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FILED 1N DISTRICT COURT
STATE OF MINNESOTA
STATE OF MINNESOTA DISTRICT COURT
MAR 2 4 2023 SECOND JUDICIAL DISTRICT
COUNTY OF RAMSEY CIVIL COURT: HOUSING DIVISION
Court File Number: 62-HG-CV-23-507
Jeb O. Zaun,
Plaintzfl (Landlord), NOTICE OF MOTION AND
MOTION TO QUASH WRIT,
vs. VACATE JUDGMENT, AND
DISMISS CASE AS VOID FOR
Sean R' comoy' LACK OF PERSONAL
D efendant (Tenant). JURISDICTION
MOTION
I. MOTION TO VACATE AND DISMISS FOR LACK OF PERSONAL
JURISDICTION.
Defendant moves the Court to vacate judgment against them as void under Minn. R. Civ.
P. 60.02(d), quash any writ of recovery issued in this case, and dismiss this case for lack of personal
jurisdiction under Minn. R. Civ. P. 12.02(b). Where a party is not properly served, a court lacks
personal jurisdiction over that party and the judgment is void. Lange v. Johnson, 204 N.W.2d 205,
208 (Minn. 1973). Respectfully, this Court must vacate the judgment unconditionally as void and
dismiss this case, and may not consider other factors such as the existence of meritorious defense.
Henge] v. Hyatt, 252 N.W.2d 105, 106 (Minn. 1977).
Minnesota Statutes § 504B.331 sets out the service of process requirements for unlawful
detainer cases. The Minnesota Court of Appeals holds "that section 504B.331 requires strict
compliance, not merely substantial compliance." Koski v. Johnson, 837 N.W.2d 739, 744 (Minn.
Ct. App. 2013). That statute allows service by posting if:
service has been attempted at least twice on different days . . . and
1
(2) the plaintiff or the plaintiff's attorney has signed and filed with the
court an affidavit stating that: (i) the defendant cannot be found, or that
the plaintiff or the plaintiff's attorney believes that the defendant is not in
the state; and (ii) a copy of the summons has been mailed to the defendant
at the defendant's last known address if
any is known to the plaintiff.
Minn. Stat. § 504B.331(d) (2022) (emphasis added).
Section 504B.331(d) is a prerequisite to service by posting. The
past-tense of the actions
required ("service has been attempted . . . has signed and filed with the court an affidavit") and
inclusive conjunction "and" make clear that all steps must already have been
completed before
service by posting can be made. The plain text of Minn. Stat. §
504B.331(d) unambiguously
requires this order of service, and Koski requires plaintiffs in eviction cases follow that order to
the letter of the law.
Plaintiff alleges to have completed service by posting in this case. (Certificate of Posted
Service, Index # 5.) However, he has failed to meet the "strict compliance" standard required by
Koskz'. 837 N.W.2d at 744. The Certificate of Posted Service, signed by the Ramsey County
Sheriff's Deputy Danielle Bedney, states that service by posting was completed on February 28,
2023 at 11:24 AM.' (Certificate of Posted Service, Index # 5.) However, Plaintiff had not filed the
required affidavit of "not found" and mailing at that time. Plaintiff filed two separate affidavits
with the required substantive content. (Aff. of P1., Index # 6; Aff. of Service by Mail, Index # 7).
But the Court's metadata, in the top right of each affidavit, shows that those affidavits were filed
on February 28, at 5:34 PM.
The required affidavits were filed over six hours after service by posting was allegedly
completed. Compare Certificate of Posted Service, Index # 5, with Aff. of Pl., Index # 6, and Aff.
of Service by Mail, Index # 7. This makes service by posting in this case invalid. The law
1
While the Certificate does not specify A.M. or P.M., the other service attempt is reported in "military time,"
counting twenty-four hours rather than two repeating twelve-hour cycles.
2
unambiguously requires that personal service already have been attempted twice, and the required
affidavits be filed, before service of posting can be effective. Minn. Stat. 504B.331 (allowing
§
service by posting if "service has been attempted at least twice . . . and (2) the plaintiff or the
plaintiffs attorney has signed andfiled with the court an affidavit" of not found and mailing). And
the Court of Appeals has been clear: these requirements must be adhered to strictly. Koski, 837
N.W.2d at 745.
Because the proper affidavits were not filed before the Summons and
Complaint were
posted, Plaintiff did not strictly comply with the prerequisites to make service by posting in Minn.
Stat. § 504B.331(d)(2). Because Plaintiff fell short of the "strict
compliance" requirement,
Defendant were not properly served. See Koski, 837 N.W.2d at 745 (dismissing for lack of personal
jurisdiction because of "the absence of strict compliance"). Because Defendant was not properly
served, this Court has no personal jurisdiction over Defendant and its March 16 Judgment is void.
Lange, 204 N.W.2d at 208. Because the judgment is void, it must be vacated unconditionally and
the case dismissed for lack of personal jurisdiction. Koski, 837 N.W.2d at 74445.
Where a court lacks personal jurisdiction over a defendant due to improper service,
judgment must be unconditionally vacated as void. See Lange, 204 N.W.2d at 208. Personal
jurisdiction is the very foundation of due process. A case without personal jurisdiction must be
vacated and dismissed regardless of the procedural disposition when a motion is made under Minn.
R. Civ. P. 60.02 and 12.02(b). Respectfully, this case must be vacated and dismissed
unconditionally as void; no other factors may be considered. Henge], 252 N.W.2d at 106.
II. REQUESTS FOR STAY OF ENFORCEMENT, NO BOND REQUIREMENT,
AND APPLICABLE FEE AWARDS.
Defendant respectfully requests that the Court stay the enforcement of the March 16
Judgment, quash the March 17 Writ of Recovery, and issue an order directing the Ramsey County
Sheriff's Department to not take any action enforcing the March 17 Writ of Recovery pending the
outcome of this motion. Defendant further requests that the Court decline to order Defendant to
post bond as a condition of hearing this motion. No bond should be set in cases where a movant
alleges facts to support a claim that the judgment is void under Minn. R. Civ. P. 60.02(d). See
Village of Zumbrota v. Johnson, 161 N.W.2d 626 (1968); Pugsley v. Magerfleisch, 201 N.W. 323
(1924). Finally, if the Court grants this motion to vacate and dismiss, Defendant request sthat the
Court award $200 in costs under Minn. Stat. § 549.02, subd. 1.
Under Minn. R. Civ. P. 11, Defendant certifies that, to the best of their knowledge, this
document is not being presented for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation; the claims, defenses, and other
legal contentions therein are warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the establishment of new law; the allegations
and other factual contentions have evidentiary support or, if specifically so identified, are likely to
have evidentiary support after a reasonable opportunity for further investigation or discovery; the
denials of factual contentions are warranted on the evidence or, if specifically so identified, are
reasonably based on a lack of information or belief; and this document does not include any
restricted identifiers and that all restricted identifiers have been submitted in a confidential manner
as required by the Minnesota Rules of General Practice. Defendant acknowledges that they may
be fined or sanction by the court if this certification is false.
l declare under penalty of perjury that everything I have stated in this document is true
/l
and correct. Minn. Stat. § 358.116 (2022).
Dated:
fig Coan R.
488 Wabasha Street N, Apt. 506
(i2 St M St. Paul, MN 55102
V/ Defendant, pro se
County and State Where Signed
CERTIFIC TE OF SERVICE
I hereby certify that, on Z't /£o% , 2023, I deposited in the U.S. Mail an
envelope with correct postage addressed to:
Jeb O. Zaun
1170 Oakcrest Ave
Roseville, MN 55113
Plaintiff, pro se
A true and correct copy of the following document was enclosed in the envelope:
Notice of Motion and Motion to Quash Writ, Vacate Judgment, and Dismiss Case as
/
Void for Lack of Personal Jurisdiction
Dated Amy?
M5011
Conroy an R.
488 Wabasha Street N, Apt. 506
County and State Wheke Signed St. Paul, MN 55102
Defendant, pro se
5
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FILED 1N DISTRICT COURT STATE OF MINNESOTA STATE OF MINNESOTA DISTRICT COURT MAR 2 4 2023 SECOND JUDICIAL DISTRICT COUNTY OF RAMSEY CIVIL COURT: HOUSING DIVISION Court File Number: 62-HG-CV-23-507 Jeb O. Zaun, Plaintzfl (Landlord), NOTICE OF MOTION AND MOTION TO QUASH WRIT, vs. VACATE JUDGMENT, AND DISMISS CASE AS VOID FOR Sean R' comoy' LACK OF PERSONAL D efendant (Tenant). JURISDICTION MOTION I. MOTION TO VACATE AND DISMISS FOR LACK OF PERSONAL JURISDICTION. Defendant moves the Court to vacate judgment against them as void under Minn. R. Civ. P. 60.02(d), quash any writ of recovery issued in this case, and dismiss this case for lack of personal jurisdiction under Minn. R. Civ. P. 12.02(b). Where a party is not properly served, a court lacks personal jurisdiction over that party and the judgment is void. Lange v. Johnson, 204 N.W.2d 205, 208 (Minn. 1973). Respectfully, this Court must vacate the judgment unconditionally as void and dismiss this case, and may not consider other factors such as the existence of meritorious defense. Henge] v. Hyatt, 252 N.W.2d 105, 106 (Minn. 1977). Minnesota Statutes § 504B.331 sets out the service of process requirements for unlawful detainer cases. The Minnesota Court of Appeals holds "that section 504B.331 requires strict compliance, not merely substantial compliance." Koski v. Johnson, 837 N.W.2d 739, 744 (Minn. Ct. App. 2013). That statute allows service by posting if: service has been attempted at least twice on different days . . . and 1 (2) the plaintiff or the plaintiff's attorney has signed and filed with the court an affidavit stating that: (i) the defendant cannot be found, or that the plaintiff or the plaintiff's attorney believes that the defendant is not in the state; and (ii) a copy of the summons has been mailed to the defendant at the defendant's last known address if any is known to the plaintiff. Minn. Stat. § 504B.331(d) (2022) (emphasis added). Section 504B.331(d) is a prerequisite to service by posting. The past-tense of the actions required ("service has been attempted . . . has signed and filed with the court an affidavit") and inclusive conjunction "and" make clear that all steps must already have been completed before service by posting can be made. The plain text of Minn. Stat. § 504B.331(d) unambiguously requires this order of service, and Koski requires plaintiffs in eviction cases follow that order to the letter of the law. Plaintiff alleges to have completed service by posting in this case. (Certificate of Posted Service, Index # 5.) However, he has failed to meet the "strict compliance" standard required by Koskz'. 837 N.W.2d at 744. The Certificate of Posted Service, signed by the Ramsey County Sheriff's Deputy Danielle Bedney, states that service by posting was completed on February 28, 2023 at 11:24 AM.' (Certificate of Posted Service, Index # 5.) However, Plaintiff had not filed the required affidavit of "not found" and mailing at that time. Plaintiff filed two separate affidavits with the required substantive content. (Aff. of P1., Index # 6; Aff. of Service by Mail, Index # 7). But the Court's metadata, in the top right of each affidavit, shows that those affidavits were filed on February 28, at 5:34 PM. The required affidavits were filed over six hours after service by posting was allegedly completed. Compare Certificate of Posted Service, Index # 5, with Aff. of Pl., Index # 6, and Aff. of Service by Mail, Index # 7. This makes service by posting in this case invalid. The law 1 While the Certificate does not specify A.M. or P.M., the other service attempt is reported in "military time," counting twenty-four hours rather than two repeating twelve-hour cycles. 2 unambiguously requires that personal service already have been attempted twice, and the required affidavits be filed, before service of posting can be effective. Minn. Stat. 504B.331 (allowing § service by posting if "service has been attempted at least twice . . . and (2) the plaintiff or the plaintiffs attorney has signed andfiled with the court an affidavit" of not found and mailing). And the Court of Appeals has been clear: these requirements must be adhered to strictly. Koski, 837 N.W.2d at 745. Because the proper affidavits were not filed before the Summons and Complaint were posted, Plaintiff did not strictly comply with the prerequisites to make service by posting in Minn. Stat. § 504B.331(d)(2). Because Plaintiff fell short of the "strict compliance" requirement, Defendant were not properly served. See Koski, 837 N.W.2d at 745 (dismissing for lack of personal jurisdiction because of "the absence of strict compliance"). Because Defendant was not properly served, this Court has no personal jurisdiction over Defendant and its March 16 Judgment is void. Lange, 204 N.W.2d at 208. Because the judgment is void, it must be vacated unconditionally and the case dismissed for lack of personal jurisdiction. Koski, 837 N.W.2d at 74445. Where a court lacks personal jurisdiction over a defendant due to improper service, judgment must be unconditionally vacated as void. See Lange, 204 N.W.2d at 208. Personal jurisdiction is the very foundation of due process. A case without personal jurisdiction must be vacated and dismissed regardless of the procedural disposition when a motion is made under Minn. R. Civ. P. 60.02 and 12.02(b). Respectfully, this case must be vacated and dismissed unconditionally as void; no other factors may be considered. Henge], 252 N.W.2d at 106. II. REQUESTS FOR STAY OF ENFORCEMENT, NO BOND REQUIREMENT, AND APPLICABLE FEE AWARDS. Defendant respectfully requests that the Court stay the enforcement of the March 16 Judgment, quash the March 17 Writ of Recovery, and issue an order directing the Ramsey County Sheriff's Department to not take any action enforcing the March 17 Writ of Recovery pending the outcome of this motion. Defendant further requests that the Court decline to order Defendant to post bond as a condition of hearing this motion. No bond should be set in cases where a movant alleges facts to support a claim that the judgment is void under Minn. R. Civ. P. 60.02(d). See Village of Zumbrota v. Johnson, 161 N.W.2d 626 (1968); Pugsley v. Magerfleisch, 201 N.W. 323 (1924). Finally, if the Court grants this motion to vacate and dismiss, Defendant request sthat the Court award $200 in costs under Minn. Stat. § 549.02, subd. 1. Under Minn. R. Civ. P. 11, Defendant certifies that, to the best of their knowledge, this document is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief; and this document does not include any restricted identifiers and that all restricted identifiers have been submitted in a confidential manner as required by the Minnesota Rules of General Practice. Defendant acknowledges that they may be fined or sanction by the court if this certification is false. l declare under penalty of perjury that everything I have stated in this document is true /l and correct. Minn. Stat. § 358.116 (2022). Dated: fig Coan R. 488 Wabasha Street N, Apt. 506 (i2 St M St. Paul, MN 55102 V/ Defendant, pro se County and State Where Signed CERTIFIC TE OF SERVICE I hereby certify that, on Z't /£o% , 2023, I deposited in the U.S. Mail an envelope with correct postage addressed to: Jeb O. Zaun 1170 Oakcrest Ave Roseville, MN 55113 Plaintiff, pro se A true and correct copy of the following document was enclosed in the envelope: Notice of Motion and Motion to Quash Writ, Vacate Judgment, and Dismiss Case as / Void for Lack of Personal Jurisdiction Dated Amy? M5011 Conroy an R. 488 Wabasha Street N, Apt. 506 County and State Wheke Signed St. Paul, MN 55102 Defendant, pro se 5