Nygaard v. Taylor et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
AARINNYGAARD,and
TERRANCE STANLEY,
Plaintiffs,
vs.
TRICIA TAYLOR,TED TAYLOR,JR.,
JESSICA DUCHENEAUX,ED
DUCHENEAUX, CHEYENNE RIVER SIOUX
TRIBAL COURT,BRENDA CLAYMORE,IN
HER OFFICIAL CAPACITY AS CHIEF
JUDGE,CHEYENNE RIVER SIOUX TRIBAL
COURT OF APPEALS;FRANK
POMMERSHEIM,IN HIS OFFICIAL
CAPACITY AS CHIEF JUSTICE; THE
SOUTH DAKOTA DEPARTMENT OF
SOCIAL SERVICES,TODD WALDO,IN HIS
OFFICIAL CAPACITY AS SOCIAL
WORKER;and JENNY FARLEE,IN HER
OFFICAL CAPACITY AS SOCIAL WORKER,
Defendants.
3:I9-CV-030I6-RAL
ORDER DIRECTING SERVICE OF
SUMMONS BY PUBLICATION UPON
TRICIA TAYLOR
Plaintiffs Aarin Nygaard and Terrence Stanley filed an application with this Court
requesting an order directing service ofsummons by publication upon Tricia Taylor as well as an
affidavit in support thereof. Docs. 32,33. This Court had previously granted the plaintiffs' request
to order service by the United States Marshal Service upon certain respondents, including Tricia
Taylor. The United States Marshal Service was able to successfully serve certain other defendants
in this case, but they were unable to locate and serve Tricia Taylor despite diligent efforts. The
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United States Marshal Service separately reported to the undersigned that Tricia Taylor appears to
be transient on the Cheyenne River Sioux Indian Reservation, and currently is not listed among
inmates in South Dakota or North Dakota state custody. The plaintiffs now seek to serve Tricia
Taylor by publication in the West River Eagle, a weekly newspaper published in Eagle Butte,
South Dakota, by running the summons for four consecutive weeks.
Under Federal Rule of Civil Procedure 4(e)(1), an individual may be served in any manner
allowed by the law of the state where the district court is located or where service is made.
Therefore, South Dakota law governs service of process in this Court. Under South Dakota law,
"[a] summons . . . may be served by publication ...[w]here the person on whom the service of
the summons . . . cannot, after due diligence, be found within the state and that fact appears by
affidavit to the satisfaction of the court." SDCL § 15-9-7. For a party to establish due diligence,
"it must be shown that all reasonable means have been exhausted in an effort to locate interested
parties." Rvken v. South Dakota. 305 N.W.2d 393, 395(S.D. 1991)(citation omitted)."A diligent
search is measured not by the quantity of the search but the quality ofthe search." In re D.F.. 727
N.W.2d 481,484(S.D. 2007)(citation omitted). Substituted service by publication is valid only if
there is a court order approving such service. See Spade v. Branum. 643 N.W.2d 765, 769-70
(S.D. 2002)(finding that service by publication was invalid due to the plaintiffs failure to procure
a court order approving substituted service).
Service by publication must also comply with due process standards set forth in Mullane
V. Central Hanover Bank & Trust Co.. 339 U.S. 306, 31Tt-15 (1950). "An elementary and
fundamental requirement of due process in any proceeding ... is notice reasonably calculated ...
to apprise interested parties of the pendency of the action." Id. at 314. If service of process does
not meet the Mullane standard, a court lacks jurisdiction over the defendant. Church v. Nelson.
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4:19-CV-04193-KES,2020 WL 4001241,at *3(D.S.D. July 15,2020)letting Printed Media Serv..
Inc. V. Solna Web. Inc.. 11 F. 3d 838, 843 (8th Cir. 1993)).
If service by publication is appropriate, SDCL § 15-9-17 addresses the specific
requirements for a court order directing service by publication. Section 15-9-17 provides:
... Except in actions affecting real property, the order must direct the publication
to be made in some newspaper in the county where the action is pending to be
designated as most likely to give notice to the person to be served and for such
length of time as may be deemed reasonable, not less than once a week for four
successive weeks.
SDCL § 15-9-17. After the notice has been published at least weekly for four successive weeks,
the defendant's opportunity to respond would then "commence to run the day next following such
last publication." SDCL § 15-9-21. This means that the defendant would have 21 days to respond
after the last day of publication. S^ Fed. R. Civ. P. 12(a)(l)(A)(i).
The Cheyenne River Sioux Tribe also authorizes service by publication under similar
circumstances. Rule 4(d)(7) ofthe Cheyenne River Sioux Tribe Rules ofProcedure provides:
service shall be made ...[ujpon an individual or entity who, after diligent effort,
cannot be personally served, service by publication can be made pursuant to an
order of the court by publishing the contents of the summons and complaint in a
newspaper published in the county ofthe individual or entity's last known address
or residence ... once a week for not less than four successive weeks.
As discussed above, this Court must apply the Federal Rules of Civil Procedure which in turn
allows service of process in any manrier authorized under South Dakota law. Even so, it is worth
noting that the outcome would be the same in this case if this Court applied the Cheyenne River
Sioux Tribal Rules ofProcedure.
Service by publication is appropriate in this case. The United States Marshal Service has
made diligent efforts to locate and serve Tricia Taylor. Doc. 33 at 2, 4. Yet they have been
unable to locate her at her last known address or otherwise, and the Summons was returned
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unserved. Doc.33 at 2,4,6. Petitioners have properly submitted an affidavit to this effect. Doc.
33. Tricia Taylor's last known address was in Eagle Butte, South Dakota, and publication in a
newspaper distributed in Dewey and Ziebach Counties,the two counties comprising the Cheyenne
River Sioux Indian Reservation, makes sense and best satisfies Due Process concerns and SDCL
Chapter 15-9. Doc. 33 at ^ 5. Petitioners believe she is still living in that area. Doc. 32 at 4; Doc.
33 at H 7. As such, this Court finds that serving Tricia Taylor by publication in the West River
Eagle each week for four consecutive weeks is reasonably calculated to apprise her of notice of
the pendency ofthe current action. It is hereby
ORDERED that Petitioners execute service ofsummons upon Respondent Tricia Taylor
by publication in the West River Eagle once a week for four consecutive weeks in compliance
with SDCL Chapter 15-9.
DATED this 4th day of March,2021.
BY THE COURT:
:OBERTO A. LANCjE	ROBERTO
CHIEF JUDGE
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