                      United States Court of Appeals

                          FOR THE EIGHTH CIRCUIT


                              ___________

                              No. 96-2239
                              ___________


MW Ag, Inc., Richard Field and         *
Clark Field,                           *
                                       *
          Appellants,                  *
                                       *    Appeal from the United
     v.                                *    States District Court for
                                       *    the District of Minnesota.
New Hampshire Insurance Company,       *
                                       *
          Appellee.                    *

                              ___________

                      Submitted: December 9, 1996

                          Filed: February 26, 1997
                              ___________

Before BOWMAN and LAY, Circuit Judges, and SMITH,* District Judge.
                            ___________
SMITH, District Judge.


     Appellants appeal the order of the District Court2 granting
appellee’s motion for summary judgment.      The facts of the case are
not in dispute
     Appellee New Hampshire Insurance Company (“New Hampshire”) was
the property insurer for Clarkfield Drying for the period July,
1991 to July, 1992.     In September 1991, Clarkfield Drying filed a



     * The Honorable Ortrie D. Smith, United States District
Judge for the Western District of Missouri, sitting by
designation.

   The Honorable John M. Mason, United States Magistrate Judge
for the District of Minnesota. The parties consented to
jurisdiction before the United States Magistrate Judge pursuant
to F.R.C.P. 73.
Chapter 7 bankruptcy petition.     Richard and Clark Field, principals
of Clarkfield Drying, leased the drying plant to MW Ag, Inc.
Richard and Clark Field are principals of that corporation as well.
MW Ag continued to pay the insurance premiums to New Hampshire in
order to continue insurance coverage on the property.
     On June 16, 1992, a tornado hit the city of Clarkfield,
causing extensive damage to the drying plant.              The Chapter 7
bankruptcy trustee instituted adversary proceedings against New
Hampshire demanding insurance proceeds for the property damage.
New Hampshire paid $453,870.68 into the Bankruptcy Court.                   The
trustee retained the monies and assigned the bankruptcy estate’s
remaining   rights   under   the   policy   to   the   Fields    and   MW   Ag
(collectively “MW Ag”).       MW Ag, as assignee of the insurance
policy, demanded more money from New Hampshire.        MW Ag, through its
attorney, participated in ongoing negotiations with New Hampshire,
represented by its attorney Michael Baxter (“Baxter”).
     Because the insurance policy mandated that a suit under the
insurance policy must be brought within two years of the date of
the actual loss (the “contractual limitation”)3, when MW Ag’s
discussions with New Hampshire failed to result in a satisfactory
settlement, MW Ag drafted a lawsuit against New Hampshire to
collect the monies allegedly due under the contract.            The lawsuit
was to be brought in Minnesota state court.             MW Ag called New
Hampshire’s legal department to inquire as to the name and address
of New Hampshire’s agent for service of process and was informed
that P. Foley was the proper agent for service and was given
Foley’s address.     Therefore, on June 13, 1994, MW Ag mailed by
express mail the complaint and summons to P. Foley.             On June 14,




  The contract provides:

            No one may bring a legal action against us under
            this coverage Part C unless:
            1. There has been full compliance with all of the
                terms of this coverage part; and
            2. The action is brought within two years after the
                date on which the direct physical loss or damage
                occurred.
1994, MW Ag delivered a copy of the complaint and summons to Baxter
and mailed a copy of the complaint and summons to an insurance
investigator with the state of Minnesota.
       P. Foley was not in fact the agent for service of process for
New Hampshire.         The proper agent was Elizabeth M. Tuck, who was
located, coincidentally, at Foley’s same address.
       On July 11, 1994, New Hampshire removed the suit to federal
court and on July 21, 1994, filed an answer asserting insufficient
service of process as a defense.                  On December 29, 1994, New
Hampshire was granted leave to amend its answer and to assert a
counterclaim.         On November 22, 1995, the district court entered
summary judgment in New Hampshire’s favor dismissing the case for
failing to commence the lawsuit within the two year contractual
limitation period.


                                STANDARD OF REVIEW


       We review a District Court’s grant of summary judgment de
novo, applying the same standards as the District Court.                 See Diesa
v. St. Louis Community College, 79 F.3d 92, 94 (8th Cir. 1996).
Thus, the District Court’s decision is affirmed if, viewing the
evidence in the light most favorable to the nonmoving party, there
is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.                Fed. R. Civ. P. 56(c).


                   COMMENCEMENT AND SERVICE OF PROCESS


       The issue before this court is whether MW Ag’s action against
New    Hampshire      was   commenced    within   the    two    year   contractual
limitation period by properly serving New Hampshire with process.
       Federal courts follow state substantive law to determine when
an action is commenced for statute of limitations purposes.                 Walker
v.    Armco   Steel    Corp.,    446    U.S.   740,   752-753    (1980).    Under
Minnesota law an action is “commenced” by service of the summons on
a defendant, by acknowledgment of service or by delivery to the
sheriff.      Minn.R.Civ.P. 3.01.       Here, MW Ag contends that its action

                                          3
against New Hampshire was commenced within the two year contractual
limitation period because New Hampshire was properly served with
the summons and complaint within that time period.
       Minnesota Rule of Civil Procedure 4.03 allows for personal
service upon a foreign corporation by delivering a copy of the
summons and complaint to an agent authorized to receive service of
summons.    Rule 4.05 allows for service by mailing a copy of the
summons and complaint to the person to be served together with a
notice and acknowledgment form.                The rule specifically provides:
“If acknowledgment of service under this rule is not received by
the sender within the time defendant is required by these rules to
serve an answer, service shall be ineffectual.”
       First,   MW    Ag    contends   that      by   mailing     the   summons   and
complaint to P. Foley, whom MW Ag was led to believe was New
Hampshire’s registered agent, service was properly effected on
June 13, 1994 and the lawsuit was commenced.                    It is undisputed,
however, that P. Foley was not New Hampshire’s registered agent for
service of process.           It is also undisputed that MW Ag did not
provide P. Foley with the required acknowledgment form and did not
receive an acknowledgment of service from New Hampshire.                   Thus, it
is clear that service is ineffectual under Minnesota’s rule.                      This
is   true   even     in    those   cases   where      defendant    never   returned
acknowledgment of service but had actual notice of the lawsuit and
admitted that it received two summonses and complaints but made a
corporate decision not to cooperate in service of process.                         See
Coons v. St. Paul Companies, 486 N.W.2d 771 (Minn. Ct. App. 1992).
In these instances, plaintiff must secure personal service to
obtain jurisdiction.         Thus, the service by mail on P. Foley was not
sufficient service of process to commence a suit under Minnesota
law.
       Second, MW Ag argues that the delivery of a copy of the
summons and complaint to Baxter, New Hampshire’s attorney, was
effective service of process.          There is no evidence in the form of
an affidavit or otherwise from the delivery service establishing
that the summons and complaint were in fact delivered to Baxter on
June 14, 1994.       Further, there is no support for MW Ag’s position

                                           4
that Baxter is an “agent authorized expressly or impliedly . . . to
receive service of summons” merely because Baxter negotiated with
MW Ag on behalf of New Hampshire.           Finally, although New Hampshire
acknowledges that at some time Baxter received a copy of the
summons and complaint, such receipt does not constitute actual
notice that would obviate the need for sufficient service of
process.     Coons v. St. Paul Companies, 486 N.W.2d 771 (Minn. Ct.
App. 1992).
     Alternatively, MW Ag argues that service of process was
sufficient under New York law.         However, CPLR 312-a (1993), which
governs service of process in New York state court, is not unlike
Minnesota practice which requires the receipt of an acknowledgment
of service from the defendant before service by mail is completed.
Although an action is commenced in New York upon the filing of the
complaint with the court clerk, service by mail is not sufficient
until the plaintiff receives and files defendant’s acknowledgment
of service. CPLR 312-a(b).        Thus, the actions taken by MW Ag to
effect service of process on New Hampshire are not sufficient under
New York law.


                                  WAIVER


     MW Ag contends that the alleged insufficiency of its service
of process on New Hampshire was waived by the actions of New
Hampshire -- first, when the action was removed by New Hampshire to
federal court; second, when New Hampshire filed its answer to the
complaint; or third, when New Hampshire filed an amended answer and
asserted a counterclaim against MW Ag.
     While    it   is   true   that    New    Hampshire’s   assertion   of   a
counterclaim against MW Ag may have constituted a waiver of the
insufficiency of service of process, that waiver occurred in
December 1994 - after the critical date of June 16, 1994 (the
contractual limitation date).         MW Ag argues that the waiver should
relate back to either the date the summons and complaint were
mailed to New Hampshire (June 13, 1994) or the date that the
summons and complaint were delivered to Baxter (June 14, 1994).

                                        5
      This Court agrees with the District Court that where service
of   process   is    not   effected    upon   the   defendant,     but   where   a
defendant waives that defect, an action is commenced for statute of
limitations purposes on the date upon which the action resulting in
the waiver took place.       In following that rule, all of the actions
taken by New Hampshire which MW Ag contends constituted a waiver of
insufficient process are irrelevant to this case because all of
those actions were taken after June 16, 1994.            Therefore, although
any of those actions may have constituted a waiver, the suit
brought   by   MW    Ag    was   not   commenced    within   the    contractual
limitation period.         As such, summary judgment is appropriate in
this case.
      Therefore, the decision of the District Court is affirmed.


      A true copy.


           Attest:


                    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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