Lundquist v. South Dakota Board of Regents

Filing 16

OPINION AND ORDER denying 6 Motion for Joinder; granting 11 Motion to Dismiss. Signed by U. S. District Judge Roberto A. Lange on 11/4/11. (DJP)

FILED
NOV 04 2011
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JANET LUNDQUIST,
Plaintiff,
vs.
SOUTH DAKOTA BOARD OF
REGENTS,
Defendant.

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CIV 11-4098-RAL

OPINION AND ORDER
GRANTING DEFENDANT'S
MOTION TO DISMISS

Plaintiff Janet Lundquist ("Lundquist") filed this Complaint on July 13,2011, against
Defendant South Dakota Board of Regents ("Board of Regents"). A related case, involving the
same core facts and allegations, is Janet Lundquist v. University ofSouth Dakota Sanford School
of Medicine, CIV 09-4147-RAL ("Lundquist I"). In both cases, Lundquist alleged that her
employer failed to reasonably accommodate her disability contrary to the Americans with
Disabilities Act ("ADA") and then constructively discharged her through making her work
environment intolerable. Lundquist resigned her employment on July 24, 2008.
Lundquist sued the Board of Regents after learning, through a motion for summary
judgment, that the Board of Regents - rather than University of South Dakota Sanford School
of Medicine was the entity that Lundquist should have named, for reasons that this Court has
addressed in a separate opinion. Lundquist I (Doc. 36); See also Pushkin v. South Dakota State
University, 2010 WL 5089480 (D.S.D. Dec 8, 2010).
Lunquist then sought to serve the Board ofRegents within the time remaining under the
statute oflimitations. Lundquist also filed motions for joinder, more appropriately characterized
as motions for consolidation of cases, seeking to join the above-captioned case with the
underlying case of Lundquist I. See Sierra v. McGuinness, 2011 WL 332426 (E.D. Cal. 2011);
9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 2382 (3d ed.).
This Court recently granted summary judgment to USD Sanford School of Medicine,
both because it was not the proper defendant due to its lack of an ability to sue or be sued and
because, under the undisputed material facts viewed in the light most favorable to Lundquist,
summary judgment against Lundquist on the underlying claims was appropriate. Lundquist I

(Doc. 36).
The Board of Regents moves to dismiss this case, arguing that Lundquist failed to
effectuate proper service upon the Board ofRegents under Rule 4G) ofthe Federal Rules ofCivil
Procedure. Lundquist attempted to serve the Board ofRegents by having a sheriff deliver a copy
ofthe summons and complaint to the executive administrative secretary ofthe Board ofRegents.
Lundquist did not have the summons and complaint served upon the Attorney General for the
State of South Dakota.
When a defendant moves to dismiss for insufficient service, the plaintiffbears the burden
ofestablishing a prima facie case that proper service occurred. Northrup King Co. v. Compania
Productora Semillas Algodoneras Selectas, S.A., 51 F.3d 1383, 1387 (8th Cir. 1995). A motion
to dismiss under Rule 12(b)(5) is to be granted when a plaintiffs service of process was
insufficient. Karns v. Dix, 394 F.Supp.2d 1102, 1104 (D.S.D. 2005). This is because a defect
in service is jurisdictional: "Ifa defendant is improperly served, a federal court lacks jurisdiction
over the defendant." Printed Media Services, Inc. v. Solna Web, Inc., 11 F.3d 838, 843 (8th Cir.
1993). "This principle remains true despite any actual notice a defendant may have ofa lawsuit."
Seig v. Karnes, 693 F.2d 803, 807 (8th Cir. 1982).
Under Rule 4G) of the Federal Rules of Civil Procedure, a state-created governmental
organization like the South Dakota Board of Regents must be served by:
(A) delivering a copy ofthe summons and of the complaint to its
chief executive officer; or
(B) serving a copy ofeach in the manner prescribed by that state's
law for serving a summons or like process on such a defendant.
Fed.R.Civ.P.4G)(2). Lundquist served Barbara Christensen, the Board of Regents' executive
administrative secretary. Ms. Christensen is not the "chief executive officer" of the Board of
Regents. Thus, the service did not satisfy Rule 4(j)(A).
To satisfy Rule 4G), Lundquist must establish a prima facie case that she satisfied the
state law for serving the Board of Regents. In South Dakota, S.D.C.L. 15-6-4(d) prescribes the
manner for serving a state agency or institution. In relevant part, S.D.C.L. 15-6-4(d) provides:
(5) if the action is against a state or any of its institutions,
departments, or agencies, by service upon such officer or
employee as may be designated by the statute authorizing such
action, and upon the attorney general. ..

S.D.C.L. 15-6-4(d)(5). Even ifMs. Christensen could be considered under S.D.C.L. 15-6-4(d)(5)
as an appropriate officer to serve, Lundquist failed to serve the Attorney General of the State of
South Dakota. Thus, Lundquist cannot establish a prima facie case that service was appropriate
in this case under either part of Rule 4(j).
There exists an additional reason for dismissal of this case. This Court has determined
that summary judgment on the merits of Lundquist's claims was appropriate. Lundquist I (Doc.
36). In the above-captioned case, Lundquist brings the same claims as she did previously.
Indeed, this case simply sought to cure the naming ofan improper defendant. Because summary
judgment on the underlying claims is appropriate and has already been granted, dismissal ofthis
case would be merited, even if service of process had been performed properly on the Board of
Regents.
Therefore, it is hereby
ORDERED that Plaintiffs Motion for Joinder (Doc. 6) is denied. It is further
ORDERED that Defendant's Motion to Dismiss (Doc. 11) is granted.
Dated November 4, 2011.
BY THE COURT:

UNITED STATES DISTRICT JUDGE