United States District Court, D. Minnesota
J. Hartnett, Esq., Kyle R. Hardwick, Esq. and Faegre Baker
Daniels LLP, counsel for plaintiff.
Todd Koebele, Esq., John Paul J. Gatto, Esq., Ryan Malone,
Esq. and HKM Law Group, counsel for defendant.
S. Doty, Judge
matter is before the court upon the motion to vacate default
judgment by defendant TriVis, Inc. Based on a review of the
file, record, and proceedings herein, and for the following
reasons, the court grants the motion.
dispute arises from services performed by TriVis for
plaintiff Xcel Energy. In 1999, David Bland incorporated
TriVis under the laws of Alabama for the purpose of providing
nuclear waste services. Bland Decl. ¶¶ 1-2. Bland
served as the company's president and registered agent
for service in Alabama. Id. ¶ 3. In 2008,
TriVis filed a certificate of authority to transact business
in Minnesota with the Minnesota Secretary of State,
appointing Patrick Smith, a former TriVis employee, as the
registered agent for service. Id. ¶¶ 4-5.
On August 7, 2012, the Minnesota Secretary of State revoked
the certificate, most likely for failing to pay the annual
fee. Id. ¶ 6; Gatto Aff. Ex D, ECF No. 18-2.
March 18, 2013, Xcel contracted with TriVis to dispose of
spent nuclear fuel rods at the Monticello, Minnesota nuclear
plant. Gatto Aff. Ex. B ¶¶ 4-5, ECF No. 18. TriVis
allegedly failed to follow proper procedures in disposing of
the nuclear rods, which led Xcel to terminate the contract
and triggered a regulatory investigation. See id.
Ex. I ¶¶ 16-17; Hartnett Decl. Ex. 3, ECF No. 24.
In June 2014, Bland informed Xcel that TriVis would be going
out of business due to the Monticello event. Hartnett Decl.
Ex. 7. On October 8, 2014, TriVis filed articles of
dissolution with the Alabama Secretary of State. See
id Ex. 10.
September 2015, Xcel brought claims against TriVis for breach
of contract and negligent misrepresentation in Hennepin
County. See Gatto Aff. Ex. B. On September 18, Xcel
attempted to serve TriVis at its registered address in
Alabama, but failed because TriVis had shut down operations.
Hartnett Decl. Ex. 11. In an another attempt to effect
service, on September 23, Xcel served the summons and
complaint on the Minnesota Secretary of State pursuant to
Minn. Stat. § 5.25, subd. 4(b). See Gatto Aff.
Exs. C, E. Xcel requested that the secretary mail the summons
and complaint to TriVis' Alabama address, but the
secretary sent the documents to TriVis' registered office
address in Clear Lake, Minnesota, which was also returned as
undeliverable. See id. Ex. F. Subsequently, on
September 24, Xcel mailed the civil cover sheet for the
summons and complaint by certified mail to TriVis'
Alabama address, which was, again, returned as undeliverable.
See Hartnett Decl. Ex. 12.
moved for a default judgment against TriVis, which the state
court granted on December 3, 2015, for the amount of $10,
020, 355, plus pre- and post-judgment interest and
reimbursement of Xcel's costs and disbursements.
See Gatto Aff. Ex. A. Shortly thereafter, Xcel
instituted garnishment proceedings against several insurers
of TriVis, which was timely removed to this court. See N.
States Power Co. v. TriVis, Inc., No. 16-51, 2016 WL
2621953, at *2 (D. Minn. May 6, 2016). Garnishee Underwriters
at Lloyds, London contacted Bland concerning the suit on
February 5, 2016. Bland Decl. ¶ 14. Bland testified that
this is the fist time he learned of Xcel's suit.
Id. Separate from the garnishment action, TriVis
removed the complaint and default judgment on August 19. On
October 21, TriVis filed the instant motion to vacate the
argues that the court should vacate the default judgment
because the state court's judgment is void under
Fed.R.Civ.P. 60(b)(4). The judgment of a court is void if the
defendant was not properly served. See Printed Media
Servs. Inc. v. Solna Web, Inc., 11 F.3d 838, 843 (8th
Cir. 1993) (“If a defendant is improperly served, a
federal court lacks jurisdiction over the defendant.”).
The court looks to state law in determining whether service
was sufficient. See Barner v. Thompson/Ctr. Arms
Co., 796 F.3d 897, 900 (“In a case that has been
removed from state court, the sufficiency of service prior to
removal is determined by state law ....”).
state court's judgment is void for lack of service, a
federal court has the authority to vacate the judgment.
See Johnson v. Arden, 614 F.3d 785, 799 (8th Cir.
2010) (affirming district court's order vacating a state
court judgment for lack of personal jurisdiction); see
also Jenkinds v. MTGLQ Inv'rs, 218 F. App'x 719,
724 (10th Cir. 2007) (“The district court then could
set aside the [state court's] default judgment under
Fed.R.Civ.P. 55(c) and 60(b).”). The court has no
discretion in granting relief from a void judgment.
Johnson, 614 F.3d at 799.
argues that Xcel's service of process under Minn. Stat.
§ 5.25 was insufficient, and the court agrees. Minnesota
law provides that service of process may be effected on a
foreign corporation “whenever the certificate of
authority of a foreign corporation is revoked or
canceled” by delivering to the Minnesota Secretary of
State the documents to be served. Minn. Stat. § 5.25
subdiv 4(b). When service is effected by the secretary of
state, the secretary must forward the copy of service of
process addressed to the business entity: (1) at the
registered office in Minnesota; (2) at the address designated
in the application for withdrawal, if the business entity has
withdrawn from Minnesota; (3) at the address provided by the
submitting party, if the business' authority to do
business in Minnesota has been revoked; or (4) at the address
provided by the submitting party, if the business was never
authorized to do business in Minnesota. Minn. Stat. §
5.25 subdiv. 6. Where a business entity has had its authority
to transact business in Minnesota revoked, “service
must be made” according to the third or fourth options
listed above. Minn. Stat. § 5.25 subdiv. 5(c).
TriVis' authority to do transact business in the state
had been revoked; therefore, the statute required the
secretary of state to send service of process to the address
provided by Xcel. But the secretary sent the service of
process to TriVis' Minnesota address, not the Alabama