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Key Energy Services, LLC v. Ewing Construction Co., Inc.

Supreme Court of North Dakota

May 9, 2018

Key Energy Services, LLC, Plaintiff and Appellee
v.
Ewing Construction Co., Inc., Defendant and Appellant and Bridger Construction Services, Inc.; Jensen & Son Construction, Inc.; Oil-Well Lubricant Dispense Systems, Inc.; Crane-Tec, Inc.; The Sherwin-Williams Company; Harper Ready Mix Company; Gaston Engineering & Surveying, P.C.; Selid Plumbing and Heating, Inc.; Distribaire, Inc.; Alliance Steel, Inc.; Ahern Rentals, Inc.; Cal's Carpet Inc.; Wagner Concrete Corp.; Fargo Glass & Paint Company; Alpha Overhead Door, Inc.; Warner Enterprises, Inc. d/b/a Energy Electrical Distribution Co.; KLE Construction LLC; C4, LLC; Dakota Fire Protection, Inc.; WE Integrage, LLC; James Dean McMains d/b/a D & M Steel Buildings; and all other persons unknown claiming any estate or interest in, or lien or encumbrance upon, the property described in the complaint, Defendants

          Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Benjamen J. Johnson, Judge. AFFIRMED.

          Monte L. Rogneby (argued), Bismarck, N.D., and Caren L. Stanley (on brief), Fargo, N.D., for plaintiff and appellee.

          Scott K. Porsborg (argued) and Austin T. Lafferty (appeared), Bismarck, N.D., and John T. Runde (on brief), Corpus Christi, Texas, for defendant and appellant.

          OPINION

          Tufte, Justice.

         [¶ 1] Ewing Construction Co., Inc., appeals from a judgment denying its N.D.R.Civ.P. 60(b) motion to vacate a $951, 191.62 default judgment entered in favor of Key Energy Services, LLC. Because the district court did not err in ruling service of process was proper and did not abuse its discretion in denying the motion to vacate, we affirm.

         I

         [¶ 2] Ewing is a Texas corporation with its principal place of business in Houston, Texas. Bill Ewing, Jr., is its CEO. In 2012 Ewing began serving as the designer of and general contractor for Key's construction of the P3 Service Center project in Williston. Ewing voluntarily canceled its North Dakota contractor license in October 2014. In January 2015, Key sued Ewing and 22 others to invalidate construction liens filed against its property and claiming Ewing failed to pay numerous subcontractors for their work on the project in violation of its contractual obligations. After Ewing failed to answer the complaint, Key moved in June 2016 for a default judgment against Ewing. The district court granted the motion and entered default judgment against Ewing, awarding Key $951, 191.62. The default judgment was entered on June 24, 2016, and Key served notice of entry of judgment on June 27, 2016.

         [¶ 3] On May 12, 2017, after attempts were made to enforce the default judgment in Texas, Ewing brought a N.D.R.Civ.P. 60(b) motion to vacate the default judgment "because of insufficient service of process, and excusable neglect." Key responded by filing a corrected return of service which the district court accepted and considered. The corrected return of service was notarized and identified the documents served. On July 28, 2017, the court denied the N.D.R.Civ.P. 60(b) motion, concluding service of process was sufficient, the motion was untimely, and Ewing failed to establish excusable neglect.

         II

         [¶ 4] Ewing argues the district court erred in denying the motion for relief from the default judgment because of improper service of process in the original action and because he established mistake, inadvertence, surprise, or excusable neglect.

         A

         [¶ 5] Ewing argues the district court lacked jurisdiction to enter the default judgment because of improper service of process.

         [¶ 6] Under N.D.R.Civ.P. 4(d)(3)(A), service of process outside North Dakota may be accomplished in the same manner as service within this state. See Monster Heavy Haulers, LLC v. Goliath Energy Servs., LLC, 2016 ND 176, ¶ 13, 883 N.W.2d 917. Ewing's sole claim is that the sheriff's return of service was inadequate because under N.D.R.Civ.P. 4(j)(1), the "certificate, affidavit... must state the date, time, place, and manner of service." Ewing argues the original return of service ...


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