John M. Hughes, Plaintiff and Appellant
Olheiser Masonry, Inc., Curt Olheiser, and Harley D. Rapp, Defendants and Appellees
from the District Court of Stark County, Southwest Judicial
District, the Honorable James D. Gion, Judge.
C. Sherer, Dickinson, ND, for plaintiff and appellant.
T. Bakke (argued) and Randall J. Bakke (on brief), Bismarck,
ND, for defendants and appellees.
John Hughes appeals from a district court order dismissing
his negligence action. On appeal, Hughes argues mailing of a
summons and complaint to the sheriff's department should
be treated as delivery for purposes of commencing his civil
action. We affirm the district court's order.
On May 24, 2012, Harley Rapp, who was employed by Olheiser
Masonry, and John Hughes collided in a forklift and motor
vehicle accident. Rapp was driving a forklift and Hughes was
driving a pickup truck. Hughes filed a complaint with the
district court on May 22, 2018, alleging injuries as a result
of the negligence of Rapp, Curt Olheiser, and Olheiser
Masonry. Hughes mailed his complaint and summons to the Stark
County Sheriff's Department the same day, requesting the
documents be served on the defendants.
The Stark County sheriff's department did not receive the
documents until May 31, 2018. Olheiser, Olheiser Masonry, and
Rapp were served by the sheriff's department on June 1
and 2, 2018. On October 11, 2018, Olheiser, Olheiser Masonry,
and Rapp filed a motion to dismiss arguing the action was not
commenced until after the statute of limitations expired. The
district court granted the motion to dismiss and concluded
the action was not commenced until after the statute of
limitations expired because the Stark County sheriff's
department did not receive the summons until May 31, 2018.
On appeal, Hughes argues the district court erred by granting
the motion to dismiss. Specifically, Hughes argues mailing of
a summons and complaint should be treated as delivery under
N.D.C.C. § 28-01-38, which provides an exception to the
statute of limitations.
The district court concluded it did not have jurisdiction
because service was outside the statute of limitations.
An action barred by a statute of limitations generally is
dismissed under the summary judgment standards of
N.D.R.Civ.P. 56. Summary judgment "is a procedural
device for the prompt resolution of a controversy on the
merits without a trial if there are no genuine issues of
material fact or inferences that can reasonably be drawn from
undisputed facts, or if the only issues to be resolved are
questions of law." Whether summary judgment is properly
granted is a question of law which we review de novo on the
In re Estate of Nelson, 2015 ND 122, ¶ 6, 863
N.W.2d 521 (internal citations omitted).
Under N.D.C.C. § 28-01-16(5), a negligence action that
resulted in personal injury must be commenced within six
years. See Calavera v. Vix, 356 N.W.2d 901 (N.D.
1984). The accident occurred on May 24, 2012, and it is
undisputed the claim expired May 24, 2018, absent some
applicable exception or tolling of the statute of
limitations. It is also undisputed the complaint was filed
with the district court on May 22, 2018. Filing of a
complaint in the district court does not commence an action
in North Dakota. Under N.D.R.Civ.P. 3 "[a] civil action
is commenced by the service of a summons." North
Dakota's rule differs from Fed.R.Civ.P. 3, which ...