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Gessner v. City of Minot8/18/1998
ummons to any member of its governing board . . . .
Specific requirements for service of process must be strictly complied with, and a judgment based on service where the procedural requirements of the rule have not been followed is void. Farrington v. Swenson, 210 N.W.2d 82, 83 (N.D. 1973).
[ ] Minot has adopted the city council form of government. Under N.D.C.C. § 40-08-01 Minot's governing body is composed of the mayor and the city aldermen. Minot has also adopted a city manager plan under N.D.C.C. ch. 40-10 and has hired a city manager to be its chief administrative officer under N.D.C.C. § 40-10-03. However, the city manager is not a member of the city's governing body and is not, therefore, a proper person for making service of process on the city. See, e.g., Nissen v. City of Fargo, 338 N.W.2d 655, 657 (N.D. 1983) (holding service of process on city auditor was not service on city commissioners). We conclude the district court properly determined there was insufficient service of process on Minot.
Unity in Interest of the Co-defendants
[ ] Gessner asserts even though she failed to properly serve Minot and the statute of limitations has run for obtaining proper timely service, she should be allowed to now serve Minot and have the service relate back to her service upon the District as a co-defendant "united in interest" with Minot under N.D.C.C. § 28-01-38: An action is commenced as to each defendant when the summons is served on him, or on a co-defendant who is a joint contractor or otherwise united in interest with him. . . . .
Under this statute an action is deemed to have been commenced against a defendant when the summons is served upon a party who is united in interest with that defendant. We have not previously construed the phrase "united in interest" in the context of this statute. However, New York has a similar provision, and we look for guidance from its court's interpretations to construe our statute.
[ ] The New York Court of Appeals has held that parties are "united in interest" if the subject matter of the action is such that both parties "stand or fall together and . . . judgment against one will similarly affect the other." Mondello v. New York Blood Center, 80 N.Y.2d 219, 604 N.E.2d 81, 85, 590 N.Y.S.2d 19 (1992), citing Prudential Ins. Co. v. Stone, 270 N.Y. 154, 159, 200 N.E. 679 (1936). Under those circumstances, the party not timely served is charged with notice of the institution of the action and, because of the relationship with the timely served party, is deemed not prejudiced in maintaining a defense on the merits of the otherwise barred claim. Mondello, 604 N.E.2d at 85. Thus, for instance, partners are united in interest because they are personally and vicariously liable for the torts of their co-partners committed within the scope of the partnership business. Connell v. Hayden, 443 N.Y.S.2d 383, 395 (App. Div. 1981). Where, however, the action is one to recover for tort "persons who are charged with concurrent negligence producing plaintiff's injuries will not be held to be 'united in interest' absent some relationship between them giving rise to vicarious liability for the acts of the other." Connell, 443 N.Y.S.2d at 396-97.
[ ] Parties are not united in interest under the New York statute if each could assert different defenses to the plaintiff's claims, such that untimely service upon one of them may prevent that party from conducting an appropriate investigation of a defense which the timely served defendant has no interest or desire to pursue. See, e.g., Mfrs. & Traders Trust Co. v. Lindauer, 513 N.Y.S.2d 629, 637-38 (1987). Under New York's interpretations of the united-in-interest
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