New Rule 4 c 1 requires that all process, other than a subpoena or a summons and complaint, be served by the Marshals Service or by a person especially appointed for that purpose. Thus, the Marshals Service or persons specially appointed will continue to serve all process other than subpoenas and summonses and complaints, a policy identical to that proposed by the Supreme Court. The service of subpoenas is governed by Rule 45 , 17 and the service of summonses and complaints is governed by new Rule 4 c 2.
New Rule 4 c 2 A sets forth the general rule that summonses and complaints shall be served by someone who is at least 18 years old and not a party to the action or proceeding. This is consistent with the Court's proposal. Subparagraphs B and C of new Rule 4 c 2 set forth exceptions to this general rule.
Subparagraph B sets forth 3 exceptions to the general rule. First, subparagraph B i requires the Marshals Service or someone specially appointed by the court to serve summonses and complaints on behalf of a party proceeding in forma pauperis or a seaman authorized to proceed under 28 U.
This is identical to the Supreme Court's proposal. Second, subparagraph B ii requires the Marshals Service or someone specially appointed by the court to serve a summons and complaint when the court orders the marshals to do so in order properly to effect service in that particular action. Subparagraph C of new Rule 4 c 2 provides 2 exceptions to the general rule of service by a nonparty adult.
These exceptions apply only when the summons and complaint is to be served upon persons described in Rule 4 d 1 certain individuals or Rule 4 d 3 organizations. This restates the option to follow local law currently found in Rule 4 d 7 and would authorize service by mail if the state law so allowed. The method of mail service in that instance would, of course, be the method permitted by state law.
Second, subparagraph C ii permits service of a summons and complaint by regular mail. The sender must send to the defendant, by first-class mail, postage prepaid, a copy of the summons and complaint, together with 2 copies of a notice and acknowledgment of receipt of summons and complaint form and a postage prepaid return envelope addressed to the sender. If a copy of the notice and acknowledgment form is not received by the sender within 20 days after the date of mailing, then service must be made under Rule 4 c 2 A or B i.
New Rule 4 c 2 D permits a court to penalize a person who avoids service by mail. It authorizes the court to order a person who does not return the notice and acknowledgment form within 20 days after mailing to pay the costs of service, unless that person can show good cause for failing to return the form.
The purpose of this provision is to encourage the prompt return of the form so that the action can move forward without unnecessary delay. Fairness requires that a person who causes another additional and unnecessary expense in effecting service ought to reimburse the party who was forced to bear the additional expense. Subparagraph E of rule 4 c 2 requires that the notice and acknowledgment form described in new Rule 4 c 2 C ii be executed under oath or affirmation.
This provision tracks the language of 28 U. Statements made under penalty of perjury are subject to 18 U. The requirement that the form be executed under oath or affirmation is intended to encourage truthful submissions to the court, as the information contained in the form is important to the parties. New Rule 4 c 3 authorizes the court freely to make special appointments to serve summonses and complaints under Rule 4 c 2 B and all other process under Rule 4 c 1. This carries forward the policy of present Rule 4 c.
Paragraph 3 of section 2 of the bill makes a non-substantive change in the caption of Rule 4 d in order to reflect more accurately the provisions of Rule 4 d. Paragraph 3 also deletes a provision on service of a summons and complaint pursuant to state law.
This provision is redundant in view of new Rule 4 c 2 C i. Paragraph 4 of section 2 of the bill conforms Rule 4 d 5 to present Rule 4 d 4. Hence, the change is not a marked departure from current practice. Paragraph 5 of section 2 of the bill amends the caption of Rule 4 e in order to describe subdivision e more accurately. Paragraph 6 of section 2 of the bill amends Rule 4 g , which deals with return of service. Present rule 4 g is not changed except to provide that, if service is made pursuant to the new system of mail service Rule 4 c 2 C ii , the plaintiff or the plaintiff's attorney must file with the court the signed acknowledgment form returned by the person served.
Paragraph 7 of section 2 of the bill adds new subsection j to provide a time limitation for the service of a summons and complaint. New Rule 4 j retains the Supreme Court's requirement that a summons and complaint be served within days of the filing of the complaint.
This notification is mandated by subsection j if the dismissal is being raised on the court's own initiative and will be provided pursuant to Rule 5 which requires service of motions upon the adverse party if the dismissal is sought by someone else. See Appendix II, at 1d.
Advisory Committee Note. This new form is required by new Rule 4 c 2 C ii , which requires that the notice and acknowledgment form used with service by regular mail conform substantially to Form 18A. Form 18A as set forth in section 3 of the bill is modeled upon a form used in California. The first part is a notice to the person being served that tells that person that the enclosed summons and complaint is being served pursuant to Rule 4 c 2 C ii ; advises that person to sign and date the acknowledgment form and indicate the authority to receive service if the person served is not the party to the action e.
The notice also warns that if the complaint is not responded to within 20 days, a default judgment can be entered against the party being served. The notice is dated under penalty of perjury by the plaintiff or the plaintiff's attorney. The second part of the form contains the acknowledgment of receipt of the summons and complaint.
The person served must declare on this part of the form, under penalty of perjury, the date and place of service and the person's authority to receive service.
Section 4 of the bill provides that the changes in Rule 4 made by H. The delayed effective date means that service of process issued before the effective date will be made in accordance with current Rule 4.
Accordingly, all process in the hands of the Marshals Service prior to the effective date will be served by the Marshals Service under the present rule.
Section 5 of the bill provides that the amendments to Rule 4 proposed by the Supreme Court whose effective date was postponed by Public Law 97— shall not take effect. This is necessary because under Public Law 97— the proposed amendments will take effect on October 1, The Advisory Committee's draft is then reviewed by the Committee on Rules of Practice and Procedure, which must give its approval to the draft.
Any draft approved by that committee is forwarded to the Judicial Conference. If the Judicial Conference approves the draft, it forwards the draft to the Supreme Court. The Judicial Conference's role in the rule-making process is defined by 28 U. Edward Lumbard, id. See President's Statement on Signing H. This would authorize mail service if the state statute or rule of court provided for service by mail. This authority, however, was not seen as thwarting the underlying policy of limiting the use of marshals.
As a later statutory enactment, however, H. The interpretation of Rule 4 d 8 to require a refusal of delivery in order to have a basis for a default judgment, while undoubtedly the interpretation intended and the interpretation that reaches the fairest result, may not be the only possible interpretation. See note 8 supra. In adversity action, state law governs tolling. Walker v. Armco Steel Corp. In Walker , plaintiff had filed his complaint and thereby commenced the action under Rule 3 of the Federal Rules of Civil Procedure within the statutory period.
He did not, however, serve the summons and complaint until after the statutory period had run. The Court held that state law which required both filing and service within the statutory period governed, barring plaintiff's action. In the federal question action, the courts of appeals have generally held that Rule 3 governs, so that the filing of the complaint tolls a statute of limitation. United States v. Wahl , F. Environmental Enterprises Inc.
International Union of Operating Engineers , F. Halden , F. The continued validity of this line of cases, however, must be questioned in light of the Walker case, even though the Court in that case expressly reserved judgment about federal question actions, see Walker v. For example, a hostile defendant may have a history of injuring persons attempting to serve process. Federal judges undoubtedly will consider the risk of harm to private persons who would be making personal service when deciding whether to order the Marshals Service to make service under Rule 4 c 2 B iii.
Thus, a nonparty adult who receives the summons and complaint for service under Rule 4 c 1 may serve them personally or by mail in the manner authorized by Rule 4 c 2 C ii. Similarly, the Marshals Service may utilize the mail service authorized by Rule 4 c 2 C ii when serving a summons and complaint under Rule 4 c 2 B i iii. When serving a summons and complaint under Rule 4 c 2 B ii , however, the Marshals Service must serve in the manner set forth in the court's order.
If no particular manner of service is specified, then the Marshals Service may utilize Rule 4 c 2 C ii. It would not seem to be appropriate, however, for the Marshals Service to utilize Rule 4 c 2 C ii in a situation where a previous attempt to serve by mail failed. Thus, it would not seem to be appropriate for the Marshals Service to attempt service by regular mail when serving a summons and complaint on behalf of a plaintiff who is proceeding in forma pauperis if that plaintiff previously attempted unsuccessfully to serve the defendant by mail.
If the form is not returned to the sender within 20 days of that date, then the plaintiff must serve the defendant in another manner and the defendant may be liable for the costs of such service. Thus, a defendant would suffer the consequences of a misstatement about the date of mailing. Thus, where a defendant files a cross-claim against the plaintiff, the day period begins to run upon the filing of the cross-complaint, not upon the filing of the plaintiff's complaint initiating the action.
Purposes of Revision. The general purpose of this revision is to facilitate the service of the summons and complaint. The revised rule explicitly authorizes a means for service of the summons and complaint on any defendant.
While the methods of service so authorized always provide appropriate notice to persons against whom claims are made, effective service under this rule does not assure that personal jurisdiction has been established over the defendant served. First, the revised rule authorizes the use of any means of service provided by the law not only of the forum state, but also of the state in which a defendant is served, unless the defendant is a minor or incompetent.
Second, the revised rule clarifies and enhances the cost-saving practice of securing the assent of the defendant to dispense with actual service of the summons and complaint. Defendants that magnify costs of service by requiring expensive service not necessary to achieve full notice of an action brought against them are required to bear the wasteful costs. This provision is made available in actions against defendants who cannot be served in the districts in which the actions are brought.
Third, the revision reduces the hazard of commencing an action against the United States or its officers, agencies, and corporations. A party failing to effect service on all the offices of the United States as required by the rule is assured adequate time to cure defects in service. Fourth, the revision calls attention to the important effect of the Hague Convention and other treaties bearing on service of documents in foreign countries and favors the use of internationally agreed means of service.
In some respects, these treaties have facilitated service in foreign countries but are not fully known to the bar. Finally, the revised rule extends the reach of federal courts to impose jurisdiction over the person of all defendants against whom federal law claims are made and who can be constitutionally subjected to the jurisdiction of the courts of the United States. The present territorial limits on the effectiveness of service to subject a defendant to the jurisdiction of the court over the defendant's person are retained for all actions in which there is a state in which personal jurisdiction can be asserted consistently with state law and the Fourteenth Amendment.
A new provision enables district courts to exercise jurisdiction, if permissible under the Constitution and not precluded by statute, when a federal claim is made against a defendant not subject to the jurisdiction of any single state. The revised rule is reorganized to make its provisions more accessible to those not familiar with all of them.
Additional subdivisions in this rule allow for more captions; several overlaps among subdivisions are eliminated; and several disconnected provisions are removed, to be relocated in a new Rule 4. The Caption of the Rule. Service of process in eminent domain proceedings is governed by Rule 71A. Service of a subpoena is governed by Rule 45 , and service of papers such as orders, motions, notices, pleadings, and other documents is governed by Rule 5.
Unless service of the summons is waived, a summons must be served whenever a person is joined as a party against whom a claim is made. Those few provisions of the former rule which relate specifically to service of process other than a summons are relocated in Rule 4. Revised subdivision a contains most of the language of the former subdivision b.
The second sentence of the former subdivision b has been stricken, so that the federal court summons will be the same in all cases.
Few states now employ distinctive requirements of form for a summons and the applicability of such a requirement in federal court can only serve as a trap for an unwary party or attorney. A sentence is added to this subdivision authorizing an amendment of a summons. This sentence replaces the rarely used former subdivision 4 h. Revised subdivision b replaces the former subdivision a. The revised text makes clear that the responsibility for filling in the summons falls on the plaintiff, not the clerk of the court.
If there are multiple defendants, the plaintiff may secure issuance of a summons for each defendant, or may serve copies of a single original bearing the names of multiple defendants if the addressee of the summons is effectively identified. Paragraph 1 of revised subdivision c retains language from the former subdivision d 1.
Paragraph 2 retains language from the former subdivision a , and adds an appropriate caution regarding the time limit for service set forth in subdivision m. Subdivision c eliminates the requirement for service by the marshal's office in actions in which the party seeking service is the United States.
The United States, like other civil litigants, is now permitted to designate any person who is 18 years of age and not a party to serve its summons.
The court remains obligated to appoint a marshal, a deputy, or some other person to effect service of a summons in two classes of cases specified by statute: actions brought in forma pauperis or by a seaman. The court also retains discretion to appoint a process server on motion of a party.
If a law enforcement presence appears to be necessary or advisable to keep the peace, the court should appoint a marshal or deputy or other official person to make the service.
The Department of Justice may also call upon the Marshals Service to perform services in actions brought by the United States. Subdivision d. This text is new, but is substantially derived from the former subdivisions c 2 C and D , added to the rule by Congress in The aims of the provision are to eliminate the costs of service of a summons on many parties and to foster cooperation among adversaries and counsel.
The rule operates to impose upon the defendant those costs that could have been avoided if the defendant had cooperated reasonably in the manner prescribed. This device is useful in dealing with defendants who are furtive, who reside in places not easily reached by process servers, or who are outside the United States and can be served only at substantial and unnecessary expense.
Illustratively, there is no useful purpose achieved by requiring a plaintiff to comply with all the formalities of service in a foreign country, including costs of translation, when suing a defendant manufacturer, fluent in English, whose products are widely distributed in the United States. See Bankston v. Toyota Motor Corp. The former text described this process as service-by-mail.
This language misled some plaintiffs into thinking that service could be effected by mail without the affirmative cooperation of the defendant.
Mayo Foundation , F. It is more accurate to describe the communication sent to the defendant as a request for a waiver of formal service. The request for waiver of service may be sent only to defendants subject to service under subdivision e , f , or h. The United States is not expected to waive service for the reason that its mail receiving facilities are inadequate to assure that the notice is actually received by the correct person in the Department of Justice.
The same principle is applied to agencies, corporations, and officers of the United States and to other governments and entities subject to service under subdivision j. Moreover, there are policy reasons why governmental entities should not be confronted with the potential for bearing costs of service in cases in which they ultimately prevail.
Infants or incompetent persons likewise are not called upon to waive service because, due to their presumed inability to understand the request and its consequences, they must generally be served through fiduciaries. See 1 R. Casad, Jurisdiction in Civil Actions 2d Ed.
But, as Professor Casad observed, there was no reason not to employ this device in an effort to obtain service outside the state, and there are many instances in which it was in fact so used, with respect both to defendants within the United States and to defendants in other countries. The opportunity for waiver has distinct advantages to a foreign defendant. By waiving service, the defendant can reduce the costs that may ultimately be taxed against it if unsuccessful in the lawsuit, including the sometimes substantial expense of translation that may be wholly unnecessary for defendants fluent in English.
Moreover, a foreign defendant that waives service is afforded substantially more time to defend against the action than if it had been formally served: under Rule 12 , a defendant ordinarily has only 20 days after service in which to file its answer or raise objections by motion, but by signing a waiver it is allowed 90 days after the date the request for waiver was mailed in which to submit its defenses.
Because of the additional time needed for mailing and the unreliability of some foreign mail services, a period of 60 days rather than the 30 days required for domestic transmissions is provided for a return of a waiver sent to a foreign country.
Unless the addressee consents, receipt of the request under the revised rule does not give rise to any obligation to answer the lawsuit, does not provide a basis for default judgment, and does not suspend the statute of limitations in those states where the period continues to run until service.
Nor are there any adverse consequences to a foreign defendant, since the provisions for shifting the expense of service to a defendant that declines to waive service apply only if the plaintiff and defendant are both located in the United States.
With respect to a defendant located in a foreign country like the United Kingdom, which accepts documents in English, whose Central Authority acts promptly in effecting service, and whose policies discourage its residents from waiving formal service, there will be little reason for a plaintiff to send the notice and request under subdivision d rather than use convention methods.
On the other hand, the procedure offers significant potential benefits to a plaintiff when suing a defendant that, though fluent in English, is located in a country where, as a condition to formal service under a convention, documents must be translated into another language or where formal service will be otherwise costly or time-consuming. Paragraph 1 is explicit that a timely waiver of service of a summons does not prejudice the right of a defendant to object by means of a motion authorized by Rule 12 b 2 to the absence of jurisdiction over the defendant's person, or to assert other defenses that may be available.
The only issues eliminated are those involving the sufficiency of the summons or the sufficiency of the method by which it is served. Paragraph 2 states what the present rule implies: the defendant has a duty to avoid costs associated with the service of a summons not needed to inform the defendant regarding the commencement of an action. The text of the rule also sets forth the requirements for a Notice and Request for Waiver sufficient to put the cost-shifting provision in place.
Paragraph 2 A is explicit that a request for waiver of service by a corporate defendant must be addressed to a person qualified to receive service. The general mail rooms of large organizations cannot be required to identify the appropriate individual recipient for an institutional summons. Paragraph 2 B permits the use of alternatives to the United States mails in sending the Notice and Request.
While private messenger services or electronic communications may be more expensive than the mail, they may be equally reliable and on occasion more convenient to the parties. Especially with respect to transmissions to foreign countries, alternative means may be desirable, for in some countries facsimile transmission is the most efficient and economical means of communication.
If electronic means such as facsimile transmission are employed, the sender should maintain a record of the transmission to assure proof of transmission if receipt is denied, but a party receiving such a transmission has a duty to cooperate and cannot avoid liability for the resulting cost of formal service if the transmission is prevented at the point of receipt.
A defendant failing to comply with a request for waiver shall be given an opportunity to show good cause for the failure, but sufficient cause should be rare. It is not a good cause for failure to waive service that the claim is unjust or that the court lacks jurisdiction. Sufficient cause not to shift the cost of service would exist, however, if the defendant did not receive the request or was insufficiently literate in English to understand it.
Paragraph 3 extends the time for answer if, before being served with process, the defendant waives formal service. The extension is intended to serve as an inducement to waive service and to assure that a defendant will not gain any delay by declining to waive service and thereby causing the additional time needed to effect service.
By waiving service, a defendant is not called upon to respond to the complaint until 60 days from the date the notice was sent to it—90 days if the notice was sent to a foreign country—rather than within the 20 day period from date of service specified in Rule Paragraph 4 clarifies the effective date of service when service is waived; the provision is needed to resolve an issue arising when applicable law requires service of process to toll the statute of limitations.
Elmira Country Club , F. The provisions in former subdivision c 2 C ii of this rule may have been misleading to some parties. Some plaintiffs, not reading the rule carefully, supposed that receipt by the defendant of the mailed complaint had the effect both of establishing the jurisdiction of the court over the defendant's person and of tolling the statute of limitations in actions in which service of the summons is required to toll the limitations period.
The revised rule is clear that, if the waiver is not returned and filed, the limitations period under such a law is not tolled and the action will not otherwise proceed until formal service of process is effected.
Some state limitations laws may toll an otherwise applicable statute at the time when the defendant receives notice of the action. Nevertheless, the device of requested waiver of service is not suitable if a limitations period which is about to expire is not tolled by filing the action.
Unless there is ample time, the plaintiff should proceed directly to the formal methods for service identified in subdivisions e , f , or h. The procedure of requesting waiver of service should also not be used if the time for service under subdivision m will expire before the date on which the waiver must be returned.
While a plaintiff has been allowed additional time for service in that situation, e. Raymond Constr. It may be noted that the presumptive time limit for service under subdivision m does not apply to service in a foreign country. Paragraph 5 is a cost-shifting provision retained from the former rule. The costs that may be imposed on the defendant could include, for example, the cost of the time of a process server required to make contact with a defendant residing in a guarded apartment house or residential development.
The paragraph is explicit that the costs of enforcing the cost-shifting provision are themselves recoverable from a defendant who fails to return the waiver. In the absence of such a provision, the purpose of the rule would be frustrated by the cost of its enforcement, which is likely to be high in relation to the small benefit secured by the plaintiff. Some plaintiffs may send a notice and request for waiver and, without waiting for return of the waiver, also proceed with efforts to effect formal service on the defendant.
To discourage this practice, the cost-shifting provisions in paragraphs 2 and 5 are limited to costs of effecting service incurred after the time expires for the defendant to return the waiver. Moreover, by returning the waiver within the time allowed and before being served with process, a defendant receives the benefit of the longer period for responding to the complaint afforded for waivers under paragraph 3.
This subdivision replaces former subdivisions c 2 C i and d 1. It provides a means for service of summons on individuals within a judicial district of the United States. Together with subdivision f , it provides for service on persons anywhere, subject to constitutional and statutory constraints.
Service of the summons under this subdivision does not conclusively establish the jurisdiction of the court over the person of the defendant. A defendant may assert the territorial limits of the court's reach set forth in subdivision k , including the constitutional limitations that may be imposed by the Due Process Clause of the Fifth Amendment. Paragraph 1 authorizes service in any judicial district in conformity with state law.
This paragraph sets forth the language of former subdivision c 2 C i , which authorized the use of the law of the state in which the district court sits, but adds as an alternative the use of the law of the state in which the service is effected. Paragraph 2 retains the text of the former subdivision d 1 and authorizes the use of the familiar methods of personal or abode service or service on an authorized agent in any judicial district.
To conform to these provisions, the former subdivision e bearing on proceedings against parties not found within the state is stricken. Likewise stricken is the first sentence of the former subdivision f , which had restricted the authority of the federal process server to the state in which the district court sits. This subdivision provides for service on individuals who are in a foreign country, replacing the former subdivision i that was added to Rule 4 in Reflecting the pattern of Rule 4 in incorporating state law limitations on the exercise of jurisdiction over persons, the former subdivision i limited service outside the United States to cases in which extraterritorial service was authorized by state or federal law.
The new rule eliminates the requirement of explicit authorization. On occasion, service in a foreign country was held to be improper for lack of statutory authority.
Winder , F. This authority, however, was found to exist by implication. VTR, Inc. Given the substantial increase in the number of international transactions and events that are the subject of litigation in federal courts, it is appropriate to infer a general legislative authority to effect service on defendants in a foreign country. A secondary effect of this provision for foreign service of a federal summons is to facilitate the use of federal long-arm law in actions brought to enforce the federal law against defendants who cannot be served under any state law but who can be constitutionally subjected to the jurisdiction of the federal court.
Such a provision is set forth in paragraph 2 of subdivision k of this rule, applicable only to persons not subject to the territorial jurisdiction of any particular state. See 28 U. This Convention is an important means of dealing with problems of service in a foreign country.
See generally 1 B. Use of the Convention procedures, when available, is mandatory if documents must be transmitted abroad to effect service. See Volkswagenwerk Aktiengesellschaft v. Schlunk , U. Therefore, this paragraph provides that, when service is to be effected outside a judicial district of the United States, the methods of service appropriate under an applicable treaty shall be employed if available and if the treaty so requires.
The Hague Convention furnishes safeguards against the abridgment of rights of parties through inadequate notice. Article 15 provides for verification of actual notice or a demonstration that process was served by a method prescribed by the internal laws of the foreign state before a default judgment may be entered.
Article 16 of the Convention also enables the judge to extend the time for appeal after judgment if the defendant shows a lack of adequate notice either to defend or to appeal the judgment, or has disclosed a prima facie case on the merits. The Hague Convention does not specify a time within which a foreign country's Central Authority must effect service, but Article 15 does provide that alternate methods may be used if a Central Authority does not respond within six months.
Generally, a Central Authority can be expected to respond much more quickly than that limit might permit, but there have been occasions when the signatory state was dilatory or refused to cooperate for substantive reasons. In such cases, resort may be had to the provision set forth in subdivision f 3. Two minor changes in the text reflect the Hague Convention. The provision should not be interpreted to authorize use of a letter of request when there is in fact no treaty obligation on the receiving country to honor such a request from this country or when the United States does not extend diplomatic recognition to the foreign nation.
Paragraph 2 provides alternative methods for use when internationally agreed methods are not intended to be exclusive, or where there is no international agreement applicable. It contains most of the language formerly set forth in subdivision i of the rule. Service by methods that would violate foreign law is not generally authorized.
Subparagraphs A and B prescribe the more appropriate methods for conforming to local practice or using a local authority. Subparagraph C prescribes other methods authorized by the former rule. Paragraph 3 authorizes the court to approve other methods of service not prohibited by international agreements. The Hague Convention, for example, authorizes special forms of service in cases of urgency if convention methods will not permit service within the time required by the circumstances.
Other circumstances that might justify the use of additional methods include the failure of the foreign country's Central Authority to effect service within the six-month period provided by the Convention, or the refusal of the Central Authority to serve a complaint seeking punitive damages or to enforce the antitrust laws of the United States. In such cases, the court may direct a special method of service not explicitly authorized by international agreement if not prohibited by the agreement.
Inasmuch as our Constitution requires that reasonable notice be given, an earnest effort should be made to devise a method of communication that is consistent with due process and minimizes offense to foreign law.
A court may in some instances specially authorize use of ordinary mail. Levin v. Ruby Trading Corp. Subdivision g. This subdivision retains the text of former subdivision d 2. Provision is made for service upon an infant or incompetent person in a foreign country.
Subdivision h. This subdivision retains the text of former subdivision d 3 , with changes reflecting those made in subdivision e. It also contains the provisions for service on a corporation or association in a foreign country, as formerly found in subdivision i. Frequent use should be made of the Notice and Request procedure set forth in subdivision d in actions against corporations. Care must be taken, however, to address the request to an individual officer or authorized agent of the corporation.
It is not effective use of the Notice and Request procedure if the mail is sent undirected to the mail room of the organization. This subdivision retains much of the text of former subdivisions d 4 and d 5. Paragraph 1 provides for service of a summons on the United States; it amends former subdivision d 4 to permit the United States attorney to be served by registered or certified mail.
The rule does not authorize the use of the Notice and Request procedure of revised subdivision d when the United States is the defendant. To assure proper handling of mail in the United States attorney's office, the authorized mail service must be specifically addressed to the civil process clerk of the office of the United States attorney. Paragraph 2 replaces former subdivision d 5. Paragraph 3 saves the plaintiff from the hazard of losing a substantive right because of failure to comply with the complex requirements of multiple service under this subdivision.
That risk has proved to be more than nominal. This provision should be read in connection with the provisions of subdivision c of Rule 15 to preclude the loss of substantive rights against the United States or its agencies, corporations, or officers resulting from a plaintiff's failure to correctly identify and serve all the persons who should be named or served. Subdivision j. This subdivision retains the text of former subdivision d 6 without material change.
Many states allow out-of-state service on this type of claim. Your small claims court clerk will show you how this is handled in your state. All defendants on the plaintiff's claim or all plaintiffs on the defendant's claim must be served.
It is not enough to serve one defendant or plaintiff and assume that that person will tell the others. This is true even if the parties are married, live together, or do business together. There are several ways to serve papers on individual defendants.
All depend on your knowing where the defendant is. If you can't find the defendant personally and do not know where the person lives or works, you won't be able to complete service, and it probably makes little sense to file a lawsuit. Personal service means that someone hands the defendant the relevant papers. You have various options regarding who performs this task. Of course, if you use someone who doesn't personally know the defendant, the server will need to be particularly careful to serve the right person.
These are your options for who can serve the defendant. A mailbox isn't personal enough. No matter who serves the papers, if personal service is used, the claim and a summons must be handed to the defendant. You can't simply leave the paper at the defendant's job or home or in the mailbox.
If the process server locates the right person, but the person refuses to take the paper, acts hostile, or attempts to run away, the process server should simply put the paper down and leave. Valid service has been accomplished.
The process server should never try to use force to get a defendant to take any papers. Unfortunately, sheriff's offices in some states are getting out of the process-serving business. This means that you may have to hire a private person or company. Some of these are truly fly-by-night—they've figured out that process serving is a quick way to make a buck. You may even see them cruising around the courthouse looking for business. To make sure you're dealing with a business that backs up its promises, do a little research first.
One indicator of trustworthiness is how long the process server has been in business—ask to see a business license or look in the phone book for process servers who list the date their business was founded. You can also ask the small claims court clerk for a list of registered process servers.
If you know any lawyers, you can ask them for a recommendation. In the majority of states, you can serve papers by sending them to the defendant via certified mail with a return receipt requested. In some states, service by certified or registered mail is one among several ways you may serve papers.
Other states require you to try service by certified mail first, before any other method of service. Normally, the court clerk does the mailing for you and charges a small fee.
This is recoverable if you win. The mail method is both cheap and easy, but in most states the defendant must sign for the letter for this type of service to be effective. In a few states, service is accomplished even if a certified letter is rejected by the defendant.
Most businesses and many individuals routinely sign to accept their mail. Executed on date Signature ". Rule 4 h. Amendment of Process or Amendment of Proof of Service. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.
If service of the summons and complaint is not made upon a defendant within days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
This subdivision does not apply to service in a foreign country pursuant to Rule 4. The summons and pleading being served shall be served together. The party procuring service is responsible for service of a summons and the pleading being served within the time allowed under Rule 4 i of these Rules and shall furnish the person effecting service with the necessary copies of the pleading to be served.
Service upon an individual from whom a waiver has not been obtained and filed, other than those specified in paragraphs e , f and g of this Rule 4. Service upon a minor under the age of sixteen years shall be effected by service in the manner set forth in paragraph d of this Rule 4. Service upon a minor for whom a guardian or conservator has been appointed in this state shall be effected by service in the manner set forth in paragraph d of this Rule 4.
If a waiver has not been obtained and filed, service upon the state shall be effected by delivering a copy of the summons and of the pleading to the attorney general. Service upon a county or a municipal corporation or other governmental subdivision of the state subject to suit, and from which a waiver has not been obtained and filed, shall be effected by delivering a copy of the summons and of the pleading to the chief executive officer, the secretary, clerk, or recording officer thereof.
Service upon any governmental entity not listed above shall be effected by serving the person, officer, group or body responsible for the administration of that entity or by serving the appropriate legal officer, if any, representing the entity. Service upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit in a common name, and from which a waiver has not been obtained and filed, shall be effected by delivering a copy of the summons and of the pleading to a partner, an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the party on whose behalf the agent accepted or received service.
When a domestic corporation does not have an officer or agent in this state upon whom legal service of process can be made, service upon such domestic corporation shall be effected by depositing two copies of the summons and of the pleading being served in the office of the Corporation Commission, which shall be deemed personal service on such corporation. The return of the sheriff of the county in which the action or proceeding is brought that after diligent search or inquiry the sheriff has been unable to find any officer or agent of such corporation upon whom process may be served, shall be prima facie evidence that the corporation does not have such an officer or agent in this state.
The Corporation Commission shall file one of the copies in its office and immediately mail the other copy, postage prepaid, to the office of the corporation, or to the president, secretary or any director or officer of such corporation as appears or is ascertained by the Corporation Commission from the articles of incorporation or other papers on file in its office, or otherwise.
If service by one of the means set forth in the preceding paragraphs of this Rule 4. Whenever the court allows an alternate or substitute form of service pursuant to this subpart, reasonable efforts shall be undertaken by the party making service to assure that actual notice of the commencement of the action is provided to the person to be served and, in any event, the summons and the pleading to be served, as well as any order of the court authorizing an alternative method of service, shall be mailed to the last known business or residence address of the person to be served.
Service by publication may be employed only under the circumstances, and in accordance with the procedures, specified in Rules 4. Where the person to be served is one whose residence is unknown to the party seeking service but whose last known residence address was within the state, or has avoided service of process, and service by publication is the best means practicable under the circumstances for providing notice of the institution of the action, then service may be made by publication in accordance with the requirements of this subpart.
Such service shall be made by publication of the summons, and of a statement as to the manner in which a copy of the pleading being served may be obtained, at least once a week for four successive weeks 1 in a newspaper published in the county where the action is pending, and 2 in a newspaper published in the county of the last known residence of the person to be served if different from the county where the action is pending.
If no newspaper is published in any such county, then the required publications shall be made in a newspaper published in an adjoining county. The service shall be complete thirty days after the first publication. The party or officer making service shall file an affidavit showing the manner and dates of the publication and mailing, and the circumstances warranting the utilization of the procedure authorized by this subpart, which shall be prima facie evidence of compliance herewith.
A printed copy of the publication shall accompany the affidavit. If the residence of the party being served is unknown, and for that reason no mailing was made, the affidavit shall so state. When in an action for the foreclosure of a mortgage on real property or in any action involving title to real property, it is necessary for a complete determination of the action that the unknown heirs of a deceased person be made parties, they may be sued as the unknown heirs of the decedent, and service of a summons may be made on them by publication in the county where the action is pending, as provided in subpart n of this Rule 4.
A court of this state may exercise personal jurisdiction over parties,. Service upon any such party located outside the state may be made as provided in this Rule 4. Direct Service Service of process may be made outside the state. Such service shall be complete when made and time for purposes of Rule 4. Service by Mail; Return When the whereabouts of a party outside the state is known,. Service may be made by depositing the summons and a copy of the pleading being served in the post office, postage prepaid, to be sent to the person to be served by any form of mail requiring a signed and returned receipt.
Upon return through the post office of the signed receipt, the serving party shall file an affidavit with the court stating.
0コメント