Manypenny v. United States

125 F.R.D. 497, 1989 U.S. Dist. LEXIS 4135, 1989 WL 38268
CourtDistrict Court, D. Minnesota
DecidedApril 10, 1989
DocketCiv. No. 4-86-770
StatusPublished
Cited by6 cases

This text of 125 F.R.D. 497 (Manypenny v. United States) is published on Counsel Stack Legal Research, covering District Court, D. Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Manypenny v. United States, 125 F.R.D. 497, 1989 U.S. Dist. LEXIS 4135, 1989 WL 38268 (mnd 1989).

Opinion

ORDER

DOTY, District Judge.

This case concerns the rights to parcels of land constituting the White Earth Reservation. Plaintiffs are persons who are members of the White Earth Band of Chippewa Indians and beneficiaries of land allotments on the White Earth Reservation. They seek declaratory, injunctive, and monetary relief against the United States, the Department of the Interior (DOI), the Secretary of the Interior, and the Assistant Secretary for Indian Affairs; the State of Minnesota and its Commissioner of Revenue; the counties of Becker, Clearwater and Mahnomen; and numerous named and unnamed individual holders of, or claimants to, the disputed land. The historical and factual background of this case are set forth in greater detail in this Court’s earlier Order dated February 12, 1988.

This matter is currently before the Court upon the motion of the defendant counties for dismissal of the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) and Fed. R.Civ.P. 12(b)(7). This matter is also before the Court upon various individual defendants’ motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(5); Fed.R.Civ.P. 12(b)(6); and Fed.R.Civ.P. 12(b)(7).

DISCUSSION

I. Insufficient Service of Process

Individual defendants Albin and Marlene Scherping, Allen and Geraldine Aanerud, Douglas and Joan Kramer and Richard and Agnes Swiers have moved to dismiss the Amended Complaint for insufficiency of service of process, contending that plaintiffs failed to comply with the requirements set forth in Fed.R.Civ.P. 4(c)(2)(C)(ii). That Rule provides in part:

A summons and complaint may be served upon a defendant ... by mailing a copy of the summons and the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgement conforming substantially to form 18-A and a return envelope, postage prepaid, addressed to the sender. If no acknowledgement of service under this subdivision is received by the sender within 20 days after the date of mailing, service of the summons and complaint shall be made under subparagraph (A) or (B) of this paragraph____

Defendants contend that plaintiffs’ attempt to serve them by mail was defective because plaintiffs failed to provide two copies of a notice and acknowledgement conforming substantially to form 18-A. Even if plaintiffs had included the proper forms with the Summons and Amended Complaint, defendants contend that service was ineffective because personal service was not made despite the fact that, other than signed certified mail return receipts from the mailing envelope, plaintiffs had not received acknowledgement of service within 20 days after the date of mailing.

Under Rule 4(c)(2)(C)(ii) it is unclear whether service is sufficient if the defendants have actual notice or whether an acknowledgement form must be returned in order for service to be sufficient. Although the Eighth Circuit has not ad[499]*499dressed the issue, a majority of the courts that have addressed this issue have held that the Rule’s requirements are explicit and that the legislative history indicates that Congress intended that service would be ineffective if the acknowledgement form or a substantially similar writing were not returned.1 In many of these cases, the courts held that service was ineffective although certified mail return receipts had been signed and returned by defendants. E. g., Combs v. Nick Garin Trucking, 825 F. 2d 437 (D.C.Cir.1987) (return of acknowledgement form required for effective service despite the fact that certified mail return receipt was returned); Green v. Humphrey Elevator and Truck Co., 816 F.2d 877 (3d Cir.1987); United States v. Gluklick, 801 F.2d 834 (6th Cir.1986) (return of acknowledgement form required for effective service despite fact that certified mail return receipt was signed and returned), cert. denied, 480 U.S. 919, 107 S.Ct. 1376, 94 L.Ed.2d 691 (1987); Delta Steamship Lines, Inc. v. Albano, 768 F.2d 728 (5th Cir.1985) (same); Armco, Inc. v. Penrod-Stauffer Building Systems, Inc., 733 F.2d 1087 (4th Cir.1984) (same); Guth v. Andersen, 118 F.R.D. 502 (N.D.Cal. 1988); Bernard v. Strang Air, Inc., 109 F.R.D. 336 (D.Neb.1985) (return of acknowledgement form required for effective service despite fact that certified mail return receipt was signed and returned and despite the fact that plaintiff was pro se); Henry v. Glaize Maryland Orchards, 103 F.R.D. 589 (D.Md.1984) (return of acknowledgement form required for effective service despite fact that certified mail return receipt was signed and returned); but see, Morse v. Elmira Country Club, 752 F.2d 35 (2nd Cir.1984); Lee v. Carlson, 645 F.Supp. 1430 (S.D.N.Y.1986) (service effective even though no acknowledgement form or return envelope), aff'd, 812 F.2d 712 (2nd Cir.1987). Based upon a review of the explicit language of the statute and the legislative history, this Court concludes that the majority interpretation is the correct interpretation of Fed.R.Civ.P. 4(c)(2)(C)(ii). Accordingly, on the facts of this case, plaintiffs’ attempted service of process was ineffective if made under Rule 4(c)(2)(C)(ii).

Plaintiffs assert, however, that service of copies of the Summons and Amended Complaint on the individual defendants was not made pursuant to Fed.R.Civ.P. 4(c)(2)(C)(ii), was done properly under Minnesota law and, therefore, was effective. According to plaintiffs, it is clear that the individual defendants actually received copies of the Summons and Amended Complaint and, in fact, acknowledged receipt by signing return receipt forms provided by the United States Post Office. Plaintiffs assert that this form of acknowledgement is acceptable under Rule 4.05 of the Minnesota Rules of Civil Procedure, the Rule under which plaintiffs attempted service.

Service in accordance with Minnesota law is authorized by Fed.R.Civ.P. 4(c)(2)(C)(i) as an alternative to service under Fed.R.Civ.P. 4(c)(2)(C)(ii).

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Marvin Manypenny, Margaret Norcross, Seraphine Rock, Theodore Hoagland, Leroy Nelson, George McDonald Dorothy Brown, John Brown, Maggie Weaver, Winona Laduke, Sun Bear (A/k/a Vincente Laduke), Shirley Laduke, Clifton Laduke, George Peake, Jr., David Peake, Lesley Bellecourt, Fred Weaver, Earl Peabody, Maji Gabo, A/K/A Laverne Boswell, John Bush, Harry Kettle, Albert Murray, Luella B. Morrison Hulbert, and George Fineday, Sr., and Norma Koenen, Individually, and on Behalf of All Others Similarly Situated v. The United States of America, the United States Department of Interior, Donald Hodel, in His Official Capacity as Secretary of the Interior, Ross Swimmer, in His Official Capacity as Assistant Secretary of the Interior for Indian Affairs State of Minnesota, County of Becker, County of Clearwater, County of Mahnomen, Thomas Triplett, Commissioner of Revenue, State of Minnesota, Individually and in His Official Capacity, Ernest E. Kretzschmar, Harold Nystrom, Elizabeth Nystrom, Albin Scherping, S.E. Mooers, Violet J. Schroeder, Samuel Gladdig, Frances Johnson, L.G. Everest, Inc., Leslie M. Hanson, Waubaun School District 435, Allan Aanerud, Arnold Basted, Douglas Kramer, Joan Kramer, Richer Swierr, Agnes Swierr, A.J. Wambach, Jr., Beryl Wambach, Brian M. Elliott, Veronica M. Elliott, Gerald Fleming, Susan J. Fleming, Robert G. McGregor Jacqueline McGregor John Doe and Mary Roe, Current and Past Holders or to Lands on the White Earth Indian Reservation Properly Belonging to and Members of the Respective Classes They Represent, George Fineday, Sr., Fred Weaver, Melvin Buckanaga, Sr., John Gwinn, Hank Smith, Freda Higman, Marvin Manypenny, Sullivan Adams, Hazel Arthur, Karen Manypenny, Dorothy Brown, Bernice Buckanaga, Hazel Aitkin, Sally Lu Littlewolf v. The United States of America, the United States Department of Interior, Donald Hodel, Individually and in His Official Capacity as Secretary of Interior, Ross Swimmer, Individually and in His Official Capacity as Assistant Secretary of the Interior for Indian Affairs, State of Minnesota, County of Becker, County of Clearwater, County of Mahnomen, Thomas Triplett, Commissioner of Revenue, State of Minnesota, Individually and in His Official Capacity, T.P. Kremer, William Sheeler, Oscar Peterson, Gerald Fleming, Carol Fleming, A. Roger Viker, R.D. Malmo, Edward Trautner, Leona Trautner, St. C. Lister Co., John Donley and Glenice Donly, and John Doe and Mary Roe, Current and Past Holders or to Lands on the White Earth Indian Reservation Properly Belonging to and Members of the Respective Classes They Represent, Arnold Blazer, Marion J. Pederson, Theodore E. Dubois, Arthur E. Erickson, Gwendolyn Erickson, Ralph C. Kunze, Adryn Sponberg, James B. Hull, Muriel A. Hull, Paul Stalberger, Joann Stalberger, Raymond Brtek, Lawrence Osenga, Diane Osenga
948 F.2d 1057 (Eighth Circuit, 1991)
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730 F. Supp. 972 (D. Minnesota, 1990)

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Bluebook (online)
125 F.R.D. 497, 1989 U.S. Dist. LEXIS 4135, 1989 WL 38268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manypenny-v-united-states-mnd-1989.