Lupo v. McNeeley, et al.

Josann Lupo appealed a district court judgment dismissing her complaint with prejudice. A car accident involving Lupo and Brianna McNeeley occurred in Dickinson, North Dakota on August 17, 2009. At that time McNeeley had a Minnesota address. Lupo sued McNeeley in North Dakota district court in August 2015, certifying that she sent the complaint and summons to a process server for service on McNeeley at an address in Battle Lake, Minnesota. The record did not reflect that service of process was effectuated through a process server. On August 15, 2016, the court filed a notice of intent to dismiss, to which Lupo replied requesting the court allow the case to remain pending on the grounds that “service of process upon the Defendant, by publication, will be perfected on September 6, 2016, the date that the last publication of the Summons is set to run in the Dickinson Press.” In October 2017, the court again filed a notice of intent to dismiss to which Lupo again responded seeking the court allow the case to remain pending. After a status conference in November 2017, Lupo filed an affidavit of service by publication in January 2018, and an affidavit of publication in February 2018. In April 2018, following a February 10, 2018 publication of the summons, McNeeley answered, raising the statute of limitations as an affirmative defense and also asserting insufficiency of service of process. In April 2018, McNeeley moved for summary judgment, arguing Lupo’s action was time-barred by the applicable six- year statute of limitations. Lupo opposed the motion, arguing the action was not time- barred because McNeeley was not a resident of North Dakota at the time of the accident and therefore the limitations period was tolled under N.D.C.C. 28-01-32. Lupo submitted the police report from the accident as an exhibit which reflected that, at the time of the accident, McNeeley had a Minnesota address. The district court granted McNeeley’s motion, dismissing Lupo’s complaint with prejudice as a matter of law. The North Dakota Supreme Court agreed N.D.C.C. 28-01-32 did not toll the statute of limitations, and affirmed dismissal with prejudice. View "Lupo v. McNeeley, et al." on Justia Law