This opinion will be unpublished and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 APPEALS

A05-1117

 

Belzeta Phillips,

Appellant,

 

vs.

 

Designs for Learning, et al.,

Respondents.

 

Filed April 4, 2006

Affirmed

Halbrooks, Judge

 

 

Hennepin County District Court

File No. EM 04-016932

 

 

Belzeta Phillips, 527 Humboldt Avenue North, Minneapolis, MN 55405 (pro se appellant)

 

James R. Andreen, Erstad & Riemer, P.A., 8009 34th Avenue South, Suite 200, Minneapolis, MN 55425 (for respondents)

 

 

            Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Belzeta Phillips, appearing pro se, argues that the district court erred by dismissing her claim against respondents St. Paul Learning Center and Designs for Learning based on ineffective service of process.  Because we conclude that service was not effective upon either respondent, we affirm.

FACTS

            Appellant was employed by respondent St. Paul Learning Center a/k/a New Voyage Academy as a classroom assistant from August 2000 until August 19, 2003, when her employment was terminated.  Respondent Designs for Learning contracts with St. Paul Learning Center to provide financial services.

            Appellant brought a charge against both respondents with the Minnesota Department of Human Rights (the department).  The department dismissed the charge because “further use of the Department’s resources [was] not warranted.”  The department mailed a receipt of notice to appellant on October 8, 2004. 

The letter that appellant received from the Commissioner of the Minnesota Department of Human Rights specifically advised appellant that a “[c]harging party may bring a civil action against the Respondent in district court within 45 days of receipt of the dismissal of this case.” 

Appellant, pro se, filed an action in district court under Minn. Stat. § 363A.08 (2004), the Minnesota Human Rights Act, on November 18, 2004.  In her complaint, appellant alleged racial discrimination as a factor in her termination.  Appellant attempted to serve Designs for Learning by leaving a copy of the summons and complaint with the Ramsey County Sheriff on November 22.  The sheriff served Nancy Schultz, an employee of Designs for Learning, on November 29.  Schultz is not an officer or managing agent of Designs for Learning, nor is she an employee of the St. Paul Learning Center.  Appellant did not attempt service on the St. Paul Learning Center.

Respondents moved to dismiss appellant’s complaint pursuant to Minn. R. Civ. P. 12.  The district court granted respondents’ motion and dismissed appellant’s complaint with prejudice.  This appeal follows.

D E C I S I O N

I.

            Determination of whether service of process is proper is a question of law.  Turek v. A.S.P. of Moorhead, Inc., 618 N.W.2d 609, 611 (Minn. App. 2000), review denied (Minn. Jan. 26, 2001).  Because service of process is a fundamental requirement to initiate a lawsuit, Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350, 119 S. Ct. 1322, 1326 (1999), the district court must dismiss an action with prejudice when process is not effectively served within the statute of limitations.  See Vasek v. Warren Grain & Seed Co., 353 N.W.2d 175, 177-79 (Minn. App. 1984) (affirming district court’s dismissal of complaint with prejudice when plaintiff failed to effect service of process on an agent of defendant within statute of limitations).

            The Minnesota Human Rights Act establishes liability for an “employer” who adversely treats an “employee.”  Minn. Stat. § 363A.08, subd. 2 (2004).  “Employee” is defined under the act as “an individual who is employed by an employer and who resides or works in this state.”  Minn. Stat. § 363A.03, subd. 15 (2004).  And “employer” is defined under the act as “a person who has one or more employees.”  Id., subd. 16 (2004).

            Here, appellant was employed by St. Paul Learning Center.  Appellant was not employed by Designs for Learning.[1]  Therefore, only St. Paul Learning Center is potentially liable, as appellant’s employer, under the Minnesota Human Rights Act.  But appellant did not effect service upon St. Paul Learning Center within the 45-day time limit provided under Minnesota law after she received notice that the Commissioner of the Minnesota Department of Human Rights had dismissed her charge.  See Minn. Stat. § 363A.33, subd. 1 (2004).  Therefore, the district court did not err by dismissing appellant’s claim against St. Paul Learning Center on the grounds that service was untimely and ineffective.  Further, the district court did not err by dismissing appellant’s claim against Designs for Learning because it was not appellant’s “employer” under the act.[2]

            Affirmed.