Starkebaum v. Locating

Background

Martin D. Starkebaum, proceeding without a lawyer (pro se), filed suit against Precision Locating, LLC ("Precision") and Arvig Enterprises, Inc. ("Arvig"), alleging violations of Title VII of the Civil Rights Act of 1964 and Minnesota law. The complaint relates to conduct connected to a September 2024 settlement agreement between Starkebaum and Precision. Starkebaum was formerly employed by Precision.

Starkebaum intended to file in Minnesota state court. On March 30, 2026, through a process server, he attempted personal service on both defendants at their shared registered address in Perham, Minnesota. The process server delivered copies of the summons and complaint to Josie Winkels, whom the affidavits of service described as the "Corporate Secretary" of both defendants and as authorized to accept service on their behalf.

Winkels submitted a declaration stating she is Arvig's executive administrative assistant, is not a member of management, has never been an employee or representative of Precision, and is not authorized to accept service of process on behalf of either defendant. She stated the process server asked whether she was the "corporate executive administrative assistant," she confirmed she was, and the server left two sets of documents which she signed for.

On April 28, 2026, defendants filed a notice of removal in both federal and state court and simultaneously moved to dismiss the complaint for insufficient service of process, lack of personal jurisdiction, and failure to state a claim. On May 6, 2026, Starkebaum moved to remand.

Legal Framework: Removal and Minnesota's Commencement Rules

Under 28 U.S.C. § 1441(a), a civil action "brought in a State court" may be removed to federal court if the federal court would have original jurisdiction. Federal courts interpret "brought" to mean "commenced." Because this case originated in Minnesota, the court looked to Minnesota law to determine whether the action had commenced.

Unlike federal court and most state courts, Minnesota does not commence a civil action upon the filing of a complaint. Under Minnesota Rule of Civil Procedure 3.01, a civil action commences only when: (1) a summons is personally served on the defendant; (2) the defendant signs a waiver of service; or (3) the summons is delivered to the sheriff in the county where the defendant resides. This is sometimes called Minnesota's "hip-pocket service" procedure. If an action has not commenced under one of these three methods, removal is premature.

There was no dispute that the court had original jurisdiction over the Title VII claim under 28 U.S.C. § 1331. The question was solely whether the action had commenced before removal.

Whether Service Was Effective

For personal service on a corporation or LLC to be effective under Minnesota Rule of Civil Procedure 4.03(c), the summons must be delivered to "an officer or managing agent, or to any other agent authorized expressly or impliedly or designated by statute to receive service of summons." Authorized agents under Minnesota Statutes § 5.25 include a registered agent or a manager or general partner.

The court found that Winkels was not authorized to accept service on behalf of either defendant. Starkebaum did not claim she was an officer; he relied on the process server's affidavits, which stated she identified herself as "Corporate Secretary" and said she was authorized to accept service. Winkels and additional evidence from defendants disputed this, establishing she held the title of "Executive Administrative Assistant" for Arvig, held no position on Arvig's board, and had no role at Precision.

The court cited established Minnesota authority that administrative assistants "entrusted with the receipt of deliveries" are not managing agents and are not authorized to accept personal service on behalf of a business entity. Even if Winkels had stated she was authorized, her self-designation as an administrative assistant and her willingness to accept process are insufficient under Minnesota law to establish the required express or implied authority. The court also noted that even though Winkels apparently forwarded the documents to an officer or managing agent, and defendants had actual knowledge of the lawsuit, actual knowledge does not create personal jurisdiction absent compliance with service rules.

The court also addressed Starkebaum's argument that service on Arvig constituted service on Precision because of overlap between the entities (including a North Dakota registration identifying Arvig as Precision's registered agent). The court found this argument unavailing because Precision's Minnesota registration shows no registered agent, and in any event service on Arvig itself was ineffective and could not serve as effective service on Precision.

Because service was ineffective, the action did not commence under Rule 3.01(a). There was no evidence of a waiver of service or delivery to a sheriff, so the action did not commence under Rule 3.01(b) or (c) either.

The Removal Was Premature; Remand Required

Because the action never commenced under Minnesota law, removal was premature. The court followed Metivier v. Deutsche Bank Tr. Co. Ams. ex rel. Residential Accredit Loans, Inc., No. 19-cv-2929 (ECT/BRT), 2020 WL 2215725 (D. Minn. May 7, 2020), which involved essentially the same issue and which both parties had cited. In Metivier, the court concluded that when an action has not formally commenced under state law, removal is premature and remand is required. The court noted the incongruence between Minnesota's commencement rules and the federal removal statutes, and observed that defendants' own argument for dismissal based on defective service — which would mean the case never commenced — was internally inconsistent with their argument against remand.

The court resolved any doubts about the propriety of removal in favor of remand, as required by Eighth Circuit precedent.

Costs and Expenses

Starkebaum requested an award of costs and expenses under 28 U.S.C. § 1447(c), which permits such an award where removal was improper. However, the Supreme Court has held that costs may be awarded only where the removing party lacked an objectively reasonable basis for seeking removal. Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). The court declined to award costs, finding that defendants had an objectively reasonable basis for removal: had service been effective and the action commenced, the case would have been removable because the court has original jurisdiction over the Title VII claim. The impropriety of removal was attributable to the mismatch between Minnesota's rules and the federal removal statute, not to unreasonable conduct by defendants.

Disposition

The court noted that an unsuccessful first attempt at removal does not necessarily bar a second attempt, and that if the action commences after remand — such as upon effective personal service or waiver of service — a second removal attempt may follow.