involves the courts to noble review my name is kyle torben and i represent the appellant who is the plaintiff below her name is no well mashad she's a personal injury victim she's present in court with me today and the first thing that i would like to talk about is that this case on its facts seeks to turn what is the public policy not only of the state of minnesota but of all of the states that i'm aware of  compensating tort victims that are injured in accidents especially those that are of no fault of their own and do everything right regarding service of process and it takes that policy and it turns that policy on its head so that essentially the service of process statute is the attempt here is to have that be used essentially as a sword to take away the ability in the right of the injured victim to have their day in court now let me turn to the specifics and i also won't reiterate the facts you know the court counsel i'm going to i'm going to ask you a question even about your opening which is that  met the minnesota rules as strict compliance you have to strictly comply with the requirements of service and so it's not a matter of it's not a matter of depriving folks of their recovery it's a matter of making sure that there's notice given to that the rules are complied with what's responsive that understand the question you're a minor thank you i i believe that the response to that is that there is strict compliance in this case and i'm not i'm not asserting that that is a policy that trumps the service of statute or the service of process rules rather it's a lens through which the overall this court is in part a policymaking court and i just ask the court to keep in mind that as we look at the compliance with those statutes that if there is in fact strict compliance which will be part of the argument that i will submit to the court that we shouldn't forget about the lens of due compensation of court toward victims so in this case it was a car accident my client was seriously injured the defendant was a very young woman was in college at the time and all of the end issue when it came time for service of process intentionally by the facts in this case all and issue where that she lived at one fifteen forest view in lake bluff illinois will refer to that as one fifteen  that included every every factual and issue and clued in drivers licenses insurance policies school materials voting records and she testified that she left those things there intentionally the first argument we would make is that with that failure and with the known policy of minnesota that an intent to return is a big issue is an important issue as multiple of the cases sate that she in fact did live at one fifteen even though she apparently rented a small room it didn't have other facilities it was a room at a home that was owned by someone else which she testified that she took that room because it was convenient between her job allowed or access indicating that however both she and her father testified in a little bit different language but essentially that there was an intent to return home every weekend is that the same as an intent to return those seem to be pretty significant differences because if it's an intent to return home every weekend are you suggesting that she would have to know usual places of abode that minnesota would recognize someone could have to well that that question is one of the things that i'm here to address with the court today because it is of question of first impression in the state of minnesota whether you can have two places of abode the dictionary definition of the usual place of abode and i think if we again look at policy is to what the what this is meant to accomplish it's to get actual process a notice into the hands of someone so that they are afforded due process if they're in two different locations and it but they're going to be there regularly and you know that they're going to be there regularly it satisfies the requirement of trying to afford due process to t defendant as long as we know that they're going to return it if if if the family home is for usual place of do we have to conclude that she has to and is that your argument she has to and this goes to judge kelly's line of questioning to younger was then residing there in that portion of the of rule four of the minnesota rules of civil procedure but in younger it analyze the case dealing with  college students returning home and we said are the courts said that in that opinion the minnesota supreme court said that opinion that returning home from college is different it gets them into that to the point that sort of returning home every weekend because when you're returning home from college you have an intent to return over the long term what's the relevance of that analogy that was that was made in the in the case realizing it was a tempering slightly different language how would you and how would you interpret that i realize you may not have it sitting in front of you but but i think the analogy is still there and i would ask you to distinguish it when i think magistrate boyce i actually raised that question to whether there was a distinction and i said the distinction if if the distinction between proper service and non proper service when we know that a college student is returning home versus a person who says that they're returning home and just graduated from college but prada room that it isn't a door i think we're we're splitting hairs the order on the theater o the absurd in my opinion and i argued to magistrate judge brinn that it is akin to the college student cases there are there are other college student cases to the talk about an intent to return while you're in college is sufficient for that to be here usual place of abode whether that because it is an issue of first impression whether that makes it her actual place of abode because she intends to return or whether there's two places of abode but she still intends to return the argument that i'm making is that intent to return is one of the requirements are not one of the requirements excuse me one of the policies because a lot of the cases that are out there including the one that's most often are was cited as most prominent by opposing counsel lundgren versus green these are all cases where the person has no intention to return that was a medical malpractise case where the husband was a doctor who got divorced and left with no intention to return in fact found out about the case from the practice group that he was with because they were a codefendant later on let me i'm going to get my original question a little differently we've got the college student example i in but usual place of abode what's the relevance of the fact that  the plural form of places is not used in other words it seems the the rule and again we're talking about you know strictly complying usual place of abode seems to refer to one place so i guess to you know ask judge kelly's question my question a slightly different way can there really only be one usual place of abode versus places of a boat that wasn't that is a question i wasn't prepared for but what i would argue to that your honor is that doesn't require plural because usual modify is the term place you can the term usual is used in that instance talks about the regularity and where you may be on any given basis as does the dictionary definition and so i think the policy of sadness is most satisfied by having you could have a place of abode that you were away from forever i mean this was the place that you intended to return someday but you're going to be gone for a long time is the policy better satisfied by saying that that has to be the place even though you're never going to end up with actual service or is it better satisfied by saying i'm now laying my head at my sister's house but i'm doing that for six months does that become your usual place of abode so that you actually end up with the service of process which is the due process that we're looking for a lot of rules three and four of them and sort of rules all the follow up on that does that mean then that if it is singular i know you are going it shouldn't just be one but if they would it under your theory if they would have served her at her i think she got the rental room have of craigslist if they would have served her at the rental room or the rental house or whatever would that part that service have been improper no i don't believe it would have been a pro it really does require that for there to be two usual places of abode here that we have to construe that language as including the fact that there could be two places of a boat for agri with that i think the usual i think the term usual honors that concept well let me let me ask you this and  talking about this term usual place of the by and getting rot to the quote it says the purpose of the use of the term in iraq relating to the service of process has primary reference to the place where the defendant is usually to be found now how can how can you say that someone is the place where i'd where the defendant usually is to be found isn't that by definition a singular reference to a singular place of the place where the defendant is usually to be found i would say no and the reason i would say that respectfully honor is that i don't believe that the very whole court was addressing this circumstance and i think that we're we're splitting the words very carefully i would focus in that very quote on the place where you're usually to be found in this instance she's usually to be found every weekend in her parents home and you know if she's found someplace else during the weekdays then it goes to the issue of whether there can be two usual places of abode so usually stayed had no facilities there was no ability to do laundry those types of things so she returned every weekend and was served and in fact on the  written there is no dispute to the actual facts in this case sheriff goes to the defendant appellee davidson's father's house says here you go does miss davidson live here and the father says no you don't say no he says she'll be home later tonight and the sheriff drops it off there's no dispute the missed davidson wasn't living at her parents house the majority of the time here she moved out half a year before she had a lease agreement she would come home frequently on weekends but not every weekend and she might stay a night so to the extent that it was two days out of every week i think the facts don't support that i think it was maybe odd night on a weekend frequently but not always now please counsel argues what i believe to be two questions of law and one question of fact the first one is does minnesota's usual place of abode standard permit more than one place counsel before you get into the core of your argument i want to explore and and i don't really ask counsel about it but you know i was on the alito vs heitman case and the issue of personal delivery came up whether the mail handler the postal worker could could affect personal delivery and there's a line in the lelo that says that the reason why the mail handler the postal worker did not affect persona delivery is because there was no intent to serve and here arguably the father in his interactions with what the deputy sheriff said oh i'll deliver that later tonight and so arguably the father here had an intent to serve now i know that there's all other older cases that suggest that there is no second hand delivery but how do we square that with the lilo and is there any legs tell me why there's not legs to the argument that matters first of all how can you say that the father has intent to serve when he doesn't even understand what's going on the sheriff says does miss davidson live here and says also be coming over tonight because he's not a lawyer he doesn't understand the nuances of the usual place of abode he's got documents to see what he knows what they are i think it boggles the mind to think that her father would intentionally serve some action to commencing a lawsuit against his own daughter what about letter and started just interrupt right there and i'll let you continue on but he did say he told me what it was about and then he left so i think there is something in the record that i'm not sure it's entirely ludicrous to think that he understood that the sheriff was here to serve he told me what it was about and i said yes i'll give it to you and he said he told it was about but he didn't actually explain what it was about or what his understanding of it was he could've said these are legal papers for your daughter and that's what he said was because the postal worker was just delivering a letter or whatever it was had no idea what it was and so how can you have the intent to serve something you don't know what it was but here you at least have knowledge that of what it is general knowledge and so does that kind of put you in the middle ground and what do we do with that i don't think it does because we've got a number of other cases in which almost identical fact patterns have existed where someone hands someone a summons and complaint and when you perfect service on someone you can just say here you go  you say i'm handing you a summons complaint so everyone in all of these similar example cases new to the same extent as the father in this case what it was and pass it on to the next person and we see that in times past the court has not feel the stage for sample you give it to the secretary and granted the court case does not specifically analyzed in the secretary specifically handle and to the other worker but we can presume so that it was argued in those  cases so i would argue that those other cases have at least implicitly if not explicitly in the prior briefing which wasn't addressed in the polls reading rejected that article furthermore to the extent that it was addressed in the court's prior orders and i know that it was a someone and it's personal direct or substitute and i'm trying to get out whether minnesota would allow for some kind of second the second hand direct rights personal and so if you've got the intent factor taking care of what in the rule prohibits the father from being in the process server i would say there is nothing explicitly in the role but that the minnesota supreme court has addressed the same set service and i'm just wondering if this is been entirely precluded by minnesota law or whether either it hasn't been addressed directly under the personal service problem or in the alternative whether the minnesota supreme court has only spoken to it in dicta and and curious what your thoughts are on that  lawsuit from in time from another source is that a factor here is at play at all in this case no your honor it requires strict compliance not actual i know there your position but factually did did the defendant in the in the lawsuit learn of the book know of the lawsuit otherwise no your honor this accident happened over six years before she was given this lawsuit i doubt that they even i doubt the father who wasn't there at the time even remembered that it happened to his daughter over six year prior to it and there is serving legal papers regarding something but what's the extensive requirement that they have particular knowledge that you seem to be inferring that that they are implying that the father's no no no it's well you know may know it's legal papers but he doesn't know the details do you think the deputy sheriff needs to know that as well i believe that he has to have some understanding as to what he's serving so that he can comply with the rules of procedure you know he has to know who we serving it it requires personal service or substitute service so i think it does depend i i'm frankly i'm not familiar with enough areas of law such as i've never practiced family law or criminal law so i don't know if that's requires a different level of understanding as of what in this case i'm not going to get off the personal delivery but you know there is an element of unfairness here i mean i think you would probably agree on that which is you give it to the deputy sheriff which is what you're supposed to do under the rules the deputy sheriff takes it the deputy sheriff is not an agent of the plaintiff messes up serves in the wrong place it's actually didn't ask the right questions to ask pretty precisely the right questions and i understand there's a competing due process narrative which is that you know the defendant in the punitive action didn't receive notice but there is an element of unfairness because it becomes it gets out of the plaintiff's control completely when it goes to the deputy sheriff one would think and so did you address that a bit as well just the element of unfairness to top point you did everything almost everything she was supposed to do you got her i think that's part of the nature of the law is that there's always a little bit unfairness at the at the edges i mean i'm someone who waits one extra data services complaint is completely barred by the statute of limitations those are the rules failure to respond to requests for missions within thirty days is barred in this case the plaintiff was aware of her injuries for over six years she had six years to commence this lawsuit instead she waited until a few days before the statute of limitations ran and relied on a sixty which has limitations with share this lawsuit could have been perfected earlier time furthermore as the appellant argues in her brief once it was delivered to the sheriff services that have been perfect in other matters such a service by  she did learn well isn't it isn't it isn't it kind of an agreed fact here that the father when she went to the father's house for dinner he told her that about the visit the officer that the papers had been been received yet she did receive the papers whether he knew what those papers mentor understood has never been clarified of this court furthermore your honor as representing so for average worker it's not a situation where the deputy gives the papers to the father and then he forgets about them he tucks them away and forgets never mentions them to anybody right instead that very day he  in essence served the papers on home the daughter on the defended well i wouldn't use the terminology that he serve the papers on the daughter i mean what if he'd just left them on the kitchen table and said oh by the way there's something on the kitchen table for you is that the proper service that we need and in furthermore i can talk more about that your honor but go back to your point i want to dress one more thing of unfairness the defendant in this case to perfect the removal to federal court did serve an answer and that answer did allege that there was insufficient service a process in violation of statute of limitations within twenty days so they still had an additional over many days thereafter to complete that service  finally or on a more than happy to address any more questions but i have two minutes and thirty seconds left just to round up the facts of this case first of all with regard to two usual places of board i think is your honour's question earlier there is no minnesota case law to sustain that and every case all that support is from another state and stick to i make the same arguments with regard to second hand service that if the minnesota supreme court wants to create a new law to allow the service of second hand service they may do so but they have not chose to do so in the history of minnesota filing with regard to the terminations as to what the usual place of abo was it was clearly where she was renting she had moved all over things out of her bedroom the intent to return that was argued is an intent to return to live now to return to her return to visit i was twenty five years old once and you know i went over to my parents house for dinner too because i couldn't afford the great dinners that they would serve in the home cooked meals that didn't mean that i was living there at the time i agree with you i just would have add one thing was or at least a genuine issue of material fact about that which is to say that if you can have two usual places of a boat she kept a lot of her documents that the key address being the parent's home you know driver's license all these things were going to a parent's home which indicates or could indicate an attempt to return to live not an intent to return to visit there's no dispute as to any of the evidence here and how that is argued is obviously argue differently she did have some of her official addresses daughter old house and her testimony was that it slowly changed over time as a twenty five year old myself i was remiss on updating my address the minute i left an apartment or my parents house it took me a while to get milly address i think my parents still got magazines a decade after had moved out but the the test is where she is actually living and her testimony your father's testimonies that they cleaned out the bedroom you know she took her bed with her all her belongings with her and she was never going to move back in with her rumors i would like to use the limited time i have to try to address some of the things that i think were brought up by the courts questioning in terms of the case that was raised and the quote that was being proffered is we've required that the process server know that a summons is being served and intended to serve it that factual scenario is addressed at some length pages five on to seven of the original brief thomas factually just quick factual argument thomas her father said that they're pretty sobrante it was real nice and explained what all of the paperwork was to thomas he subroto asked him if he would hand the process documents to sarah when she returned home and thomas told deputies soprano that he would and he did when he arrived her father who by then had looked over the document again himself duly handed those documents to sarah indicating that he had indeed been served with them that related to the accident that she was in in two thousand and ten and handed her the documents at which point recognizing both of them talking that they were both the two thousand and ten accident they sat down together in contact of the insurance agent i don't think there's any question based on that series of facts that thomas understood what it was that he had and it the strict second hand service strict compliance requirements with minnesota they're trying to add something to the rules here by their arguments that are not there in a plain reading of minnesota rules two and three the scanlan place right on point in that the strict compliance with those rules the differential in this this court on one occasion addressed a case similar to this in marshall versus warrick but in that case there wasn't the proof that was necessary under the south dakota statute that service has been made here there is there is the under oath testimony of thomas i'm out of time  thank you for your argument this morning cases