TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 11, 2012
RE: Rule 4, N.D.R.Civ.P., Persons Subject to Jurisdiction; Process; Service
Judge Nelson has requested that the committee take a look at N.D.C.C. § 39-01-11 and consider whether to include it in Rule 4.
N.D.C.C. § 39-01-11 deals with service on nonresident motor vehicle users. It provides that nonresidents who use roads in the state appoint the director of the DOT as their agent for service of process in any action growing out of a motor vehicle accident in the state. It provides a procedure for service on the DOT and establishes a fee for this service.
N.D.C.C. §§ 39-01-12, 39-01-13 and 39-01-14 support N.D.C.C. § 39-01-11 by establishing requirements for the plaintiff to provide notice of the service on the DOT, for the DOT to keep records of the service and for the defendant's rights to be protected when served in this manner. A copy of these statutes is attached.
The Supreme Court dealt with these statutes in Messmer v. Olstad, 539 N.W.2d 873 (N.D. 1995), a copy of which is attached. The case explains how the statutes work and how the plaintiff failed to make proper service under the statutes because he did not provide adequate proof that he mailed the N.D.C.C. § 39-01-12 notice.
These statutes deal tangentially with personal jurisdiction and directly with process and service, so they are "procedural" statutes that are subject to being superseded by court rule. A copy of Rule 4 is attached for the committee's review, but staff has not drafted any proposed amendments. The committee may wish to discuss whether it would be appropriate to integrate these statutes into Rule 4 and, if it decides to move forward with amendments, it may provide staff with guidance on what approach to take. Staff can then prepare draft amendments for consideration at the next meeting.