* 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.

Ap pellants appeal the order of the District Court grantin g 2 appellee’s motion for summary judgment. The facts of the case are not in dispute Appellee New Hampshire Insurance Company (“New Hampshire”) w as the pr operty insurer for Clarkfield Drying for the period July , 1991 to July, 1992. In September 1991, Clarkfield Drying filed aThe 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, pri ncipals of Clarkfield Drying, leased the drying plant to MW Ag, Inc

. Richard and Clark Field are principals of that corporation a s well. MW Ag continued to pay the insurance premiums to New Hampshire in order to continue insurance coverage on the property. OnJune 16, 1992, a tornado hit the city of Clarkfield , causing extensive damage to the drying plant. The Chapter 7 bankruptcytrustee instituted adversary proceedings against Ne w Hamp shire demanding insurance proceeds for the property damage

. NewHampshire paid $453,870.68 into the Bankruptcy Court. Th e truste e retained the monies and assigned the bankruptcy estate’ s remaining rights under the policy to the Fields and MW A g (collectively“MW Ag”). MW Ag, as assignee of the insuranc e policy, demanded more money from New Hampshire. MW Ag, thro ugh its attorney, participated in ongo ing negotiations with New Hampshire, represented by its attorney Michael Baxter (“Baxter”). Bec ause the insurance policy mandated that a suit under th e insuranc e policy must be brought within two years of the date o f the actual loss (the “contractual limitation”) , when MW Ag’ s 3 discussions with New Hampshire failed to result in a satisfactory settle ment, MW Ag drafted a lawsuit against New Hampshire t o collect the monies allegedly due under the contract. The lawsuit
was to be brought in Minnesota state court. MW Ag called Ne w Hampshire’s legal department t o inquire as to the name and address of New Hampshire’s agent for service of process and was informe d that P. Foley was the proper agent for service and was give n Fo ley’s address. Therefore, on June 13, 1994, MW Ag mailed b y 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
an d mailed a copy of the complaint and summons to an insuranc e investigator with the state of Minnesota. P. Foley was not in fact the a gent for service of process for New H ampshire. The proper agent was Elizabeth M. Tuck, who wa s located, coincidentally, at Foley’s same address. OnJuly 11, 1994, New Hampshire removed the suit to federa l court and on July 21, 1994, fi led an answer asserting insufficient
serv ice of process as a defense. On December 29, 1994, Ne w Hamps hire was granted leave to amend its answer and to assert a counte rclaim. On November 22, 1995, the district court entere d summary judgment in New Hampshire’s favor dismissing the case for failin g to commence the lawsuit within the two year contractua l limitation period.

STANDARD OF REVIEW

We review a District Court’s grant of summary judgment d e novo, applying the same standards as the District Court. Se e Diesa

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

. Thus, the District Court’s decision is affirmed if, viewing th e evidence in the light most fav orable to the nonmoving party, there is no g enuine issue of material fact and the moving party i s 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 contractua l limitation period by properly serving New Hampshire with process. Federal courts follow state su bstantive 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). Unde r Minnesota law an action is “commenced” by service of the sum mons on
a defendant, by acknowledgment of service or by delivery to th e sheriff. Minn.R.Civ.P. 3.01. Here, MW Ag contends that its action4

against New Hampshire was commenced within the two year cont ractual limita tionperiod because New Hampshire was properly served wit h the summons and complaint within that time period. Minn esota Rule of Civil Procedure 4.03 allows for persona l service upon a foreign corporation by delivering a copy of th e summons and complaint to an ag ent authorized to receive service of
summons. Rule 4.05 allows for service by mailing a copy of th e
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 b y the sender within the time def endant is required by these rules to serve an answer, service shall be ineffectual.” Fir st, MW Ag contends that by mailing the summons an d compla int to P. Foley, whom MW Ag was led to believe was Ne w Hampsh ire’s registered agent, service was properly effected o n June 13, 1994 and the lawsuit was commenced. It is undisputed , however, that P. Foley was not New Hampshire’s registered ag ent for service of process. It is also undisputed that MW Ag did no t provide P. Foley with the requ ired acknowledgment form and did not receive an acknowledgment of s ervice from New Hampshire. Thus, it is clear that service is ineff ectual under Minnesota’s rule. This is true even in those cases where defendant never returne d 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. Se e Coons v. St. Paul Companies , 4 86 N.W.2d 771 (Minn. Ct. App. 1992). Inthese instances, plaintiff must secure personal service t o obtain jurisdiction. Thus, the service by mail on P. Foley was not suf ficient service of process to commence a suit under Minnesot a law. Second, MW Ag argues that the delivery of a copy of th e
su mmons and complaint to Baxter, New Hampshire’s attorney, wa s effective service of process. There is no evidence in the form of
an aff idavit or otherwise from the delivery service establishin g that the summons and complaint were in fact delivered to Baxter on June 14, 1994. Further, there is no support for MW Ag’s position5

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 Hampshi re. Finally, although New Hampshire acknowledges that at some time Baxter received a copy of th e
su mmons and complaint, such receipt does not constitute actua l notice that would obviate the need for sufficient service o f process. Coons v. St. Paul Companies , 486 N.W.2d 771 (Minn. Ct

. App. 1992). Altern atively, MW Ag argues that service of process wa s 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 requi res the receipt of an acknowledgment of service from the defendant before service by mail is completed. Although an action is commence d 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 t o effect service of process on New Hampshire are not sufficien t under New York law.

WAIVER
MW Ag contends that the alleged insufficiency of its service of proc ess on New Hampshire was waived by the actions of Ne w Hampshire -- first, when the action was removed by New Hamps hire to federal court; second, when New Hampshire filed its answer to the complaint; or third, when New Hampshire filed an amended ans wer and asserted a counterclaim against MW Ag. While it is true that New Hampshire’s assertion of a counterclaimagainst MW Ag may have constituted a waiver of th e insuff iciencyof service of process, that waiver occurred i n December 1 994 - after the critical date of June 16, 1994 (th e contractual limitation date). MW Ag argues that the waiver should relate back to either the date the summons and complaint wer e mailed to New Hampshire (June 13, 1994) or the date that th e 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 sta tute of limitations purposes on the date upon which the action resul ting in the waiver took place. In fol lowing that rule, all of the actions taken by New Hampshire which MW Ag contends constituted a wa iver of insuff icient process are irrelevant to this case because all o f those actions were taken after June 16, 1994. Therefore, although anyof those actions may have constituted a waiver, the sui t brough t by MW Ag was not commenced within the contractua l limita tionperiod. As such, summary judgment is appropriate i n this case. Therefore, the decision of the District Court is affirmed.

A true copy.

Attest:

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