Josann M. Lupo, Plaintiff and Appellant
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
from the District Court of Stark County, Southwest Judicial
District, the Honorable William A. Herauf, Judge.
C. Sherer, Dickinson, ND, for plaintiff and appellant;
submitted on brief.
L. Lovas, Bismarck, ND, for defendant and appellee; submitted
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.
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.
In April 2018, following a February 10, 2018 publication of
the summons, McNeeley answered, raising the statute of
limitations as an affirmative defense and 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 six-year statute of
limitations. Lupo opposed the motion, arguing the action was
not time-barred 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. §
We review district court orders granting summary judgment as
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
Palmer v. 999 Quebec, Inc., 2016 ND 17, ¶ 6,
874 N.W.2d 303 (internal citations and ...