APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA HONORABLE BRADLEY G. ZELL Judge
The opinion of the court was delivered by: Severson, Justice
CONSIDERED ON BRIEFS ON OCTOBER 3, 2011
[¶1.] Former students of a parochial school brought an action against the
Priests of the Sacred Heart, Inc. (PSH) and other defendants, asserting claims of childhood sexual abuse. PSH filed a motion to dismiss the action on the grounds that the former students failed to timely serve process on PSH in accordance with South Dakota law. The circuit court denied the motion to dismiss, finding the former students substantially complied with the applicable service-of-process statute. The circuit court also found service of process on PSH was valid under SDCL 15-2-31. We reverse.
[¶2.] R.B.O., J.H.C., N.T.H., L.M., L.Z., K.T., J.J. and B.S. (Plaintiffs) are members of a recognized Native American tribe who attended St. Joseph's Indian Mission School (St. Joseph's) on the Lower Brule Indian Reservation in South Dakota. PSH is a religious organization with headquarters in Wisconsin. Plaintiffs allege that individual members of PSH, while acting as employees or agents of St. Joseph's, sexually molested and assaulted them. Plaintiffs also allege that the Congregation of the Priests of the Sacred Heart, Inc. and the Catholic Diocese of Sioux Falls are liable for the childhood sexual abuse that allegedly occurred at St. Joseph's.*fn1
[¶3.] In an initial attempt to commence this action against PSH, Plaintiffs delivered legal process to the Milwaukee County Sheriff's Office in late June 2010. The Office of the Milwaukee County Sheriff served Amanda Milczarski on
July 2, 2010. Milczarski is a receptionist at the Development Office - Sacred Heart Monastery - Priests of the Sacred Heart, Reign of the Sacred Heart, Inc. (Development Office). The Development Office is a separate corporate entity from PSH. The address of the Development Office where Plaintiffs delivered legal process is not the address of PSH.
[¶4.] The South Dakota Legislature amended the applicable statute of limitations in civil actions for childhood sexual abuse during the 2010 Legislative Session. The amended statute, which went into effect July 1, 2010, provides that "no person who has reached the age of forty years may recover damages from any person or entity other than the person who perpetrated the actual act of sexual abuse." SDCL 26-10-25.
[¶5.] PSH filed a motion to dismiss on August 13, 2010, alleging Plaintiffs' service of process on Milczarski was insufficient because Milczarski was neither an employee nor agent of PSH. Shortly thereafter, Plaintiffs hired a private process server, DDS Legal Support, to effectuate service on David Nagle, the registered agent of PSH. But the documents Plaintiffs provided to DDS Legal Support did not list PSH as the party to be served. Instead, the documents instructed DDS Legal Support to serve the "Congregation of the Priests of the Sacred Heart, Inc., by its Agent David Nagle." On August 24, 2010, DDS Legal Support personally served Nagel. A return of service was filed indicating that Nagle had been served on behalf of "(The) Congregation of the Priests of the Sacred Heart, Inc."
[¶6.] In an order entered December 20, 2010, the circuit court denied PSH's motion to dismiss. The circuit court found Plaintiffs substantially complied with SDCL 15-6-4(d)(1), South Dakota's statute governing requirements for personal service on a business entity. In addition, the circuit court found service of process on PSH was in compliance with SDCL 15-2-31.
[¶7.] "[W]hen a defendant moves to dismiss for insufficient service of process, the burden is on the plaintiff to establish a prima facie case that the service was proper." Grajczyk v. Tasca, 2006 S.D. 55, ¶ 22, 717 N.W.2d 624, 631 (citing Northrup King Co. v. Compania Productora Semillas Algodoneras Selectas, S.A., 51 F.3d 1383, 1387 (8th Cir. 1995)). Whether a plaintiff has presented a prima facie case of sufficient service of process is reviewed by this Court ...