBlasio and Murphy appeal from this judgment.
E C I S I O N
civil action in Minnesota
is commenced when the plaintiff serves a summons on the defendant. Minn. R.
Civ. P. 3.01; Wallin v. Minn.
Dep’t of Corr., 598 N.W.2d 393, 400 (Minn. App. 1999) (explaining that,
although federal rules specify that action begins with filing of complaint,
action in Minnesota
commences with service of summons), review
denied (Minn. Oct. 21, 1999). Service in a manner not authorized by the rules
of civil procedure is ineffective. Tullis v. Federated Mut. Ins. Co., 570
N.W.2d 309, 311 (Minn.
1997). When service of process on
necessary parties is invalid, the district court does not have personal
jurisdiction to resolve the controversy, and the case is properly dismissed. Lewis v.
Contracting Nw., Inc., 413 N.W.2d 154, 157 (Minn. App. 1987). The question of whether service of process is
valid is a question of law subject to de novo review. Amdahl
v. Stonewall Ins. Co., 484 N.W.2d 811, 814 (Minn. App. 1992), review denied (Minn. July 16, 1992); see also McBride v. Bitner, 310 N.W.2d
558, 561-63 (Minn.
1981) (applying de novo review when considering whether service was proper).
strictly apply the rules on service of process and the requirement of a summons. Nieszner
v. St. Paul Sch. Dist. No. 625, 643 N.W.2d
645, 648 (Minn. App. 2002); see also Lebens v. Harbeck, 308 Minn.
433, 434, 243 N.W.2d 128, 129 (1976) (requiring strict compliance with service
rule when contesting election). And we
construe the rules related to commencement of a judicial action to provide a
single, uniform course of procedure applicable to all civil actions. Leek v.
Am. Express Prop. Cas., 591 N.W.2d 507, 508-09 (Minn. App. 1999), review denied (Minn. July 7, 1999).
limited exception to strict compliance has been recognized when the plaintiff
has substantially complied with the rules on service and the defendant has
actual notice of the law suit. O’Sell v. Peterson, 595 N.W.2d 870, 872
(Minn. App. 1999). Actual notice without substantial compliance,
however, is insufficient to establish jurisdiction over a defendant. Tullis,
570 N.W.2d at 311. And the actual-notice
exception to the service requirement only applies to substituted service of
process at a defendant’s usual place of abode.
Turek v. A.S.P. of Moorhead, Inc.,
618 N.W.2d 609, 612 (Minn. App. 2000), review
denied (Minn. Jan. 26, 2001).
relevant facts are undisputed. DiBlasio
and Murphy failed to serve a summons on the city or the University of St. Thomas
at any point in this litigation, and both entities timely raised the defense of
ineffective service. DiBlasio and Murphy
contend that failure to serve a summons is a technical error that does not
justify dismissal in light of their pro se status. The law, however, does not support this
argument. The rules of service are
strictly construed, and pro se status “does not entitle a party to modification
of procedural rules.” Ronay v. Ronay, 369 N.W.2d 12, 14 (Minn. App. 1985). The procedural rule requiring service of a
summons is not a mere technical rule; it constitutes a significant failure to
abide by an essential part of the litigation process. See
Doerr v. Warner, 247 Minn.
98, 103, 76 N.W.2d 505, 511 (1956) (explaining that service of summons is
fundamental requirement for initiation of lawsuit). Consequently, a litigant cannot withstand a
motion for dismissal by arguing that the failure to serve a summons is only a
technical error. See Year 2001 Budget Appeal of Landgren v. Pipestone County Bd. of
Comm’rs, 633 N.W.2d 875, 878-79 (Minn. App. 2001) (concluding that, because
timely service is jurisdictional issue, technical error in service does not
defeat grounds for dismissal).
and Murphy argue that the city and the University of St. Thomas
received actual notice of the lawsuit when they received service of the
complaint. But the actual-notice
exception only applies to cases involving substituted service, which is
different from the personal service at issue in this case. In addition, actual notice may only excuse
ineffective service when the plaintiff substantially complies with the service
rules. According to the record, DiBlasio
and Murphy did not attempt to serve any form of summons. See
Minn. R. Civ. P. 4.01 (stating necessary form
and content of summons), 4.03 (specifying methods of serving summons). Because this case does not involve substituted
service and because the evidence does not demonstrate substantial compliance
with the rules of service, actual notice of the litigation is insufficient to
establish effective service and personal jurisdiction. The district court did not err by dismissing
The district court dismissed the complaint with prejudice because the
statutory period for appealing the denial of an EAW had expired. Judicial review of a decision on the need for
an EAW “shall be initiated within 30 days after the governmental unit makes the
decision.” Minn. Stat. § 116D.04,
subd. 10 (2004); see also Minn. R.
4410.0400, subp. 4 (2005) (“Decisions by a[n] RGU on the need for an
EAW . . . are final decisions and may be reviewed by a
declaratory judgment action initiated within 30 days of the RGU’s
decision.”). Thus, the statutory
limitation period for challenging the denial of a petition for an EAW is thirty
days. Save Our Creeks v. City of Brooklyn Park, 682 N.W.2d 639, 647-48
(Minn. App. 2004) (discussing thirty-day limitation period for commencing
declaratory-judgment action challenging environmental-review process), aff’d 699 N.W.2d 307 (Minn.
2005). The construction and application
of a statutory limitation period is a question of law, which we review de
novo. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn. 1998).
city, as the RGU, issued a decision that denied DiBlasio and Murphy’s petition
for an EAW on February 15, 2005. They
had thirty days from this date to initiate judicial action against the city and
the University of
St. Thomas by serving
them with a summons. See Minn. R. Civ. P. 3.01 (providing that
service of summons commences civil action).
They did not commence the action within thirty days, and their claim is
therefore barred by the statute of limitations.
Although DiBlasio and Murphy served the city with a complaint within
thirty days of the city’s decision, service of a complaint does not commence an
action in Minnesota. Because the action was never initiated and
the statute of limitations had run when the city and the University of St. Thomas
moved for dismissal, the district court did not err by dismissing the suit with