Sommervold v. Wal-Mart, Inc.

Filing 12

ORDER AND OPINION denying 4 Motion to Dismiss. Signed by Charles B. Kornmann on 11/9/11. (SKK)

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

NORTHERN DIVISION

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JON SOMMERVOLD,
Plaintiff,
-vsWAL-MART, INC.,
Defendant.

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CIV 11-1028

ORDER AND OPINION

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Pending before the court is a motion (Doc. 4) to dismiss this action for insufficiency of
service of process. The plaintiff had a private process server provide a copy of the summons and
complaint to an assistant manager at the Aberdeen, South Dakota, Wal-Mart store. This was
done on August 9, 2011. The statute of limitations expired on August 17, 2011. The confusion
here points out the folly of waiting until virtually the last minute to start a law suit.
The plaintiff's attorney knew that a resident agent, CT Corporation, had been appointed
by all Wal-Mart entities and was available for service of process in Pierre, South Dakota. Why
the resident agent was not served is unknown to the court. The fact that there were numerous
Wal-Mart entities would not generate any confusion. Plaintiff's claims to the contrary make no
sense. Any questions would have to do with naming the correct defendant as a party, not whether
the resident agent for all Wal-Mart entities in South Dakota should be served with process. The
contentions of the plaintiff to the effect that the sheriffs office in Pierre had, in another case,
taken one week to serve the summons and complaint is also a red herring. By virtue of SDCL
15-2-31, to toll the statute of limitations, one must only deliver the summons to the sheriff with
the intention to have it served and the sheriff must have had the summons in hand before the
statute runs. Thus, the sheriff in Pierre would have had 60 days after receiving the papers to
serve the papers. The red herring argument also ignores the fact that plaintiff's attorney used a
private process server in Aberdeen. He also could have used a private process server in Pierre if

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he was concerned about the Hughes County Sheriff's perfonnance.
Prior to February 25,2005, the effective date ofa new version of the then version of
SDCL 15-6-4(d), a plaintiff was pennitted by SDCL 15-6-4(d)(2) to serve a foreign corporation
(such as Wal-Mart) by leaving a copy of the summons with the president or other head of the
corporation, secretary, cashier, treasurer, a director or managing agent of such corporation. By
virtue ofSDCL 15-6-4(e), substituted service was authorized as to both domestic and foreign
corporations. Thus, as to any private corporation, if no general officer (whatever that meant),
director, managing agent, or other representative mentioned in 15-6-4(d) as qualified to receive
service could "conveniently be found", service could be made by leaving a copy of the summons
at the place of business of such qualified person with any officer or employee over fourteen years
ofage. Service as to a domestic private corporation was governed by SDCL 15-6-4(d)(l).
Since February 25, 2005, the requirements for service have changed. The revised version
covers all defined business entities, including, of course, both domestic and private corporations.
Service is to be made on the president, partner or other head ofthe entity, officer, director, or
registered agent. The revised statute provides that if "JmI" such person "cannot be conveniently
found", service may be made by leaving a copy "at any office of such business entity within this
state, with the person in charge of such office." Why the word "any" was substituted for "no", I
do not know. Obviously, it is highly unlikely that all officers and directors of most large foreign
corporations, such as Wal-Mart, are going to be found in South Dakota. That is precisely the
reason that such corporations appoint resident agents. The present version allows substituted
service, for example, as to Wal-Mart ifone of the directors or officers cannot be found in South
Dakota. Common sense tells us that such will always be the case as to large multi-state
corporations. There is, however, nothing in the record before the court to show that all officers
and directors ofWal-Mart can or cannot conveniently be found in South Dakota. Again, ifany
one of the persons named cannot conveniently be found in South Dakota, the service here was
valid if the assistant manager in Aberdeen was "the person in charge of such office." I note that
the statute says "the person" and not "a person." Are there more than one assistant managers at
the store in Aberdeen? Is there any "pecking order" among or between such assistants? Was the
store manager on duty at the time of service? Was the person served actually in charge of the
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store? Does the statute require service on the highest ranking employee of the business
regardless of who is on duty at the time of service? The record does not reveal answers to any of
these questions.
Plaintiff attempts to create a different statute, utilizing parts ofthe old version and parts
ofthe new version. This, of course, is not to be permitted. When language is clear, it is the
responsibility of the court to read and apply the statute or the rule as written.
The question then becomes: was the person served (apparently an assistant manager of
the Aberdeen store) "the person in charge of such office"? This is largely a factual issue or
perhaps a mixed question of law and fact. Factual issues cannot be determined under a motion to
dismiss. In addition, a motion to dismiss cannot be converted to a summary judgment motion
without proper notice to all parties with the opportunity to be heard.
The motion should be denied under the present state of the record.
Now, therefore,
IT IS ORDERED that the motion to dismiss (Doc. 4) is denied.

Dated at Aberdeen, South Dakota, thiS~daY ofNovember, 2011.
BY THE COURT:

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United States District Judge
ATTEST:
JOSEPH HAAS, CLERK

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DEPUT

(SEAL)

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