                IN THE SUPREME COURT, STATE OF WYOMING

                                    2014 WY 20

                                                 OCTOBER TERM, A.D. 2013

                                                           February 11, 2014

MARGARET REYNOLDS and DAVID
REYNOLDS, husband and wife,

Appellants
(Plaintiffs),

v.
                                               S-13-0087
JEAN B. MOORE, an individual, JUDITH
JAEGER and WILFORD JAEGER,
husband and wife,

Appellees
(Defendants).

                    Appeal from the District Court of Teton County
                        The Honorable Timothy C. Day, Judge
                        The Honorable Marvin L. Tyler, Judge

Representing Appellants:
      Alan C. Stephens of Thomsen Stephens Law Offices, Idaho Falls, Idaho*; John D.
      Bowers of the Bowers Law Firm, Afton, Wyoming. Argument by Mr. Stephens.

Representing Appellee Jean B. Moore:
      Julie Nye Tiedeken and Sean W. Scoggin of McKellar, Tiedeken & Scoggin, LLC,
      Cheyenne, Wyoming. Argument by Mr. Scoggin.

Representing Appellees Judith Jaeger and Wilford Jaeger:
      Scott Paul Landry of Pratt & Landry, LLP, Lone Tree, Colorado.

Before KITE, C.J., and HILL, VOIGT†, BURKE, and DAVIS, JJ.

* An Order Allowing Withdrawal of Counsel was filed on October 25, 2013.
†
  Justice Voigt retired effective January 3, 2014.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Chief Justice.

[¶1] The district court dismissed Margaret and David Reynolds’ negligence claims
against Ms. Moore and their respondeat superior claims against her employers, Judith and
Wilford Jaeger. We conclude the district court erred by dismissing the Reynolds’
complaint. The mistake in the original summons served upon Ms. Moore was not fatal,
and the district court obtained jurisdiction over her prior to the expiration of the statute of
limitations. Given the action against Ms. Moore was valid, the district court erred in
dismissing the Reynolds’ claims against the Jaegers because they were derivative and
could not be maintained in their employee’s absence..

[¶2]   We reverse and remand.

                                          ISSUES

[¶3]   The Reynolds present the following issues on appeal:

                      I.     Did the district court err when it found that
               Defendant Moore was not sufficiently served for the court to
               obtain jurisdiction?

                      II.   Did the district court err when it held that
               Moore sufficiently plead[ed] the affirmative defenses of
               insufficiency of process and insufficiency of service under
               Wyo. R. Civ.P. 12(b)(4) and (b)(5)?

                       III. Did the district court err when it dismissed
               Plaintiffs’ complaint against the Jaegers because Plaintiffs’
               claims against the Jaegers were derivative of the claims
               asserted against Moore?

Ms. Moore and the Jaegers essentially restate the same issues with respect to the claims
against each of them.

                                           FACTS

[¶4] On March 4, 2008, Mrs. Reynolds and Ms. Moore were involved in an automobile
accident in Jackson, Wyoming, and Mrs. Reynolds was injured. At the time of the
accident, Ms. Moore was employed by the Jaegers.

[¶5] On February 21, 2012, the Reynolds filed a complaint against Ms. Moore and the
Jaegers, asserting that Ms. Moore was negligent and, because she was acting in the
course and scope of her employment at the time of the accident, the Jaegers were

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responsible for her negligence. Ms. Moore was personally served with the complaint and
summons at her residence in California on March 13, 2012. The summons incorrectly
stated that she was required to respond within twenty days, instead of the thirty days
allowed by W.R.C.P. 121 when service of process is accomplished outside the State of
Wyoming. The summons also incorrectly stated that her response must comply with the
Idaho Rules of Civil Procedure, rather than the Wyoming rules.2

[¶6] On April 2, 2012, Ms. Moore filed an answer asserting as affirmative defenses
insufficient process and service of process under W.R.C.P. 12(b)(4) and (5). The
Reynolds served Ms. Moore with a corrected summons on April 30, 2012 – sixty-nine
days after filing their complaint. Ms. Moore filed a motion to dismiss the complaint
alleging the errors in the first summons prevented the trial court from obtaining
jurisdiction over her; the action was not deemed commenced under W.R.C.P. 3(b)3 until
the date of the second service; and the four year statute of limitations for personal injury
actions in Wyo. Stat. Ann. § 1-3-105(a)(iv)(C) (LexisNexis 2011) had expired by the
time she was served with the second summons. The district court granted her motion.



1
    Rule 12 provides in pertinent part:

              (a) When presented. – A defendant shall serve an answer within 20 days after the
          service of the summons and complaint upon that defendant, or if service be made without
          the state . . . within 30 days after such service[.] . . .

              (b) How presented. – Every defense, in law or fact, to a claim for relief in any
          pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be
          asserted in the responsive pleading thereto if one is required, except that the following
          defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over
          the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4)
          insufficiency of process; (5) insufficiency of service of process; (6) failure to state a
          claim upon which relief can be granted; (7) failure to join a party under Rule 19.
2
  Although licensed in Wyoming, the Reynolds’ original attorney was located in Idaho, which may
explain the errors. This Court allowed substitution of counsel for the Reynolds on October 25, 2013.
3
    Rule 3 states in relevant part:

             (a) How commenced. – A civil action is commenced by filing a complaint with the
          court.

             (b) When commenced. – For purposes of statutes of limitation, an action shall be
          deemed commenced on the date of filing the complaint as to each defendant, if service is
          made on the defendant or on a co-defendant who is a joint contractor or otherwise united
          in interest with the defendant, within 60 days after the filing of the complaint. If such
          service is not made within 60 days the action shall be deemed commenced on the date
          when service is made. . . .


                                                      2
[¶7] The Jaegers then filed a motion to dismiss the respondeat superior action against
them because the negligence claims against their employee, Ms. Moore, had been
dismissed. The district court granted the Jaegers’ motion, stating “there can be no claims
for relief that can be awarded by this Court against the Jaeger Defendants because all of
Plaintiffs’ claims against them are derivative of the claims asserted against Ms. Moore,
which have been dismissed.” The Reynolds appealed.

                               STANDARD OF REVIEW

[¶8] The district court dismissed the Reynolds’ complaint. The issues in such cases are
legal rather than factual because they pertain to the applicability of procedural rules and
statutes. Hoke v. Motel 6 Jackson, 2006 WY 38, ¶ 6, 131 P.3d 369, 373 (Wyo. 2006),
citing Hollingshead v. Hollingshead, 942 P.2d 1104, 1106 (Wyo. 1997) and EOG
Resources, Inc. v. State, 2003 WY 34, ¶ 7, 64 P.3d 757, 759 (Wyo. 2003). Consequently,
our standard of review is de novo. Id. See also Ridgerunner, LLC v. Meisinger, 2013
WY 31, ¶ 10, 297 P.3d 110, 114 (Wyo. 2013); Swinney v. Jones, 2008 WY 150, ¶ 6, 199
P.3d 512, 515 (Wyo. 2008).

                                      DISCUSSION

[¶9] The district court granted Ms. Moore’s motion to dismiss on the grounds the first
summons was insufficient for the court to obtain personal jurisdiction over her and the
statute of limitations had expired by the time she was served with the second summons.
The Reynolds argue the summons was not so radically defective to deprive the court of
jurisdiction and, in any event, Ms. Moore was not prejudiced because she received actual
notice and responded in a timely manner.

[¶10] There is no question that the summons contained errors. It incorrectly stated that
Ms. Moore was required to respond within twenty days, instead of the thirty days allowed
by W.R.C.P. 12(a) for defendants served outside of Wyoming. The summons also
improperly stated that Ms. Moore had to respond in accordance with the Idaho Rules of
Civil Procedure rather than the Wyoming rules. The core question on appeal is whether
service of the first summons, with its errors, was sufficient to obtain personal jurisdiction
over Ms. Reynolds and commence the action for purposes of the statute of limitations.
W.R.C.P. 4 states the requirements for a summons:

                 (a) Issuance of summons. – Upon the filing of the
              complaint the clerk shall forthwith issue a summons to the
              plaintiff for service on the defendant. Upon the request of the
              plaintiff separate or additional summons shall issue against
              any defendants.




                                             3
                   (b) Form of summons. – The summons shall be signed by
               the clerk, be under the seal of the court, contain the name of
               the court and the names of the parties, be directed to the
               defendant, state the name and address of the plaintiff’s
               attorney, if any, otherwise the plaintiff’s address, and the time
               within which these rules require the defendant to appear and
               defend, and shall notify the defendant that in case of the
               defendant’s failure to do so judgment by default will be
               rendered against the defendant for the relief demanded in the
               complaint.4

[¶11] The district court relied on Hoke, in concluding the error with regard to the
response time was fatal. The statement from Hoke emphasized by Ms. Moore and the
district court is:

                   A summons is “the means of compelling a defendant to
               subject his person to the jurisdiction of the court from which
               the summons issues.” Pease Brothers, Inc. v. American Pipe
               & Supply Company, 522 P.2d 996, 1001 (Wyo.1974) (quoting
               State ex rel. Minihan v. Aronson, 350 Mo. 309, 165 S.W.2d
               404, 407 (1942)). Strict compliance with the requirements of
               service of process is mandatory. Any omissions of statements
               that are required under W.R.C.P. 4 are fatal and such
               omission prevents the trial court from obtaining jurisdiction
               of the defendant. A judgment entered without proper service
               of the summons is void and subject to attack directly or
               collaterally.

Id., ¶ 7, 131 P.3d at 374 (some citations omitted). The statement that “any omission”
from the summons of the statements required by W.R.C.P. 4 is fatal is certainly broad. If
we were to look at that statement in isolation, we would have to agree the error in the
summons in this case was fatal given Rule 4 specifically requires the summons include
“the time within which these rules require the defendant to appear and defend.”
W.R.C.P. 4(b). The statement from Hoke must, however, be considered in context and in
accordance with other authorities. The purpose of service of process is to provide a
defendant with notice and the opportunity to defend against the action. Hoke, ¶ 23, 131
P.3d at 381. See also 62B Am. Jur. 2d Process § 3 (2013). Notice and the opportunity to
be heard are basic due process rights, and until a defendant is properly notified of an
4
  Ms. Moore agreed at the hearing on her motion to dismiss that the error in designating the applicable
rules of procedure as Idaho rather than Wyoming may not have been fatal because identification of the
relevant rules is not required by W.R.C.P. 4. Consistently, she does not, on appeal, provide cogent
argument or pertinent authority to establish that the district court should have dismissed the Reynolds’
complaint on that basis. See Sands v. Brown, 2013 WY 60, ¶ 2 n.1, 301 P.3d 128, 129 n.1 (Wyo. 2013).


                                                   4
action, the court lacks personal jurisdiction over the defendant. Hoke, ¶ 23, 131 P.3d at
381; 62B Am. Jur. 2d Process § 4.

[¶12] In Hoke, the plaintiff served the defendant with a summons which was not signed
by the clerk of court under the seal of the court as required by Rule 4(b). She also failed
to attach a copy of the complaint to the summons. As we noted in the opinion, the
defects were not trivial. The requirement that a summons be properly signed and sealed
“is to guarantee that the summons is legitimate and . . . attaching the complaint thereto is
what notifies the defendant of the substance of the action against him.” Hoke, ¶ 23, 131
P.3d at 381.

[¶13] Other Wyoming cases have applied the same reasoning to hold that service of
process was ineffective. In Gookin v. State Farm Fire & Cas. Ins. Co., 826 P.2d 229,
233-37 (Wyo. 1992), we held the plaintiff failed to obtain jurisdiction over the defendant
through substituted service of process because the process server was not properly
appointed by the court and the plaintiff did not comply with other notification provisions
under the statutes applicable to service of process on an insurer. That case focused on
strict compliance with statutory requirements for substituted service of process on a
nonresident defendant. Id. at 234. Although the defendant received notice of the action
from the Wyoming Insurance Commissioner, the errors in the service of process made the
legitimacy of the action suspect.

[¶14] While Hoke stated that strict compliance with Rule 4 regarding the form of the
summons is required, we also acknowledged in that decision that there are Wyoming
cases holding that erroneous service of process may effectuate jurisdiction so long as the
error in the summons is not radical. Hoke, ¶¶ 15-23, 131 P.3d at 378-82. One of the
cases discussed in Hoke was Clause v. Columbia Savings & Loan Ass’n, 16 Wyo. 450, 95
P. 54 (1908). In Clause, the coroner served process on Columbia Savings & Loan
because the sheriff was also originally named as a defendant in the action. After it was
established that the sheriff was not an appropriate party, the savings and loan argued the
sheriff should have served process rather than the coroner and, consequently, the service
was not effective to commence the action for statute of limitations purposes.

[¶15] Rejecting the defendant’s argument, the Clause decision stated:

              [I]t is not every irregularity or imperfection in a summons or
              service thereof which will deprive the court of jurisdiction,
              though it may justify or require setting aside of service upon
              motion, or the reversal of a judgment upon a proper
              application. To have the effect of failing to give jurisdiction
              the summons or service must be so radically defective that it
              would authorize a collateral impeachment of a judgment



                                             5
             rendered thereon; that is to say it must be void, and not
             merely voidable.

Id. at 59-60. See also, L.C. Jones Trucking Co. v. Superior Oil Co., 234 P.2d 802, 808-09
(Wyo. 1951). In summary, this Court declared that form should not be held in higher
regard than substance and technical defects that do not deprive the defendant of due
process should not be permitted to work an injustice or deny substantial rights to the
plaintiff. Id. at 60, citing Alderson on Judicial Wr. & Proc. c. 6, § 25. Given the
defendant was personally served with legitimate process and therefore received notice of
the action, the error in having the coroner rather than the sheriff serve the defendant did
not deprive the court of jurisdiction. Id. The circumstances in Clause are clearly
distinguishable from Hoke where the summons was not appropriately issued and the
complaint was not attached, resulting in a lack of actual notice to the defendant of the
legitimacy and substance of such action.

[¶16] More recently, in Rosty v. Skaj, 2012 WY 28, 272 P.3d 947 (Wyo. 2012), we
reiterated the importance of compliance with the requirements for service of process, but
held that service of a defendant by delivering the documents to his mother at his usual
place of abode was sufficient even though he asserted she was not competent to accept
service. The defendant failed to meet his burden of demonstrating his mother was
incompetent and there was evidence that she told the defendant’s sister about the
documents and said they were for him. Id. at ¶¶ 22-26, 272 P.3d at 955-56.

[¶17] In the case at bar, the district court focused on the Reynolds’ failure to
appropriately advise Ms. Moore of the date a response was due. The only Wyoming
cases we have been directed to addressing errors in the return date involved service by
publication. Emery v. Emery, 404 P.2d 745 (Wyo. 1965) and Nat’l Supply Co. v. Chittim,
387 P.2d 1010 (Wyo. 1964). Service by publication is constructive rather than personal
and is in derogation of common law; consequently, statutes and rules authorizing it must
be strictly followed. Nat’l Supply, 387 P.2d at 1012. See also WR v. Lee (In the Interest
of DG), 825 P.2d 369, 375 (Wyo. 1992). In addition to stating the wrong date for
response, the plaintiffs in Nat’l Supply and Emery also failed to provide the requisite
affidavits stating the last known address of the defendant or that the address was
unknown and could not be ascertained with reasonable diligence. Nat’l Supply, 387 P.2d
at 1011; Emery, 404 P.2d at 746-48. See W.R.C.P. 4(f) (requirements for service by
publication).

[¶18] Given the lack of direct Wyoming authority on the effect of an improper date of
return in a summons that is personally served, we turn to treatises and rulings from other
jurisdictions. C. Wright, A. Miller, M. Kane, R. Marcus, A. Steinman, 4A Fed. Prac. &
Proc. Civ. § 1088 (hereinafter Wright & Miller) discusses the effect of errors in the form
of a summons under federal law. F.R.C.P. 4(a) and W.R.C.P. 4(b) provide very similar
requirements for the form of a summons. Authority interpreting federal rules is


                                            6
persuasive in interpreting our rules. Baker v. Speaks, 2013 WY 24, ¶ 33, 295 P.3d 847,
855 (Wyo. 2013).

[¶19] F.R.C.P. 4(a)(2) allows liberal amendment of process; consequently, errors which
are technical and not prejudicial to the defendant typically are not fatal. Wright & Miller
§ 1088. The touchstone in determining whether an error is fatal is whether the defendant
received proper notice, making the error harmless. Id. W.R.C.P. 4(n) similarly allows
liberal amendment of a summons in Wyoming:

                 (n) Amendment. At any time in its discretion and upon
              such terms as it deems just, the court may allow any process
              or proof of service thereof to be amended, unless it clearly
              appears that material prejudice would result to the substantial
              rights of the party against whom the process issued.

Although W.R.C.P. 4(n) was not discussed by the parties or the district court in this case,
its policy allowing liberal amendment of a summons at any time unless the rights of the
defendant would be prejudiced indicates not all errors in the statements required by Rule
4(b) are fatal. See also Deschenes v. Beall, 61 Wyo. 39, 154 P.2d 524, 528 (1945)
(indicating that erroneous summons may be amended).

[¶20] By employing the rationale that notice and prejudice are keys to the determination
of whether an error is fatal or not, we are able to reconcile Clause with Hoke. In Hoke,
the prejudicial errors of failing to obtain the proper signature and seal on the summons
and attach the complaint were radical and did not provide the defendant with notice that
the action was legitimate or the substance of the action. Under Clause, however, errors
that are not radical and do not deprive the defendant of notice or otherwise prejudice the
defendant, do not affect the court’s jurisdiction. In other words, form should not be
elevated over substance. See Clause, 95 P. at 60.

[¶21] Wright & Miller § 1088 also states: “[a] defendant’s appearance in the action
should be enough to prevent any technical error in form from providing a basis for
invalidating the process.” More precisely, “a summons specifying an incorrect time for
the submission of an answer normally shall be deemed cured by the defendant’s
responding to the process by filing an answer.” Id. See also United Food & Commercial
Workers Union v. Alpha Beta Co., 550 F.Supp. 1251, 1255 (N.D. Cal. 1982); Krueger v.
Lynch, 48 N.W.2d. 266 (Iowa 1951). Again, the dispositive inquiry addresses the quality
of the notice and prejudice to the defendant.

[¶22] Ms. Moore cites WR, 825 P.2d 369, as authority that a defendant’s appearance in
an action does not waive the requirement for proper service of process. WR was an
unusual case and does not mandate an expansive rule that all errors in service are
prejudicial and may never be cured by the defendant’s appearance. There, the agency


                                            7
attempted to serve process on the mother in a parental rights’ termination action by
employing a statutory method of constructive service, but wholly failed to comply with
the statutory and procedural requirements. Id. at 375-77. In the nomenclature of Clause
and its progeny, the service of process was radically defective.

[¶23] Here, Ms. Moore was personally served with a summons signed and sealed by the
proper authority, thereby giving it legitimacy. The complaint was also properly served,
providing her with notice of the substance of the claims against her. The error which the
district court considered fatal was the incorrect date of response. Ms. Moore, however,
responded in a timely manner thereby curing any error in that regard, and she has not
demonstrated any prejudice. Consequently, the error was not so radical that it rendered
any subsequent judgment void and subject to collateral impeachment. Because the error
was not fatal and Ms. Moore was served within sixty days, the action was deemed
commenced under Rule 3(b) when the complaint was filed. The district court erred by
dismissing the Reynolds’ action against Ms. Moore.

[¶24] Our ruling that the action against Ms. Moore is valid is dispositive of the other two
issues presented in this appeal. Specifically, we need not consider whether Ms. Moore
properly raised the affirmative defenses of invalid process and invalid service of process
under Rule 12. In addition, the basis for the district court’s dismissal of the Reynolds’
derivative claim against the Jaegers was that the claim against their employee, Ms.
Moore, had been dismissed. In view of the fact that we have held Ms. Moore’s dismissal
improper, we do not need to determine whether a derivative claim may be pursued
against the employer after the employee has been dismissed on a technicality.

[¶25] Reversed and remanded for proceedings consistent with this opinion.




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