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  1. #1
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    Nov 2010
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    Default Party That Performed Service Unavailable to Sign Affidavit

    My question involves court procedures for the state of: MN

    (Poster is pro se defendant to civil action.)

    I had a relative (per Minn. R. Civ. P. 4.02) serve my Answer to Plaintiff's atty by mail. Notary was unexpectedly unavailable, so we couldn't complete an Affidavit of Service (AOS) that day (which was also the last day of the Answer deadline. Answer was filed w/court prior to service.) Minn. R. Gen. Pract. 7 provides that an AOS can be filed within 10 days after service so presumably I still have time. Problem is my relative is now unavailable. If I can't get him to sign the AOS in time, what do I do?

    I don't know if this is mitigating in my favor, but Plaintiff served their Complaint by publication (citing Minn. R. Civ. P. 4.04(a)(1)), w/o actually publishing it. (As far as I can tell anyway, since there's no AOS from a legal newspaper.) They state my correct service address (an agent, not my home) in their affidavit but they never tried service by mail per Minn. R. Civ. P. 4.05.

    I'm also wondering how Minn. R. Civ. P. 4.06 might pertain to either side's service ("Failure to make proof of service shall not affect the validity of the service.")

    Thanks for any help.

  2. #2
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    Sep 2013
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    Default Re: Party That Performed Service Unavailable to Sign Affidavit

    Larsen v. CITY OF SPICER, Minn: Court of Appeals 2009

    Proof of Service

    The district court also cited the following defects in appellant's proof of service as a basis for its conclusion that appellant failed to comply with statutory requirements: (1) the "Notice of Appeal" was not filed with an affidavit of service; (2) the proof of service incorrectly stated that appellant mailed her notices to the city clerk, when they were hand-delivered; and (3) the proof of service erroneously stated that the "Notice of Appeal" was served on the city clerk, when copies of the property assessment forms with appellant's handwritten notation were actually served.
    The Minnesota Rules of Civil Procedure "reflect a well-considered policy to discourage technicalities and form . . . they should be liberally construed in the interests of justice." Love v. Anderson, 240 Minn. 312, 314, 61 N.W.2d 419, 421 (1953). The rules are "designed to effect the settlement of controversies upon their merits rather than to terminate actions by dismissal on technical grounds." Ind. Sch. Dist. No. 273 v. Gross, 291 Minn. 158, 165, 190 N.W.2d 651, 656 (1971).
    Minn. R. Civ. P. 4.06 states that "Service of summons and other process shall be proved . . . by the affidavit of any other person making it . . . Failure to make proof of service shall not affect the validity of the service." (Emphasis added). The rule clearly states that failure to file an affidavit will not affect the validity of service. Respondent does not deny that it was served and we have found that service was effective as to four of the properties. Appellant's failure to make proof of service did not affect the validity of service. Thus, it was error for the district court to dismiss appellant's appeal on this ground.
    Affirmed in part, reversed in part, and remanded.


  3. #3
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    Mar 2013
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    Default Re: Party That Performed Service Unavailable to Sign Affidavit

    I think you asked the same question on Findlaw and I'll give you the same answer I gave over there.

    Hire a private process server and get it right.

    Stop relying on amateurs for service.

    Do you want to spend the next few years and many thousands litigating a point that you can put to rest right now for less than $100?

  4. #4
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    May 2013
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    125

    Default Re: Party That Performed Service Unavailable to Sign Affidavit

    You did NOT need a process server in this instance.
    Nor did you need a relative to mail service. You could have mailed the answer yourself.

    Which indicates your greater need for an attorney than a process server.

    Filing and serving an ANSWER to a summons does not fall under the rules of Service or Process or Summons. Minn. R. Civ. P. 4.02 does not apply to you.

    All you really had to do was file it on time, and include a certificate of service with your signature stating your method of service and the date of service. Which is often mailed the same day it is filed.

  5. #5
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    Nov 2010
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    8

    Default Re: Party That Performed Service Unavailable to Sign Affidavit

    Quote Quoting gator1
    View Post
    Filing and serving an ANSWER to a summons does not fall under the rules of Service or Process or Summons. Minn. R. Civ. P. 4.02 does not apply to you.
    I'm going by the court-provided Answer/Counterclaim instructions (form CIV301) found here:
    http://www.mncourts.gov/default.aspx...=packetDetails

    Which calls for service to be performed by an uninvolved adult, as well as a notarized affidavit. (I assumed it's based on RCP 4.02 because the requirements appear to be identical.) The instructions are dated 3/11, if the footer is accurate. Have the rules changed since then? If not, then why don't the instructions conform to the Rules?

  6. #6
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    Default Re: Party That Performed Service Unavailable to Sign Affidavit

    There seems to be confusion here over the difference between serving the original complaint, and service of subsequent pleadings or papers.

    When a case is commenced, service of process is subject to more stringent rules because it's important that the defendant (with few exceptions) receive personal service of the lawsuit so that he knows he is being sued, and can appear and defend.

    Once that has occurred, most documents can be served by first class mail. The person serving the papers or pleadings will ordinarily file a proof of service with the court (what Minnesota is referencing as an affidavit of service) which, when properly filed, creates a presumption that the other party was served with the documents it lists, in the manner it describes. Welfarelvr is correct that the failure to file proof of service does not mean that a document wasn't properly served or that the case can't move forward - but it creates a risk that the party served will deny receiving the document. (That can happen anyway, but at least with filed proof of service you have a presumption of service on your side.) Anybody litigating a case should familiarize himself with the rules of court, and the rule mentioned in the case quoted above can be found in the civil rules.

    If you're worried that the plaintiff will deny receipt of the documents, serve a second copy - this time using a third party who is available to promptly complete the affidavit of service to be filed with the court.

    I don't see a specific definition of 'process' within the court rules that treats an answer to a complaint as something that is subject to Rule 4.02, but as the linked instructions suggest that the rule applies, it's quite possible that the requirement flows from a different part of the larger set of court rules or from a statute, or from the manner in which the courts of the state have chosen to interpret the court rules. (Or I may have overlooked something.)

  7. #7
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    Default Re: Party That Performed Service Unavailable to Sign Affidavit

    The instructions call for the Answer to be served by mail (or hand delivered) by somebody other than the Defendant and the Affidavit of Service must be notarized.

    "You are responsible for arranging to have the Answer served but you must get someone else to do the service. Anyone over the age of 18 who is not involved in the lawsuit can serve the papers by mail or by personal service (hand delivered). You can ask a friend to serve the papers, or hire the Sheriff or a private process server."

    "A copy of your Answer is placed in an envelope addressed to the Plaintiff’s attorney (or the Plaintiff, if there is no attorney) with your return address on the envelope and is then sent by First-Class Mail. The server must drop the letter in the mailbox or give it to the postal worker."

    "After the Answer is hand delivered or mailed, the person who did the service must fill out an Affidavit of Service form and sign in front of a notary."

    While a private process server is optional, the OP has certainly screwed up the service by not having a notarized affidavit and, you're right, the OP needs to have it served all over again and make sure the server provided a notarized affidavit of service.

    Getting another amateur to serve the Answer risks getting it screwed up all over again. But that's up to the OP.

  8. #8
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    Default Re: Party That Performed Service Unavailable to Sign Affidavit

    If the other party acknowledges service, directly or through subsequent action in court, then the issue becomes moot, but at present it does not appear that service has been acknowledged.

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