ST. LOUIS (CN) – A man who picked up a malfunctioning battery-operated toy, only to have it explode in his hands, cannot sue Wal-Mart, the 8th Circuit ruled.
Jon Sommervold sued the retailer over the 2008 injury because he had bought the toy at its location in Aberdeen, S.D., and the toy manufacturer had gone bankrupt.
A federal judge in Pierre nevertheless dismissed the action for insufficient service of process.
In affirming last week, the 8th Circuit noted that South Dakota law applies because Sommervold had originally filed his complaint in state court. Proper service here would have required Sommervold to leave a copy of the lawsuit with the person in charge at a particular store location or with that company’s registered agent.
Instead of serving Wal-Mart’s registered agent, CTS Corp., however, Sommervold served the Aberdeen store’s assistant manager nine days before the statute of limitations was set to expire.
Since service was made to the store’s assistant manager and not the main manager, proper service had not been given, according to the ruling.
The three-judge panel rejected Sommervold’s argument that his process server complied with state law because the assistant manager accepted service of process for Wal-Mart with the ostensible authority to do so.
“Restricting the universe of agents who may be properly served reflects an obvious legislative intent to increase the likelihood that a business entity will receive actual notice of a lawsuit,” Judge James Loken wrote for the panel. “Given this intent, and the recent decisions of the Supreme Court of South Dakota refusing to extend the ‘substantially complies’ doctrine, we agree with the district court’s decision to dismiss Sommervold’s complaint under Rule 12(b)(5) because he failed to comply with the applicable South Dakota service statute, § 15-6-4(d)(1).”
Judges Michael Melloy and Steven Colloton concurred with Loken.
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