Carol M. Sieg, Appellant, v. Keith E. Karnes, Appellee, 693 F.2d 803 (8th Cir. 1982)

This case involves an appeal from an order of the district court for the district of South Dakota, the Honorable John B. Jones presiding, quashing service of process and dismissing the case.

Carol M. Sieg, a resident of South Dakota, was injured in an automobile accident with Keith E. Karnes, a resident of Iowa, on December 10, 1978, in Sioux Falls, South Dakota. On December 9, 1981, the last day before the South Dakota three-year statute of limitations would run,¹  counsel for Sieg filed a complaint with the clerk of the United States District Court for the District of South Dakota. The clerk immediately issued a summons, but delivered it to Sieg's attorney, John Meyer. Meyer, who is a South Dakota resident, personally served Karnes in the State of Iowa the same day the complaint was filed. The district court held that the service of process attempted by Sieg's attorney was invalid and dismissed the case.

Under South Dakota law, an "action is commenced as to each defendant when the summons is served on him...." S.D.Comp.Laws Ann. Sec. 15-2-30 (1967). Rule 3 of the Federal Rules of Civil Procedure specifies that a civil action is commenced by filing a complaint with the court. However, the Supreme Court, in Walker v. Armco Steel Corp., 446 U.S. 740, 744-53, 100 S. Ct. 1978, 1982-86, 64 L. Ed. 2d 659 (1980), held that a federal district court must apply state law that, for statute of limitations purposes, deems an action commenced only when service is made.²  See 4 C. Wright and A. Miller, Federal Practice and Procedure Sec. 1057 (Supp.1982). The issue before us on this appeal is whether the service of process on Karnes was validly made in accord with South Dakota law within the applicable period of limitations.

Rule 4(f) of the Federal Rules of Civil Procedure provides that extraterritorial service of process may be effected when authorized by the Federal Rules of Civil Procedure or other federal statutes.³  Rule 4(f) thus incorporates the provisions of rule 4(e) of the federal rules applicable to service upon nonresident parties or parties not found within the state. See Marsh v. Kitchen, 480 F.2d 1270, 1272 n. 6 (2d Cir. 1973); 2 J. Moore and J. Lucas, Moore's Federal Practice, p 4.32, at 4-352, 4-359, p 4.42, at 4-528 (2d ed. 1982). Rule 4(e) allows such service to be made "under the circumstances and in the manner prescribed" in a statute or rule of court of the state in which the district court is held.⁴ 

South Dakota long-arm statutes authorize service of process outside the state upon any person who commits an act which results in a tort action accruing within the state.⁵  South Dakota law also authorizes constructive or substituted service upon the Secretary of State of South Dakota to attain personal jurisdiction over nonresident motorists in any action arising from the use or operation of a car within the state.⁶  The South Dakota Secretary of State, however, was never served in this action.

Authority to effect service of process derives solely from acts of legislative bodies. See 2 J. Moore and J. Lucas, supra, p 4.32, at 4-352 n. 16 (citing cases). Personal service of process attempted by an unauthorized process server is invalid. See Axtell v. Rooks, 39 S.D. 31, 33, 162 N.W. 751, 751 (1917); Melin v. Aronson, 205 Minn. 353, 357, 285 N.W. 830, 832 (1939) (attorney lacked statutory grant to personally serve summons). Rule 4(c) of the Federal Rules of Civil Procedure delineates a limited class of persons who are authorized to make personal service of process for lawsuits in federal court. 2 J. Moore and J. Lucas, supra, p 4.32, at 4-360; see 4 C. Wright and A. Miller, Federal Practice and Procedure Sec. 1092 (1969). Amended in 1980 to include authorized state process servers, 2 J. Moore and J. Lucas, supra, p 4.08, the rule states:

Service of process shall be made by a United States marshal, by his deputy, or by some person specially appointed by the court for that purpose.... Service of process may also be made by a person authorized to serve process in an action brought in the courts of general jurisdiction of the state in which the district court is held or in which service is made.⁷ 

Authority to serve personal process under the law of South Dakota is statutorily granted to the following persons:

The summons may be served by the sheriff or a constable of the county or other comparable political subdivision where the defendant may be found, or in the District of Columbia by the United States marshal, or one of his deputies, or by any other person not a party to the action who at the time of making such service is an elector of the county or other comparable political subdivision in which such service is to be made.

Counsel for Sieg concedes that he was not specially appointed by the court to make service; moreover, he was not a marshal, deputy, sheriff, or constable of any governmental body, nor an elector of the applicable Iowa county at the time service was attempted. He asserts, however, that because he is authorized to make substituted service for nonresident motorists⁹  and, with court permission, service by publication,¹⁰  he is thus included within the language of federal rule 4(c) permitting service "by a person authorized to serve process in an action" brought in South Dakota state courts.

Federal rule 4(c), however, has been construed to designate persons authorized to make service only when the manner of service is personal. See 2 J. Moore and J. Lucas, supra, p 4.08, at 4-96 to -98. Under this construction, the categories of authorized process servers under rule 4(c) do not apply to substituted or constructive service permitted under federal law or the law of the state in which the district court is sitting. Id. In support of this principle, rule 4(e) specifically provides that service on out of state parties may be "under the circumstances and in the manner prescribed" in the applicable federal or state statute or rule. Such language implicitly endorses applicable means of nonpersonal service of process. 2 J. Moore and J. Lucas, supra, p 4.08, at 4-97. Moreover, the Advisory Committee's notes to the 1963 amendments to rule 4(d) (7) indicate approval of such a construction. Id. at 4-97, p 4.01, at 4-30.

With this understanding of the limited nature of the directives of rule 4(c), and without further clarification from the Advisory Committee,¹¹  we are unable to accept the contention that the intent underlying the 1980 amendments to rule 4(c) was to authorize personal service by anyone authorized to make substituted or constructive service under state law.

Sieg also argues that, even if the service was invalid, under section 15-2-31 of the South Dakota statutes, the attempted commencement of the suit is deemed equivalent to a commencement within the limitations period and triggered a 60-day extension period during which valid service of process could have been made. The explicit language of that statute, however, specifies that the extension is only granted when the summons is delivered, with the intent that it actually shall be served, to the sheriff or other officer of the county where the defendant resides.¹²  Since this delivery requirement was not met, we hold that this suit was not commenced before expiration of the statute of limitations.¹³ 

Unless a defendant voluntarily makes an appearance or waives defective service, a federal court is without jurisdiction to render personal judgment against a defendant if service of process is not made in accordance with applicable federal or state statutory requirements. 2 J. Moore and J. Lucas, supra, p 4.02, at 4-45, p 4.08, at 4-95 to -96, p 4.20, at 4-166; see Johnson v. Kusel, 298 N.W.2d 91, 93 (S.D.1980). This principle remains true despite any actual notice a defendant may have of the lawsuit. Horrigan v. State Farm Insurance Co., 106 Wis.2d 675, 680, 317 N.W.2d 474, 477 (1982); State v. Kaufman, 201 N.W.2d 722, 724 (Iowa 1972); cf. Chipperfield v. Woessner, 84 S.D. 13, 17, 18, 166 N.W.2d 727, 729-30 (1969) (attempted service by leaving summons with defendant's mother was nullity because it was not left at defendant's dwelling as statute required; court did not inquire whether actual notice was received).

We thus find that the attempted service of process was void, and the applicable statute of limitations expired as to this cause of action before suit was commenced. The order of the district court is therefore affirmed.