United States District Court, D. Nebraska
MICHAEL D. NELSON UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on defendant Jeffery
Clark's Motion to Dismiss or Quash (Filing No. 67)
pursuant to Fed.R.Civ.P. 12(b)(5). Clark did not file a brief
or index of evidence in support of his motion,  and Plaintiff did
not file any opposition to the motion. For the following
reasons, the Court will deny the motion.
filed this action on April 2, 2019, against Clark and ten
other defendants, seeking damages arising out of a multiple
vehicle collision on I-80 in Hamilton County, Nebraska.
(Filing No. 1). On June 10, 2019, the clerk of court issued
Plaintiff's requested summons for Clark at an address in
Aurora, Colorado. (Filing No. 5 at pp. 13-14). Plaintiff did
not return the summons or otherwise show that Clark had been
served, so on August 5, 2019, the Court entered an order
requiring Plaintiff to show cause why the case should not be
dismissed pursuant to Fed.R.Civ.P. 4(m), as more than 90-days
had passed since Plaintiff filed the Complaint. (Filing No.
27). In response to the Order to Show Cause, Plaintiff's
counsel represented to the Court that he believed he had a
current address for Clark and requested leave to file an
alias summons. (Filing No. 36). The Court granted
Plaintiff's request and extended the service of process
deadline for Clark to September 23, 2019. (Filing No. 37).
August 19, 2019, the clerk issued Plaintiff's requested
Amended Summons to Clark at an address in South Bend,
Indiana. (Filing No. 38). On September 19, 2019, Plaintiff
returned that summons unexecuted. (Filing No. 50). On the
same date, the clerk issued Plaintiff's third requested
summons to Clark, “C/O BECO, INC.” at an address
in New Salem, North Dakota. (Filing No. 51). Defendant BECO,
Inc. is Clark's employer. (Filing No. 52 at ¶ 8;
Filing No. 58 at ¶ 3). On September 23, 2019, Plaintiff
returned that summons executed. (Filing No. 53).
Plaintiff's proof of service indicates the summons was
sent by certified mail to BECO's home office New Salem,
North Dakota, and the return receipt was signed by “E.
Hoovestol” on the same date. (Filing No. 53; Filing No.
67). Clark, through counsel for BECO, filed the instant
motion on October 9, 2019, asking the Court to quash the
summons or dismiss the action against him because he has not
waived service and was not served in a manner acceptable
under Fed.R.Civ.P. 4(c) or (e). (Filing No. 67).
district court does not have jurisdiction over an improperly
served defendant, “whether or not [the defendant] had
actual notice of the lawsuit.” Adams v.
AlliedSignal Gen. Aviation Avionics, 74 F.3d 882, 885-86
(8th Cir. 1996)(citing Printed Media Servs., Inc. v.
Solna Web, Inc., 11 F.3d 838, 843 (8th Cir. 1993)). Rule
4(e) provides that an individual may be served by
“following state law for serving a summons . . . in the
state where the district court is located or where service is
made, ” Fed.R.Civ.P. 4(e)(1), or by “delivering a
copy of the summons and of the complaint to the individual
personally, ” “leaving a copy of each at the
individual's dwelling or usual place of abode . .
.” or by “delivering a copy of each to an agent
authorized by appointment or by law to receive service of
process, ” Fed.R.Civ.P. 4(e)(2).
chose to serve Clark by certified mail in North Dakota.
Nebraska law permits service of an individual by certified
mail, return receipt requested. See Neb. Rev. Stat.
§§ 25-505.01(1)(c) & 25-508.01. The statute
“does not require service to be sent to the
defendant's residence or restrict delivery to the
addressee, ” and therefore certified mail may be sent
to the defendant's place of employment and be signed for
by another employee. Anthony K. v. State, 534, 855
N.W.2d 802, 811 (Neb. 2014); see also John Lenich, Nebraska
Practice Series, Civil Procedure, Service on
individuals-Certified mail service, 5 Neb. Prac., Civil
Procedure § 10:9 (West 2019)(“There is no
requirement in the statute that the papers be sent to the
defendant's residence. Therefore, they can be sent to the
defendant's place of employment if the sender chooses to
do so. Likewise, there is no requirement that the sender use
restricted delivery. Therefore, the papers can be signed for
by someone other than the defendant.”). Nevertheless,
“due process requires notice to be reasonably
calculated to apprise interested parties of the pendency of
the action and to afford them the opportunity to present
their objections.” Anthony K., 855 N.W.2d at
complied with Nebraska law by sending the summons and
complaint by certified mail to Clark's employer and
filing a signed return receipt. And, the Court concludes from
the record that due process has been satisfied. BECO has
admitted Clark is its employee, (Filing No. 52 at ¶ 8;
Filing No. 58 at ¶ 3), and further admits that Clark was
driving a BECO semi-trailer and was acting within the scope
of his employment with BECO at the time of the accident at
issue in this litigation, (Filing No. 52 at ¶¶
30-33; Filing No. 58 at ¶ 17). Etheleen Hoovestol is
BECO's agent who accepted service in this case on behalf
of BECO at the same address in New Salem where Clark was
served. (Filing No. 5 at p. 15). BECO's counsel filed the
instant motion on behalf of Clark sixteen days after
Hoovestol received the summons. (Filing No. 67). Given
BECO's admissions, the Court finds that Plaintiff's
service of process to BECO's agent was reasonably
calculated to apprise Clark of the pendency of this action.
North Dakota law permits service by “any form of mail
or third-party commercial delivery addressed to the
individual to be served and requiring a signed receipt and
resulting in delivery to that individual.” N.D. R. Civ.
P. 4(d)(2)(A) (emphasis added). “[A] rebuttable
presumption of valid service of process arises when a return
receipt for certified mail is signed, and that the signator,
if not the addressee, will be presumed to have acted as the
agent of the addressee authorized to accept service in the
absence of proof to the contrary.” Monster Heavy
Haulers, LLC v. Goliath Energy Servs., LLC, 883 N.W.2d
917, 924 (N.D. 2016). Once the plaintiff presents a prima
facie case of valid service via a signed certified mail
receipt-even if the signator is not the addressee-the burden
shifts to the individual contesting service to “to
present facts and documentation to establish service of
process was insufficient.” Id. at 926.
filed a signed certified mail receipt, which is prima facie
evidence of valid service under North Dakota law. Clark did
not present any evidence in support of his motion. Nor does
Clark actually claim Etheleen Hoovestol was unauthorized to
accept service on his behalf-the motion merely states
Plaintiff did not allege she was Clark's agent.
Therefore, Clark has failed to rebut the presumption that he
was validly served by certified mail under North Dakota law.
Accordingly, IT IS ORDERED that Defendant
Jeffrey Clark's Motion to Dismiss or Quash (Filing No.
67) is denied. Defendant Jeffrey Clark shall file a
responsive pleading to the Amended Complaint (Filing No. 52)
on or before November 19, 2019.
 “A motion raising a substantial
issue of law must be supported by a brief filed and served
together with the motion.” NECivR. 7.1(a)(1). “If
a motion requires the court to consider any factual matters
not stated in the pleadings, when filing the supporting brief
the moving party must also file and serve supporting