Filed 4/11/19 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2019 ND 104

Josann M. Lupo, Plaintiff and Appellant

v.

Brianna M. McNeeley, 

a/k/a/ Brianna M. McNelly, Defendant and Appellee

 and

Trumball Insurance Company,

a/k/a The Hartford Insurance Company,

John Does 1-10, Defendants

No. 20180381

Appeal from the District Court of Stark County, Southwest Judicial District,

the Honorable William A. Herauf, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Mark C. Sherer, Dickinson, ND, for plaintiff and appellant; submitted on brief.

Alyssa L. Lovas, Bismarck, ND, for defendant and appellee; submitted on

brief.
Lupo v. McNeeley

No. 20180381

McEvers, Justice.

[¶1] Josann M. Lupo appeals from a district court judgment dismissing her

complaint with prejudice. The district court granted the defendant’s motion for

summary judgment, dismissing Lupo’s complaint with prejudice holding the claims

were barred by the statute of limitations. We affirm the district court judgment

dismissing Lupo’s complaint with prejudice, concluding N.D.C.C. § 28-01-32 did not

toll the statute of limitations.

I

[¶2] A car accident involving Lupo and Brianna M. McNeeley occurred in

Dickinson, North Dakota on August 17, 2009. At that time McNeeley had a

Minnesota address. Lupo filed a complaint in the district court on August 14, 2015

along with a summons and a certificate of service, certifying that on August 14, 2015,

she sent the complaint and summons to a process server for service on McNeeley at

an address in Battle Lake, Minnesota. The record does not reflect that service of

process was effectuated through a process server. On August 15, 2016, the court filed

a notice of intent to dismiss, to which Lupo replied requesting the court allow the case

to remain pending on the grounds that “service of process upon the Defendant, by

publication, will be perfected on September 6, 2016, the date that the last publication

of the Summons is set to run in the Dickinson Press.” In October 2017, the court

again filed a notice of intent to dismiss to which Lupo again responded seeking the

court allow the case to remain pending. After a status conference in November 2017,

Lupo filed an affidavit of service by publication in January 2018, and an affidavit of

publication in February 2018.

[¶3] In April 2018, following a February 10, 2018 publication of the summons,

McNeeley answered, raising the statute of limitations as an affirmative defense and

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also asserting insufficiency of service of process. In April 2018, McNeeley moved

for summary judgment, arguing Lupo’s action was time-barred by the applicable sixyear statute of limitations. Lupo opposed the motion, arguing the action was not timebarred because McNeeley was not a resident of North Dakota at the time of the

accident and therefore the limitations period was tolled under N.D.C.C. § 28-01-32. 

Lupo submitted the police report from the accident as an exhibit which reflected that,

at the time of the accident, McNeeley had a Minnesota address. The district court

granted McNeeley’s motion, dismissing Lupo’s complaint with prejudice as a matter

of law. The court’s order relied on Atkinson v. McLaughlin, 462 F.Supp.2d 1038 (D.

N.D. 2006) to support its conclusion that McNeeley was subject to the jurisdiction of

the North Dakota courts and therefore the statute of limitations was not tolled under

N.D.C.C. § 28-01-32.

II

[¶4] We review district court orders granting summary judgment as follows:

Summary judgment is a procedural device for the prompt

resolution of a controversy on the merits without a trial if there are no

disputed issues of material fact or inferences to be drawn from the

undisputed facts, or if resolving disputed facts would not alter the

results.

. . . .

The party moving for summary judgment has the burden

of establishing that there are no genuine issues of

material fact and that the moving party is entitled to

judgment as a matter of law. In deciding whether the

district court appropriately granted summary judgment,

this Court views the evidence in the light most favorable

to the party opposing the motion, and the opposing party

will be given the benefit of all favorable inferences that

can reasonably be drawn from the record. On appeal, we

decide whether the information available to the district

court precluded the existence of a genuine issue of

material fact and entitled the moving party to judgment

as a matter of law.

Whether a district court properly granted summary judgment is

a question of law this Court reviews de novo on the entire record.

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Palmer v. 999 Quebec, Inc., 2016 ND 17, ¶ 6, 874 N.W.2d 303 (internal citations and

quotations omitted).

III

[¶5] Under N.D.C.C. § 28-01-16(5), an action for personal injury must be

commenced within six years after the claim for relief accrues. Neither party disputes

the cause of action accrued at the time of the accident on August 17, 2009. In North

Dakota, a “civil action is commenced by the service of a summons.” N.D.R.Civ.P.

3. See also Langowski v. Altendorf, 2012 ND 34, ¶ 9, 812 N.W.2d 427 (stating a civil

action begins “when a plaintiff serves a summons upon a defendant”).

[¶6] Lupo argues the statute of limitations was tolled due to McNeeley’s out-ofstate residence at the time of and following the accident. She points to N.D.C.C. § 28-

01-32, which provides for tolling of the statute of limitations as follows:

If any person is out of this state at the time a claim for relief

accrues against that person, an action on such claim for relief may be

commenced in this state at any time within the term limited in this

chapter for the bringing of an action on such claim for relief after the

return of such person into this state. If any person departs from and

resides out of this state and remains continuously absent therefrom for

the space of one year or more after a claim for relief has accrued

against that person, the time of that person’s absence may not be taken

as any part of the time limited for the commencement of an action on

such claim for relief. The provisions of this section, however, do not

apply to the foreclosure of real estate mortgages by action or otherwise

and do not apply if this state’s courts have jurisdiction over a person

during the person’s absence.

(Emphasis added.) The district court considered this statute’s application and found

the limitations period was not tolled because McNeeley was subject to the jurisdiction

of North Dakota courts.

[¶7] The district court’s order acknowledged that this Court has not interpreted

N.D.C.C. § 28-01-32 since its most recent amendment in 1989, and based its

reasoning on federal case law from the federal district court in Atkinson, 462

F.Supp.2d 1038. In Atkinson, the federal district court noted that this Court has

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expressly held “that Section 28-01-32, N.D.C.C., applies to both residents and

nonresidents.” Id. at 1048 (quoting Loken v. Magrum, 380 N.W.2d 336, 341 (N.D.

1986)). The federal district court held “[o]n its face, and in the absence of any

direction from the North Dakota Supreme Court, Section 28-01-32 clearly provides

that a statute of limitations is not tolled with the absence of a party from the state if

the state courts have jurisdiction over the absent party.” Id. at 1048. The court in

Atkinson held that defendants not present in North Dakota were still subject to North

Dakota courts’ jurisdiction because the plaintiff could have completed service via

publication:

It should be noted that the position asserted by Atkinson

overlooks his ability to obtain service of process by publication if

personal service could not have been made after a diligent attempt was

undertaken to locate the McLaughlins. See N.D.R.Civ.P. 4(e). The

ability to serve process by publication eliminates the need to locate a

nonresident who may be difficult or impossible to find. Section 28-01-

32 clearly provides that the statute of limitations is not tolled when the

North Dakota “courts have jurisdiction over a person during the

person’s absence.” Service in this case could have been easily achieved

by publication.

Id. at 1049-50. In Atkinson, the out-of-state defendants were not only out of North

Dakota, but were in fact out of the country, traveling in Cambodia following the

accrual of the claim. Although we are not bound by the reasoning in Atkinson, we

agree with it and adopt its analysis of N.D.C.C. § 28-01-32.

[¶8] While this Court has not before applied N.D.C.C. § 28-01-32, since its

amendment in 1989, we have recognized “[t]he amendment apparently refers to the

availability of ‘long-arm’ service of process under Rule 4, N.D.R.Civ.P.” Fuson v.

Schaible, 494 N.W.2d 593, n.10 (N.D. 1992). North Dakota’s long-arm provision is

located in N.D.R.Civ.P. 4(b)(2), which states, in pertinent part:

(2) Personal Jurisdiction Based on Contacts. A court of this state may

exercise personal jurisdiction over a person who acts directly or by an

agent as to any claim for relief arising from the person’s having such

contact with this state that the exercise of personal jurisdiction over the

person does not offend against traditional notions of justice or fair play

4
or the due process of law, under one or more of the following

circumstances:

. . . .

(D) committing a tort within this state, causing injury to

another person or property within or outside this state.

See also Ensign v. Bank of Baker, 2004 ND 56, ¶ 10, 676 N.W.2d 786. “Rule 4(b)(2)

is designed to permit state courts to exercise personal jurisdiction to the fullest extent

permitted by due process.” Ensign, at ¶ 10. Under N.D.R.Civ.P. 4(e)(1)(A), service

by publication is permitted if “the claim for relief is based on one or more grounds for

the exercise of personal jurisdiction under paragraph (2) of subdivision (b) of this rule

[N.D.R.Civ.P. 4(b)(2)].” Because Lupo’s claim against McNeeley arose as a tort

under N.D.R.Civ.P. 4(b)(2), service by publication was a permissible means to

effectuate service of process and therefore the courts of North Dakota had jurisdiction

over McNeeley even in her absence from the state. Other permissible means to

effectuate service on out-of-state defendants also exist under N.D.R.Civ.P. 4(d)(3)

which provides:

(3) How Service of Process Is Made Outside the State. Service

on any person subject to the personal jurisdiction of the courts of this

state may be made outside the state:

(A) in the manner as service within this state, with the

force and effect as though service had been made within this

state;

(B) under the law of the place where service is made for

service in that place in an action in any of its courts of general

jurisdiction; or

(C) as directed by court order.

Therefore, N.D.C.C. § 28-01-32 did not toll the six-year statute of limitations and

Lupo’s action was properly dismissed by the district court.

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IV

[¶9] We affirm the district court judgment.

[¶10] Lisa Fair McEvers

Daniel J. Crothers

Jerod E. Tufte

Jon J. Jensen

Gerald W. VandeWalle, C.J.

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