Caldwell v. Arlo G. Lott Trucking et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Bradford Caldwell, )
)
Plaintiff, ) ORDER GRANTING DEFENDANT’S
) MOTION FOR RELIEF FROM ORDER
vs. ) REVERSING DISMISSAL
)
Arlo G. Lott Trucking, )
Colin Dale Kennedy, and )
Archer-Daniels-Midland Company, ) Case No. 1:21-cv-107
)
Defendants. )
______________________________________________________________________________
Before the Court is Defendant Archer-Daniels-Midland Company’s (“ADM”), motion for
relief from a state court order reversing the dismissal of ADM filed on June 15, 2021. See Doc. No.
17. The Plaintiff, Bradford Caldwell, filed a response in opposition to the motion on July 6, 2021.
See Doc. No. 24. ADM filed a reply brief on July 20, 2021. See Doc. No. 25. For the reasons set
forth below, the motion is granted.
I. BACKGROUND
This is a personal injury action originating in Ward County District Court, North Dakota,
which was removed to federal court on May 12, 2021. See Doc. No. 1. A summons and complaint
were filed on May 12, 2020. See Doc. Nos. 1-2, pp. 5-6. An affidavit of service was filed on May
12, 2020, indicating the summons and complaint were served upon Defendants Colin Kennedy and
Arlo G. Trucking, Inc. (“Arlo Trucking”) via certified mail. See Doc. No. 1-2, pp. 10-11. An
amended complaint adding ADM as a Defendant was filed on May 12, 2020. See Doc. No. 1-2, p.
13. Service documents filed on May 12, 2020, and May 26, 2020, reveal Kennedy and Arlo
Trucking were served the amended complaint through their attorney of record. See Doc. No. 1-2,
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p. 18. On May 26, 2020, the Plaintiff served the amended summons and amended complaint on the
registered agent for ADM, CT Corporation System, in Bismarck, North Dakota via first class mail.
See Doc. No. 1-2, p. 32. On May 28, 2020, CT Corporation sent notice to ADM regarding “Process
Served in North Dakota.” See Doc. No. 1-3, p. 58. The notice indicated the documents were served
“by certified mail on 05/28/2020 postmarked on 05/26/2020.” See Doc. No. 1-3, p. 58. CT
Corporation also included the envelope the documents came in, which includes a sticker on the
envelope noting “certified mail.” See Doc. No. 1-3, p. 60. On May 27, 2020, Kennedy and Arlo
Trucking filed answers to the amended complaint. See Doc. No. 1-2, p. 20.
On June 4, 2020, counsel for ADM emailed counsel for the Plaintiff to discuss an extension
of time for ADM to file an answer to the amended complaint. See Doc. No. 27-1. On June 5, 2020,
counsel for ADM again emailed Plaintiff’s counsel to confirm the agreement between the parties that
ADM’s deadline to file an answer to the amended complaint would be July 3, 2020. See Doc. No.
27-1. The email exchange also discussed the postponement of the deposition of Defendant Colin
Kennedy. See Doc. No. 27-1.
On June 24, 2020, the Plaintiff filed a “Stipulation of Dismissal of Defendant
Archer-Daniels-Midland Company” signed by counsel for the Plaintiff and counsel for Defendants
Kennedy and Arlo Trucking. See Doc. No. 1-2, p. 38. The stipulation provided for dismissal with
prejudice. See Doc. No. 1-2, p. 38.
The affidavit of service filed with the stipulation of dismissal stated it was served upon
counsel for Arlo Trucking and Kennedy through the State of North Dakota’s electronic filing system
and was emailed to counsel for ADM at his work email address. See Doc. No. 1-2, p. 41. On June
25, 2020, North Dakota District Judge Richard Hagar signed an order of dismissal as to Defendant
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Archer-Daniel-Midland Company, dismissing ADM from the case with prejudice. See Doc. No. 1-2,
p. 40.
On January 20, 2021, a substitution of counsel notice was filed substituting attorney Mark
V. Larson as counsel of record for the Plaintiff. See Doc. No. 1-2, p. 62. On February 4, 2021,
original counsel for the Plaintiff, Reed Soderstrom, was allowed to withdraw. See Doc. No. 1-2, p.
60. On February 22, 2021, the Plaintiff filed a Rule 60(b) “Motion for Reversal of Order Dismissing
Archer-Daniels-Midland Company” in which the Plaintiff contended the dismissal of ADM with
prejudice was void because ADM had not been served and the Court lacked personal jurisdiction
over ADM. See Doc. No. 1-3, pp. 2-5. The motion was served on Kennedy and Arlo Trucking but
was not served on ADM. See Doc. No. 1-3, p. 7. The certificate of service also stated no
“ECF-Exempt Persons” were served with the motion. See Doc. No. 1-3, p. 7. On March 17, 2021,
the state court granted the Plaintiff’s motion for reversal although it provided no reason for doing
so other than having determined that “good cause exists to grant the motion.” See Doc. No. 1-3, p.
6.
On April 1, 2021, counsel for the Plaintiff filed a motion to amend the complaint to add
additional parties, seeking to add ADM as a defendant on a negligence theory. See Doc. No. 1-3,
p. 11. The motion to amend was served on Arlo Trucking and Kennedy but not on ADM. See Doc.
No. 1-3, p. 22. On April 16, 2021, Defendants Arlo Trucking and Kennedy filed a response to the
motion to amend, indicating they had no objection to the motion. See Doc. No. 1-3, p. 23.
Defendants Arlo Trucking and Kennedy served their response on the Plaintiff electronically and on
ADM via first class mail. See Doc. No. 1-3, p. 24. On April 19, 2021, the state court granted the
Plaintiff’s motion to amend the complaint to add ADM as a defendant to assert a claim for
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negligence. See Doc. No. 1-3, p. 21. Thereafter, a summons and second amended complaint were
filed and served on ADM. See Doc. Nos. 27-35.
On May 6, 2021, ADM filed a motion for relief from the order reversing dismissal of ADM.
See Doc. No. 1-3, p. 43. However, on May 12, 2021, ADM removed the case to federal court before
the state court had ruled on ADM’s motion. See Doc. No. 1. On June 15, 2021, ADM refiled the
instant motion for relief from the order reversing dismissal of ADM in this federal case. See Doc.
No. 17. The motion has been fully briefed and is ripe for consideration.
II. LEGAL DISCUSSION
ADM seeks relief from the state court’s order reversing the dismissal with prejudice of ADM
pursuant to Rule 41. The current motion is filed pursuant to Rule 60(b)(1), 60(b)(3), and 60(b)(6)
of the Federal Rules of Civil Procedure. ADM contends it should be granted Rule 60(b) relief
because it was denied the opportunity to be heard on the Plaintiff’s Rule 60(b)(4) motion in state
court, the reversal was based upon a mistake of fact, and the Plaintiff offered no legal basis for the
reversal of ADM’s dismissal.
This matter having been removed to federal court, any orders issued by the originating state
court remain in effect but “federal rather than state law governs the future course of proceedings.”
Palmisano v. Allina Health Sys., Inc., 190 F.3d 881, 885 (8th Cir. 1999). Whenever an action is
removed to federal court, “all injunctions, orders, and other proceedings had in such action prior to
its removal shall remain in full force and effect until dissolved or modified by the district court.”
28 U.S.C. § 1450. “[A] federal district court may dissolve or modify injunctions, orders, and all
other proceedings which have taken place in state court prior to removal.” Maseda v. Honda Motor
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Co., 861 F.2d 1248, 1252 (11th Cir. 1988). After removal, state court orders remain binding but
subject to reconsideration in federal court. Hayes-Broman v. J.P. Morgan Chase Bank, N.A., 724
F. Supp. 2d 1003, 1013 (D. Minn. 2010). “[A]ny order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not
end the action as to any of the claims or parties and may be revised at any time before the entry of
a judgment adjudicating all the claims and all the parties’ rights and liabilities.” Fed. R. Civ. p.
54(b).
Rule 60(b) provides as follows:
(b) Grounds for Relief From a Final Judgment, Order, or Proceeding. On motion and
just terms, the court may relieve a party or its legal representative from a final
judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). North Dakota’s Rule 60(b) mirrors the federal counterpart and provides that
a court may grant relief from a prior order on the same grounds. Compare N.D. R. Civ. P. 60(b) with
Fed. R. Civ. P. 60(b). Because North Dakota’s Rule 60 was adopted from the Federal Rules of Civil
Procedure, North Dakota courts are guided by, and give great deference to, federal case law
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interpreting the federal rule when they construe North Dakota’s Rule 60. North Shore, Inc. v.
Wakefield, 542 N.W.2d 725, 727 (N.D. 1996).
Under Federal Rule of Civil Procedure 60(b)(1) the Court may grant relief from a judgment
on the grounds of “mistake, inadvertence, surprise, or excusable neglect.” The ignorance or
carelessness of an attorney is not generally cognizable. Cline v. Hoogland, 518 F.2d 776, 778 (8th
Cir. 1975). Under Federal Rule of Civil Procedure 60(b)(3) the Court may grant relief from a
judgment on the grounds of fraud. “To prevail . . . the movant must show, with clear and convincing
evidence, that the opposing party engaged in a fraud or misrepresentation that prevented the movant
from fully and fairly presenting its case.” United States v. Metropolitan St. Louis Sewer Dist., 440
F.3d 930, 935 (8th Cir. 2006) (internal citations omitted).
Federal Rule of Civil Procedure 60(b)(6) allows the Court to set aside a judgment “when the
movant shows any . . . reason justifying relief rom the operation of the judgment other than the more
specific circumstances set out in Rules 60(b)(1)-(5).” Gonzalez v. Crosby, 545 U.S. 524, 529 (2005)
(internal citations omitted). Rule 60(b)(6) allows the Court to vacate judgments “whenever such
action is appropriate to accomplish justice . . . [but] should only be applied in extraordinary
circumstances.” Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988). These
“extraordinary circumstances” must have “denied the moving party a full and fair opportunity to
litigate his claim and have prevented the moving party from receiving adequate redress.” Murphy
v. Missouri Dept. Of Corrections, 506 F.3d 1111, 1117 (8th Cir. 2007) (quoting Harley v. Zoesch,
413 F.3d 866, 871 (8th Cir. 2005)).
The Court has carefully reviewed ADM’s motion, the parties’ briefs, and the entire record.
The Court concludes the motion must be granted as the reversal granted by the state court was based
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upon a misrepresentation as to whether ADM had been served and a lack of due process. In the
Plaintiff’s underlying Rule 60(b)(4) motion, the Plaintiff’s contention was the judgment was void
because ADM was never served with the summons and complaint, and thus the court lacked personal
jurisdiction over ADM and could not dismiss ADM. See Doc. No. 1-3, p. 4. The record reveals this
contention is devoid of merit. In addition, the Plaintiff failed to serve its Rule 60(b)(4) motion on
ADM.
A. SERVICE OF THE AMENDED COMPLAINT
Despite the Plaintiff’s contention, ADM was served with the amended summons and
amended complaint in state court. The record reflects the amended summons and complaint were
mailed to ADM’s registered agent on May 26, 2020, and received on May 28, 2020. See Doc. Nos.
1-2, p. 32 and 1-3, pp. 56-61. The documents were forwarded to ADM the same day they were
received. After it was served, counsel for ADM contacted counsel for the Plaintiff and requested
an extension of time to answer until July 3, 2020. See Doc. No. 27-1. ADM was dismissed from
the case before the answer was due. See Doc. No. 1-2, pp. 38 and 40. ADM has never disputed that
it was properly served. Thus, it was factually incorrect for the Plaintiff to state that “no service was
ever attempted on Archer-Daniels-Midland.” See Doc. No. 1-3, p. 4. The Plaintiff’s contention the
state court record does not contain any proof of service is of no consequence. The return receipt
would be in the possession of counsel for the Plaintiff at the time service was effected--Reed
Soderstrom. The failure to file the proof of service is solely that of the Plaintiff. ADM does not
dispute service and “the written admission of the defendant” is sufficient to establish proof of
service. See N.D. R. Civ. P. 4(i)(5).
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Even if ADM was not properly served, the dismissal was effective when it was filed and did
not require any action from the Court. The dismissal of a party is governed by Rule 41 which
provides that the plaintiff may voluntarily dismiss a defendant without court a order by filing a notice
of dismissal before the opposing party has filed an answer or motion for summary judgment, or by
a stipulation signed by all parties who have appeared. See N.D. R. Civ. P. 41(a)(1); Fed. R. Civ. P.
41(a)(1). In this case, a stipulation was filed before ADM had appeared, or filed an answer or motion
for summary judgment. Although the stipulation does not reference Rule 41, such a voluntary
stipulation of dismissal can only be accomplished by Rule 41(a)(1)(a)(ii). It is black letter law that
a voluntary dismissal is effective when it is filed, does not require judicial approval, and terminates
the court’s jurisdiction. 9 Wright & Miller, Federal Practice and Procedure § 2363 (2020); Adams
v. USAA Cas. Ins. Co., 863 F.3d 1069, 1080 (8th Cir. 2017) (“dismissal is effective upon filing, with
no court action required”). A Rule 41(a)(1) dismissal “terminates the action and the court’s
jurisdiction.” Id.; In re Matthews, 395 F.3d 477, 480 (4th Cir. 2005) (“after an action is voluntarily
dismissed, the court lacks authority to conduct further proceedings on the merits”); Foss v. Fed.
Intermediate Credit Bank of St. Paul, 808 F.2d 657, 660 (8th Cir. 1986) (the court was without
jurisdiction to pass upon the merits of the case after plaintiff voluntarily dismissed case). It is the
Plaintiff who voluntarily dismissed his case against ADM with prejudice, not the Court. To suggest
the Court was without jurisdiction to dismiss ADM is a non sequitur.
While Rule 60(b) relief remains available to a party that stipulates to a Rule 41(a)(1)
dismissal of a party, such relief is only permissible in the “most exceptional of cases” and after
carrying the heavy burden of persuading the court that such relief is warranted. White v. Nat.
Football League, 756 F.3d 585, 595-96 (8th Cir. 2014). While current counsel for the Plaintiff may
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disagree with the strategy chosen by his predecessor, that is not grounds for Rule 60(b) relief. Since
the entire premise of the underlying motion is invalid, and the stipulation of dismissal was clearly
not void, the Court concludes relief under Rule 60(b)(1) and (b)(3) is warranted.
B. DUE PROCESS
It is undisputed the Plaintiff failed to serve its Rule 60(b) motion for reversal of the order
dismissing ADM on ADM. This lack of service is a violation of Rule 5(a) of the North Dakota
Rules of Civil Procedure which requires all motions to be served on every party. The lack of notice
is also a due process violation. “[I]n our system of justice the opportunity to be heard is a litigant’s
most precious right and should be sparingly denied.” Edgar v. Slaughter, 548 F.2d 770, 773 (8th Cir.
1977); Nelson v. Adams USA, Inc., 529 U.S. 460, 466 (2000) (noting the fundamental requisite of
due process is the opportunity to be heard). As succinctly stated by the United States Supreme
Court, “[a]n elementary and fundamental requirement of due process in any proceeding which is to
be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to present their objections.”
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950); see McWethy v. McWethy,
366 N.W.2d 796, 799 (N.D. 1985) (noting the procedure for obtaining relief from a judgment is by
notice, motion, and hearing pursuant to Rule 60(b)); EOG Res., Inc. v. Badlands Power Fuels, LLC,
No. 4:08-CV-038, 2009 WL 3757384, at *1 (D.N.D. Nov. 9, 2009) (recognizing Rule 60(b)(6)
applies to reverse the grant of summary judgment where the opposing party’s right to be heard on
its own motion for summary judgment was denied).
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In this case, ADM was a named party to the lawsuit and was never in default. Therefore,
service was required by Rule 5(a). Based upon the lack of service and the ensuing due process
violation, the Court finds that Rule 60(b)(6) relief is warranted.
III. CONCLUSION
For the reasons set forth above, ADM’s motion for relief from the state court order reversing
dismissal of ADM (Doc. No. 17) is GRANTED. The dismissal ordered by the state court on June
25, 2020, is reinstated, and the Plaintiff’s claims against ADM are dismissed.
IT IS SO ORDERED.
Dated this 14th day of December, 2021.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
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