* The Honorable Ortrie D. Smith, United States District

Judge for the Western District of Missouri, sitting by

designation.

 The Honorable John M. Mason, United States Magistrate Judge

for the District of Minnesota. The parties consented to

jurisdiction before the United States Magistrate Judge pursuant

to F.R.C.P. 73.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-2239

___________

MW Ag, Inc., Richard Field and *

Clark Field, *

*

Appellants, *

* Appeal from the United

v. * States District Court for

* the District of Minnesota.

New Hampshire Insurance Company, *

*

Appellee. *

___________

Submitted: December 9, 1996

 Filed: February 26, 1997 

___________

Before BOWMAN and LAY, Circuit Judges, and SMITH, District Judge. *

___________

SMITH, District Judge.

Appellants appeal the order of the District Court granting

2

appellee’s motion for summary judgment. The facts of the case are

not in dispute

Appellee New Hampshire Insurance Company (“New Hampshire”) was

the property insurer for Clarkfield Drying for the period July,

1991 to July, 1992. In September 1991, Clarkfield Drying filed a
 The contract provides:

No one may bring a legal action against us under

this coverage Part C unless:

1. There has been full compliance with all of the

 terms of this coverage part; and

2. The action is brought within two years after the 

 date on which the direct physical loss or damage

 occurred. 

Chapter 7 bankruptcy petition. Richard and Clark Field, principals

of Clarkfield Drying, leased the drying plant to MW Ag, Inc.

Richard and Clark Field are principals of that corporation as well.

MW Ag continued to pay the insurance premiums to New Hampshire in

order to continue insurance coverage on the property. 

On June 16, 1992, a tornado hit the city of Clarkfield,

causing extensive damage to the drying plant. The Chapter 7

bankruptcy trustee instituted adversary proceedings against New

Hampshire demanding insurance proceeds for the property damage.

New Hampshire paid $453,870.68 into the Bankruptcy Court. The

trustee retained the monies and assigned the bankruptcy estate’s

remaining rights under the policy to the Fields and MW Ag

(collectively “MW Ag”). MW Ag, as assignee of the insurance

policy, demanded more money from New Hampshire. MW Ag, through its

attorney, participated in ongoing negotiations with New Hampshire,

represented by its attorney Michael Baxter (“Baxter”).

Because the insurance policy mandated that a suit under the

insurance policy must be brought within two years of the date of

the actual loss (the “contractual limitation”) , when MW Ag’s

3

discussions with New Hampshire failed to result in a satisfactory

settlement, MW Ag drafted a lawsuit against New Hampshire to

collect the monies allegedly due under the contract. The lawsuit

was to be brought in Minnesota state court. MW Ag called New

Hampshire’s legal department to inquire as to the name and address

of New Hampshire’s agent for service of process and was informed

that P. Foley was the proper agent for service and was given

Foley’s address. Therefore, on June 13, 1994, MW Ag mailed by

express mail the complaint and summons to P. Foley. On June 14,
3

1994, MW Ag delivered a copy of the complaint and summons to Baxter

and mailed a copy of the complaint and summons to an insurance

investigator with the state of Minnesota.

P. Foley was not in fact the agent for service of process for

New Hampshire. The proper agent was Elizabeth M. Tuck, who was

located, coincidentally, at Foley’s same address.

On July 11, 1994, New Hampshire removed the suit to federal

court and on July 21, 1994, filed an answer asserting insufficient

service of process as a defense. On December 29, 1994, New

Hampshire was granted leave to amend its answer and to assert a

counterclaim. On November 22, 1995, the district court entered

summary judgment in New Hampshire’s favor dismissing the case for

failing to commence the lawsuit within the two year contractual

limitation period.

STANDARD OF REVIEW

We review a District Court’s grant of summary judgment de

novo, applying the same standards as the District Court. See Diesa

v. St. Louis Community College, 79 F.3d 92, 94 (8th Cir. 1996).

Thus, the District Court’s decision is affirmed if, viewing the

evidence in the light most favorable to the nonmoving party, there

is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

COMMENCEMENT AND SERVICE OF PROCESS

The issue before this court is whether MW Ag’s action against

New Hampshire was commenced within the two year contractual

limitation period by properly serving New Hampshire with process.

Federal courts follow state substantive law to determine when

an action is commenced for statute of limitations purposes. Walker

v. Armco Steel Corp., 446 U.S. 740, 752-753 (1980). Under

Minnesota law an action is “commenced” by service of the summons on

a defendant, by acknowledgment of service or by delivery to the

sheriff. Minn.R.Civ.P. 3.01. Here, MW Ag contends that its action
4

against New Hampshire was commenced within the two year contractual

limitation period because New Hampshire was properly served with

the summons and complaint within that time period. 

Minnesota Rule of Civil Procedure 4.03 allows for personal

service upon a foreign corporation by delivering a copy of the

summons and complaint to an agent authorized to receive service of

summons. Rule 4.05 allows for service by mailing a copy of the

summons and complaint to the person to be served together with a

notice and acknowledgment form. The rule specifically provides:

“If acknowledgment of service under this rule is not received by

the sender within the time defendant is required by these rules to

serve an answer, service shall be ineffectual.”

First, MW Ag contends that by mailing the summons and

complaint to P. Foley, whom MW Ag was led to believe was New

Hampshire’s registered agent, service was properly effected on

June 13, 1994 and the lawsuit was commenced. It is undisputed,

however, that P. Foley was not New Hampshire’s registered agent for

service of process. It is also undisputed that MW Ag did not

provide P. Foley with the required acknowledgment form and did not

receive an acknowledgment of service from New Hampshire. Thus, it

is clear that service is ineffectual under Minnesota’s rule. This

is true even in those cases where defendant never returned

acknowledgment of service but had actual notice of the lawsuit and

admitted that it received two summonses and complaints but made a

corporate decision not to cooperate in service of process. See

Coons v. St. Paul Companies, 486 N.W.2d 771 (Minn. Ct. App. 1992).

In these instances, plaintiff must secure personal service to

obtain jurisdiction. Thus, the service by mail on P. Foley was not

sufficient service of process to commence a suit under Minnesota

law.

Second, MW Ag argues that the delivery of a copy of the

summons and complaint to Baxter, New Hampshire’s attorney, was

effective service of process. There is no evidence in the form of

an affidavit or otherwise from the delivery service establishing

that the summons and complaint were in fact delivered to Baxter on

June 14, 1994. Further, there is no support for MW Ag’s position
5

that Baxter is an “agent authorized expressly or impliedly . . . to

receive service of summons” merely because Baxter negotiated with

MW Ag on behalf of New Hampshire. Finally, although New Hampshire

acknowledges that at some time Baxter received a copy of the

summons and complaint, such receipt does not constitute actual

notice that would obviate the need for sufficient service of

process. Coons v. St. Paul Companies, 486 N.W.2d 771 (Minn. Ct.

App. 1992). 

Alternatively, MW Ag argues that service of process was

sufficient under New York law. However, CPLR 312-a (1993), which

governs service of process in New York state court, is not unlike

Minnesota practice which requires the receipt of an acknowledgment

of service from the defendant before service by mail is completed.

Although an action is commenced in New York upon the filing of the

complaint with the court clerk, service by mail is not sufficient

until the plaintiff receives and files defendant’s acknowledgment

of service. CPLR 312-a(b). Thus, the actions taken by MW Ag to

effect service of process on New Hampshire are not sufficient under

New York law.

WAIVER

MW Ag contends that the alleged insufficiency of its service

of process on New Hampshire was waived by the actions of New

Hampshire -- first, when the action was removed by New Hampshire to

federal court; second, when New Hampshire filed its answer to the

complaint; or third, when New Hampshire filed an amended answer and

asserted a counterclaim against MW Ag.

While it is true that New Hampshire’s assertion of a

counterclaim against MW Ag may have constituted a waiver of the

insufficiency of service of process, that waiver occurred in

December 1994 - after the critical date of June 16, 1994 (the

contractual limitation date). MW Ag argues that the waiver should

relate back to either the date the summons and complaint were

mailed to New Hampshire (June 13, 1994) or the date that the

summons and complaint were delivered to Baxter (June 14, 1994).
6

This Court agrees with the District Court that where service

of process is not effected upon the defendant, but where a

defendant waives that defect, an action is commenced for statute of

limitations purposes on the date upon which the action resulting in

the waiver took place. In following that rule, all of the actions

taken by New Hampshire which MW Ag contends constituted a waiver of

insufficient process are irrelevant to this case because all of

those actions were taken after June 16, 1994. Therefore, although

any of those actions may have constituted a waiver, the suit

brought by MW Ag was not commenced within the contractual

limitation period. As such, summary judgment is appropriate in

this case.

Therefore, the decision of the District Court is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.