What is “Hip-Pocket Service”?
In Minnesota state court, unlike most states, a civil action is commenced upon service of the summons and complaint, not by filing. This is known as “hip-pocket service.” If you, or your client, is served with a summons and complaint with a Minnesota state court caption but no court file number, do you have to respond? The answer is yes! You must answer or otherwise respond (for example with a motion to dismiss) within 21 days, or obtain an extension, or you will be technically in default. Default judgment is not automatic, and it can be vacated, but you should not ignore a Minnesota summons and complaint just because it is served but not filed. Actions in federal court in Minnesota are commenced by filing pursuant to the Federal Rules of Civil Procedure.
Because a case is “commenced” upon service in Minnesota any applicable statute of limitations is tolled as of the date of service. The plaintiff may choose to file immediately after obtaining an affidavit of service. Or a defendant may file the case with the applicable court. But often neither party has a strong incentive to file right away. Surprisingly, at least to some, the parties may even serve written discovery and take depositions in a non-filed case. Often these cases get settled without ever having been filed.
Why would a party not want to file a case? The primary reason is that until the case is filed it remains out of the public eye and is otherwise confidential. When and if the case is filed it becomes a matter of public record. And, starting in 2021, pleadings in Minnesota state court civil cases can be publicly accessed on the internet by anyone. Because lawsuits sometimes involve embarrassing or private information resolving a case without filing it may be appealing, and may even be an incentive for settlement. Hip-pocket service means “a plaintiff may serve one or more defendants and keep the complaint in his pocket rather than make a public filing.” Harris v. Chase Bank USA N.A., No 12-669 (JNE/AJB) (D. Minn. 2012). Not filing also saves filing fees and reduces the burden on the courts.
According to a law review article, “Minnesota is one of only three states in the union, along with South Dakota and North Dakota, in which it is possible to commence an action, engage in lengthy discovery, and reach a settlement without ever filing.” Muchlinksi, Joe (2015) “Constraining Minnesota’s Hip-Pocket Regime: Too Much or Not Enough? (Or Both?) (Or Neither?)” William Mitchel Law Review, Vol. 41, Issue 4. Minnesota’s rule dates back to 1851 and is currently found in Rule 3.01(a) of the Minnesota Rules of Civil Procedure which states, “[a] civil action is commenced against each defendant (a) when the summons is served upon that defendant. . .” Service can also be effectuated by sending a summons by mail and receiving back a signed acknowledgment or delivering the summons to the sheriff where the defendant resides, so long as the sheriff actually serves the defendant within sixty days thereafter.
The Requirement of Rule 5.04 of the Minnesota Rules of Civil Procedure.
Although hip-pocket service has existed in Minnesota for over a century, effective as of July 1, 2013, the Minnesota Supreme Court put a constraint on this concept. Rule 5.04 of the Minnesota Rules of Civil Procedure was amended to include the following language:
(a) Deadline for Filing Action. Any action that is not filed with the court within one year of commencement against any party is deemed dismissed with prejudice against all parties unless the parties within that year sign a stipulation to extend the filing period. This paragraph does not apply to family cases governed by Rules 301 to 378 of the General Rules of Practice for the District Courts.
This means that the action must be filed within one year of service or it will be dismissed with prejudice. This is a very harsh consequence, so plaintiff attorneys availing themselves of this process must be very careful to keep this deadline in mind.
If you have questions about hip-pocket service, or need local counsel in Minnesota, contact the Minnesota litigation attorneys at Trepanier MacGillis Battina P.A.
About the Author
Trepanier MacGillis Battina P.A. is a civil litigation law firm located in Minneapolis, Minnesota. Their attorneys can be reached at 612.455.0500.