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Lupo v. McNeeley

Supreme Court of North Dakota

April 11, 2019

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

          Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable William A. Herauf, Judge.

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

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

          OPINION

          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 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. § 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.

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


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