Sandra Fredericks v. John D. Elliot

LAY, Chief Judge,

dissenting.

I respectfully dissent. I would find that the plaintiff has substantially complied with the service of process under the South Dakota statute. There exists no rational basis to deny plaintiff her day in court simply because her attorney mailed the notice of service to the Secretary of State at the same time he notified the defendant. The defendant was provided with proper notification of the claim and the court in which he was sued. It constitutes a complete miscarriage of justice to deny plaintiff her day in court on an alleged technical violation of the statute.

Although the majority is correct in stating that the Supreme Court of South Dakota has not interpreted the statutory provision involved,1 the South Dakota court has on several occasions upheld the validity of summonses which were not in technical compliance with the authorizing statutes. See e.g., Gifford v. Bowling, 86 S.D. 615, 200 N.W.2d 379 (1972), Hartley v. Jerry’s Radio & Electric Shop, 74 S.D. 87, 48 N.W.2d 925 (1951). In Hartley, the South Dakota court gave guidelines for construing the state process statutes. The court stated:

The objects to be accomplished by process are to advise the defendant that an action or proceeding has been commenced against him by plaintiff, and to warn him that he must appear within a time and at a place named and make such defense as he has, and in default of his so doing, that judgment against him will be applied for or taken in a sum designated, or for relief specified. If the summons actually issued *525accomplishes these purposes, it should be held sufficient to confer jurisdiction, though it may be irregular and not containing other statements required by the statute. ... It is sufficient in any case that the process is regular enough to inform the defendant of the nature of the proceedings against him, of the interest he has in them and of the court where the hearing will take place.

Hartley v. Jerry’s Radio & Electric Shop, supra, 48 N.W.2d at 927 (emphasis added) (quoting Freeman on Judgments, 5th Ed., § 341).

Though serious defects in service should not be tolerated, we also should not be blind to the realities of the case. Here, the South Dakota Secretary of State did receive the summons and complaint and the defendant admits subsequent receipt of notice of the service. The defendant would in no way have received “more” notice had the plaintiff handed the summons to the Secretary of State instead of mailing it to the office. However, this is apparently just what the district court finds lacking in, and fatal to, the plaintiff’s cause of action.2

The majority states that “in the absence of a definitive statement by South Dakota courts concerning the provision in question we are unwilling to reverse the district court’s interpretation of the language of the statute.” However, in granting the summary judgment motion without opinion, the district court has given us no “interpretation” to examine and approve. The majority merely follows the district court’s decision and neither court gives the plaintiff a reason for her claim now being void. As this court stated in Luke v. American Family Mutual Insurance Co., 476 F.2d 1015 (8th Cir.1973), cert. denied, 414 U.S. 856, 94 S.Ct. 158, 38 L.Ed.2d 105 (1973), although this court may provide deference to determinations of local law by a federal district judge, “a court of appeals cannot be irrevocably bound by a district judge’s choice of one of two or more alternative rules to follow in a diversity case. To hold otherwise would be to abdicate our appellate responsibility.” Luke, supra, at 1019-20. In that same case, we quoted with approval the language of a Fifth Circuit case stating that in the court of appeals, the “parties are entitled to review ... of the trial court’s determination of state law just as they are of any other legal question in a case.” Luke, supra, at 1019 n. 6. (quoting Freeman v. Continental Gin Co., 381 F.2d 459, 466 (5th Cir.1967)). This court should not give special weight or deference to a district court’s opinion where no analysis or review is demonstrated. Furthermore, no special deference is deserving where analysis discloses a more reasoned result.

I would reverse the district court, uphold the service of process as substantial compliance with the law, and allow plaintiff her day in court.

. Statutory interpretation problems such as the one in the instant case might be prevented by legislative clarification of the statute involved. See Bomann Golf, Inc. v. Cosmos Industries, Inc., 459 F.2d 1090, 1092 (5th Cir.1972) (the Florida legislature revised a process statute which allowed service on the Secretary of State “provided, that notice of such service ... [is] forthwith sent by the plaintiff” to read “Notice of service ... shall be sent forthwith”).

. The letter mailed to the defendant reads as follows:

This is to inform you that on this date we have forwarded duplicate copies of the enclosed summons, complaint, affidavit of compliance with SDCL § 15-7-7, and certificate of service to the secretary of state of the State of South Dakota. The undersigned represents Sandra Fredericks, the plaintiff in this action. This action arises out of an automobile-pedestrian accident in which you were involved on August 26, 1979, in Yank-ton, South Dakota.
In order to make you a defendant in this action, this office has made service of the enclosed summons and complaint on the secretary of state of South Dakota, as provided by South Dakota statute. The purpose of this letter is to inform you that you are now involved in this lawsuit, and jurisdiction has been obtained over you by serving the Secretary of State.

Record at 019.