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Maine Foreclosure Process Server Laws

By admin | April 9, 2010

RULE 4. Process
(a) Summons: Form. The summons shall bear the signature or facsimile signature of the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, and the time within which these rules require the defendant to appear and defend, and shall notify the defendant that in case of failure to do so judgment by default will be rendered against the defendant for the relief demanded in the complaint.
(b) Same: Issuance. The summons may be procured in blank from the clerk and shall be filled out by the plaintiff’s attorney as provided in subdivision (a) of this rule. The plaintiff’s attorney shall deliver to the person who is to make service the original summons upon which to make return of service and a copy of the summons and of the complaint for service upon the defendant.
(c) Service. Service of the summons and complaint may be made as follows:
(1) By mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment form and a return envelope, postage prepaid, addressed to the sender. If no acknowledgment of service under this paragraph is received by the sender within 20 days after the date of mailing, service of the summons and complaint shall be made under paragraph (2) or (3) of this subdivision.
(2) By a sheriff or a deputy within the sheriff’s county, or other person authorized by law, or by some person specially appointed by the court for that purpose. Special appointments to serve process shall be made freely when substantial savings in travel fees will result.
(3) By any other method permitted or required by this rule or by statute.
(d) Summons: Personal Service. The summons and complaint shall be served together. Personal service within the state shall be made as follows:
(1) Upon an individual other than minor or an incompetent person, by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process, provided that if the agent is one designated by statute to receive service, such further notice as the statute requires shall be given. The court, on motion, upon a showing that service as prescribed above cannot be made with due diligence, may order service to be made by leaving a copy of the summons and of the complaint at the defendant’s dwelling house or usual place of abode; or to be made by publication pursuant to subdivision (g) of this rule, if the court deems publication to be more effective.
(2) Upon a minor, by delivering a copy of the summons and of the complaint personally (a) to the minor and (b) also to the minor’s guardian if the minor has one within the state, known to the plaintiff, and if not, then to the minor’s father or mother or other person having the minor’s care or control, or with whom the minor resides, or if service cannot be made upon any of them, then as provided by order of the court.
(3) Upon an incompetent person, by delivering a copy of the summons and of the complaint personally (a) to the guardian of the incompetent person or a competent adult member of the incompetent person’s family with whom the incompetent person resides, or if the incompetent person is living in an institution, then to the director or chief executive officer of the institution, or if service cannot be made upon any of them, then as provided by order of the court and (b) unless the court otherwise orders, also to the incompetent person.
(4) Upon a county, by delivering a copy of the summons and of the complaint to one of the county commissioners or their clerk or the county treasurer.
(5) Upon a town, by delivering a copy of the summons and of the complaint to the clerk or one of the selectmen or assessors.
(6) Upon a city, by delivering a copy of the summons and of the complaint to the clerk, treasurer, or manager.
(7) Upon the United States, by delivering a copy of the summons and of the complaint to the United States attorney for the district of Maine or to an assistant United States attorney or clerical employee designated by the United States attorney in a writing filed with the clerk of the United States District Court for the district of Maine and by sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia, and in any action attacking the validity of an order of an officer or agency of the United States not made a party, by also sending a copy of the summons and of the complaint by registered or certified mail to such officer or agency provided that any further notice required by statute or regulation shall also be given.
Upon an officer or agency of the United States, by serving the United States and by delivering a copy of the summons and of the complaint to such officer or agency, provided that any further notice required by statute or regulation shall also be given. If the agency is a corporation the copy shall be delivered as provided in paragraph (8) or (9) of this subdivision of this rule.
Upon any other public corporation, by delivering a copy of the summons and of the complaint to any officer, director, or manager thereof and upon any public body, agency or authority by delivering a copy of the summons and the complaint to any member thereof.
(8) Upon a domestic private corporation (a) by delivering a copy of the summons and of the complaint to any officer, director or general agent; or, if no such officer or agent be found, to any person in the actual employment of the corporation; or, if no such person be found, to the Secretary of State, provided that the plaintiff’s attorney shall also send a copy of the summons and of the complaint to the corporation by registered or certified mail, addressed to the corporation’s principal office as reported on its latest annual return; or (b) by delivering a copy of the summons and of the complaint to any agent or attorney in fact authorized by appointment or by statute to receive or accept service on behalf of the corporation, provided that any further notice required by the statute shall also be given.
(9) Upon a corporation established under the laws of any other state or country (a) by delivering a copy of the summons and of the complaint to any officer, director or agent, or by leaving such copies at an office or place of business of the corporation within the state; or (b) by delivering a copy of the summons and of the complaint to any agent or attorney in fact authorized by appointment or by statute to receive or accept service on behalf of the corporation, provided that any further notice required by the statute shall also be given.
(10) Upon a partnership subject to suit in the partnership name in any action, and upon all partners whether within or without the state in any action on a claim arising out of partnership business, (a) by delivering a copy of the summons and of the complaint to any general partner or any managing or general agent of the partnership, or by leaving such copies at an office or place of business of the partnership within the state; or (b) by delivering a copy of the summons and of the complaint to any agent, attorney in fact, or other person authorized by appointment or by statute to receive or accept service on behalf of the partnership, provided that any further notice required by the statute shall also be given.
(11) Upon the State of Maine by delivering a copy of the summons and of the complaint to the Attorney General of the State of Maine or one of the Attorney General’s deputies, either (a) personally or (b) by registered or certified mail, return receipt requested; and in any action attacking the validity of an order of an officer or agency of the State of Maine not made a party, by also sending a copy of the summons and of the complaint by ordinary mail to such officer or agency. The provisions of Rule 4 (f) relating to completion of service by mail shall here apply as appropriate.
(12) Upon an officer or agency of the State of Maine by the method prescribed by either paragraph (1) or (7) of this subdivision as appropriate, and by also sending a copy of the summons and of the complaint by ordinary mail to the Attorney General of the State of Maine.
(13) Upon all trustees of an express trust, whether within or without the state, in any action on a claim for relief against the trust, except an action by a beneficiary in that capacity, (a) by delivering a copy of the summons and of the complaint to any trustee, or by leaving such copies at an office or place of business of the trust within the state; or (b) by delivering a copy of the summons and of the complaint to any agent or attorney in fact authorized by appointment or by statute to receive or accept service on behalf of the trust, provided that any further notice required by the statute shall also be given.
(14) Upon another state of the United States, by the method prescribed by the law of that state for service of process upon it.
(e) Personal Service Outside State. A person who is subject to the jurisdiction of the courts of the state may be served with the summons and complaint outside the state, in the same manner as if such service were made within the state, by any person authorized to serve civil process by the laws of the place of service or by a person specially appointed to serve it. An affidavit of the person making service shall be filed with the court stating the time, manner, and place of service. Such service has the same force and effect as personal service within the state.
(f) Service Outside State by Mail in Certain Actions. Where service cannot, with due diligence, be made personally within the state, service of the summons and complaint may be made upon a person who is subject to the jurisdiction of the courts of the state by delivery to that person outside the state by registered or certified mail, with restricted delivery and return receipt requested, in the following cases:
(1) Where the pleading demands a judgment that the person to be served be excluded from a vested or contingent interest in or lien upon specific real or personal property within the state; or that such an interest or lien in favor of either party be enforced, regulated, defined or limited; or otherwise affecting the title to any property; or
(2) Where the pleading demands a judgment for divorce or declaring a marriage a nullity. Service by registered or certified mail shall be complete when the registered or certified mail is delivered and the return receipt signed or when acceptance is refused, provided that the plaintiff shall file with the court either the return receipt or, if acceptance was refused, an affidavit that upon notice of such refusal a copy of the summons and complaint was sent to the defendant by ordinary mail.
(g) Service by Publication.
(1) When Service May Be Made. The court, on motion upon a showing that service cannot with due diligence be made by another prescribed method, shall order service by publication in an action described in subdivision (f) of this rule, unless a statute provides another method of notice, or when the person to be served is one described in subdivision (e) of this rule.
(2) Contents of Order. An order for service by publication shall include (i) a brief statement of the object of the action; (ii) if the action may affect any property or credits of the defendant described in subdivision (f) of this rule, a description of any such property or credits; and (iii) the substance of the summons prescribed by subdivision (a) of this rule. The order shall also direct its publication once a week for 3 successive weeks in a designated newspaper of general circulation in the county where the action is pending; and the order shall also direct the mailing to the defendant, if the defendant’s address is known, of a copy of the order as published.
(3) Time of Publication; When Service Complete. The first publication of the summons shall be made within 20 days after the order is granted. Service by publication is complete on the twenty-first day after the first publication. The plaintiff shall file with the court an affidavit that publication has been made.
(h) Return of Service. The person serving the process shall make proof of service thereof on the original process or a paper attached thereto for that purpose. and shall forthwith return it to the plaintiffs attorney. The plaintiffs attorney shall, within the time during which the person served must respond to the process, file the proof of service with the court. If service is made under paragraph (c)(1) of this rule, return shall be made by the plaintiff’s attorney filing with the court the acknowledgment received pursuant to that paragraph. The attorney’s filing of such proof of service with the court shall constitute a representation by the attorney, subject to the obligations of Rule 11, that the copy of the complaint mailed to the person served or delivered to the officer for service was a true copy. If service is made by a person other than a sheriff or the sheriff’s deputy or another person authorized by law, that person shall make proof thereof by affidavit. The officer or other person serving the process shall endorse the date of service upon the copy left with the defendant or other person. Failure to endorse the date of service shall not affect the validity of service.
(i) Amendment. 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.
(j) Alternative Provisions for Service in a Foreign Country.
(1) Manner. When service is to be effected upon a party in a foreign country, it is also sufficient if service of the summons and complaint is made: (A) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or (B) as directed by the foreign authority in response to a letter rogatory, when service in either case is reasonably calculated to give actual notice; or (C) upon an individual, by delivery to the individual personally, and upon a corporation or partnership or association, by delivery to an officer, a managing or general agent; or (D) by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or (E) as directed by order of the court. Service under (C) or (E) above may be made by any person who is not a party and is not less than 18 years of age or who is designated by order of the court or by the foreign court. On request, the clerk shall deliver the summons to the plaintiff for transmission to the person or the foreign court or officer who will make the service.
(2) Return. Proof of service may be made as prescribed by subdivision (h) of this rule, or by the law of the foreign country, or by order of the court. When service is made pursuant to subparagraph (1)(D) of this subdivision, proof of service shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court.
[Amended effective February 15, 1990; February 15, 1991; February 15, 1992; February 15, 1993; May 1, 2000.]

RULE 45. Subpoena
(a) Form; Issuance.
(1) Every subpoena shall
(A) state the name of the court from which it is issued; and
(B) state the title of the action, the name of the court in which it is pending, and its civil action number; and
(C) command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things, or permit inspection of premises, in the possession, custody or control of that person at a time and place therein specified; and
(D) set forth the text of subdivisions (c) and (d) of this rule. A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately.
(2) A subpoena for the Superior Court may issue from the court in any county, and for the District Court from the court in any district.
(3) The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney admitted to the Maine Bar may also issue and sign a subpoena as officer of the court.
(b) Service.
(1) A subpoena may be served by any person who is not a party and is not less than 18 years of age, including the attorney of a party. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and, if the person’s attendance is commanded, by tendering to that person the fees for one day’s attendance and the mileage allowed by law. Prior notice of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(b).
(2) A subpoena may be served at any place within the state.
(c) Protection of Persons Subject to Subpoenas.
(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court for which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings, a reasonable attorney’s fee, and other reasonable expenses incurred in seeking the sanction.
(2)(A) A person commanded to produce and permit inspection and copying of designated books, papers, documents, or tangible things, or inspection of premises, need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing, or trial.
(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena a written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of any justice or judge of the court for which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.
(3)(A) On timely motion, the court for which a subpoena was issued shall quash or modify the subpoena if it
(i) fails to allow a reasonable time for compliance;
(ii) requires a resident of this state who is not a party or an officer of a party to travel to attend a deposition outside the county wherein that person resides or is employed or transacts business in person or a distance of more than 100 miles one way, whichever is greater, unless the court otherwise orders; requires a nonresident of the state who is not a party or an officer of a party to attend outside the county wherein that person is served with a subpoena, or farther than 100 miles from the place of service, unless some other convenient place is axed by an order of court;
(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) If a subpoena
(i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or
(ii) requires disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study made not at the request of any party, or
(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles one way to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot otherwise be met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.
(d) Duties in Responding to a Subpoena.
(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.
(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.
(e) Motions. Motions concerning subpoenas issued in discovery or pretrial proceedings shall be made under Rule 26(g). Motions concerning subpoenas issued to command appearance or production of documents or tangible things at trial or hearing shall be directed first to the judge or justice presiding at such trial or hearing.
(f) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court in which the action is pending or in the county in which the deposition is taken. An adequate cause for failure to obey exists when a subpoena purports to require a nonparty to attend or produce at a place not within the limits provided by clause (ii) of subparagraph (c)(3)(A). Punishment for contempt under this subdivision (f) shall be in accordance with Rule 66 and 16 M.R.S.A. Â§ 102.
[Amended effective February 15, 1993; February 15, 1996; March 1, 1998; May 1, 1999.]
MAINE REVISED STATUTES
14 M.R.S.A. Â§ 701. Rules for service Service of process shall be as prescribed by rule of court.
R.S. 1954, c. 106, Â§ 17; 1959, c. 317, Â§ 77.
Â§ 704-A. Persons subject to jurisdiction
1. Declaration of purpose. It is declared, as a matter of legislative determination, that the public interest demands that the State provide its citizens with an effective means of redress against nonresident persons who, through certain significant minimal contacts with this State, incur obligations to citizens entitled to the state’s protection. This legislative action is deemed necessary because of technological progress which has substantially increased the flow of commerce between the several states resulting in increased interaction between persons of this State and persons of other states. This section, to insure maximum protection to citizens of this State, shall be applied so as to assert jurisdiction over nonresident defendants to the fullest extent permitted by the due process clause of the United States Constitution, 14th amendment.
2. Causes of action. Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated in this section, thereby submits such person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
A. The transaction of any business within this State;
B. Doing or causing a tortious act to be done, or causing the consequences of a tortious act to occur within this State;
C. The ownership, use or possession of any real estate situated in this State;
D. Contracting to insure any person, property or risk located within this State at the time of contracting;
E. Conception resulting in paternity within the meaning of Title 19-A, chapter 53, subchapter I;[fn1]
F. Contracting to supply services or things within this State;
G. Maintaining a domicile in this State while subject to a marital or family relationship out of which arises a claim for divorce, alimony, separate maintenance, property settlement, child support or child custody; or the commission in this State of any act giving rise to such a claim; or
H. Acting as a director, manager, trustee or other officer of a corporation incorporated under the laws of, or having its principal place of business within, this State.
I. Maintain any other relation to the State or to persons or property which affords a basis for the exercise of jurisdiction by the courts of this State consistent with the Constitution of the United States.
3. Personal service. Service of process upon any person who is subject to the jurisdiction of the courts of this State, as provided in this section, may be made by personally serving the summons upon the defendant outside this State, with the same force and effect as though summons had been personally served within this State.
4. Jurisdiction based upon this section. Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him is based upon this section.
5. Other service not affected. Nothing contained in this section limits or affects the right to serve any process in any other manner now or hereafter provided by law.
[fn1] 19-A M.R.S.A. Â§ 1551 et seq.
(1975, c. 770, Â§ 80, eff. April 16, 1976; 1977, c. 696, Â§Â§ 162, 163, eff. March 31, 1978; 1995, c. 694, Â§ D-14, eff. Oct. 1, 1997.)
Â§ 705. Civil process served on Sunday void; officer liable A person may not serve or execute any civil process on Sunday, but such a service is void and the person executing it is liable in damages to the party aggrieved as if the person had no process. This section does not apply to service or execution of a protection from harassment order issued under Title 5, chapter 337-A or a protection from abuse order issued under Title 19- A, chapter 101.

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New Hampshire Foreclosure Process Server Laws

By admin | April 9, 2010

Chapter 104 – Sheriffs and constables

104:4 Special Deputy.

A sheriff may appoint a special deputy for the service and return of any process, by warrant indorsed thereon, in the manner heretofore practiced.

Source. RS 178:6, 8. CS 189:6, 8. GS 197:2. GL 216:2. PS 212:2. PL 324:2. RL 380:2.

104:5 Duties.

I. The sheriff and the sheriff’s deputies shall serve and execute all writs and other precepts directed to the sheriff’s department and issued from lawful authority.

II. The sheriff and the sheriff’s deputies and bailiffs shall perform the duties of crier of the court.

III. The sheriff’s bailiffs shall provide adequate security in all state courts, except the supreme court.

IV. The sheriff’s bailiffs shall comply with such background investigation checks, physical and mental standards, and training appropriate to their duties as the police standards and training council may require. The council shall consult with the New Hampshire Sheriffs Association and the administrative office of the courts prior to adopting these standards.

Source. RS 178:9. CS 189:9. GS 197:3. GL 216:3. PS 212:3. PL 324:3. RL 380:3. RSA 104:5. 1998, 297:3, eff. Jan. 1, 1999.

104:6 Powers.

Sheriffs and their deputies shall have throughout the state the same power and authority to serve criminal or civil processes, investigate crimes and to pursue and apprehend criminals that they have in their respective counties.

Source. 1911, 147:1. PL 324:4. RL 380:4.

104:7 Interest in Suit.

When the sheriff is a party or related to either party, or interested in the suit, bill in equity, or other process, the writ or other process in such action may be served by the sheriff or deputy sheriff of any other county or by his own deputy; and the sheriff may serve writs or other process upon his own deputies, and the official bond of the sheriff’s deputies shall protect him, the same as in other cases where he is not a party, and the bond of the sheriff shall protect his deputies on whom he may serve process. But nothing in this section shall prevent a sheriff or his deputy from serving process or levying execution himself in any case in which he is plaintiff by virtue of a receiptor given to him.

Source. RS 179:3. CS 190:3. GS 197:4. GL 216:4. PS 212:4. 1905, 52:2. 1917, 51:1. PL 324:5. 1937, 19:1. RL 380:5.

104:8 Limitation.

No sheriff, deputy sheriff or constable is disqualified to serve a writ or other precept in which a town or other corporation is a party by reason of his being a citizen of the town or a member of the corporation.

Source. 1844, 140. CS 189:32. GS 197:6. GL 216:6. PS 212:6. 1903, 134:15. 1905, 52:2. PL 324:6. RL 380:6.

104:9 Constables.

Constables shall serve and return writs and other civil precepts to them directed wherein the amount demanded in damages does not exceed $75, and no others, and shall have similar powers and be subject to similar liabilities in relation thereto as sheriffs.

Source. RS 179:5. CS 190:5. GS 197:5. 1875, 9:1. GL 216:5. PS 212:5. 1917, 136:1. PL 324:7. RL 380:7.

104:10 Neglect of Duty.

If any such officer refuses or neglects to serve a legal precept to him directed and delivered for service, his fees therefor being first tendered, or without such tender in criminal cases when the precept is indorsed by the attorney general or solicitor, or by the clerk by order of court, he shall forfeit $50 to any person aggrieved thereby who shall sue therefor within 3 months.

Source. RS 178:10. CS 189:10. GS 197:7. GL 216:7. PS 212:7. PL 324:8. RL 380:8.

104:11 Liability for Fees.

No attorney shall be personally liable to any sheriff, or other officer authorized to serve process, for his fees or expenses incurred in the service of any writ or other process placed in his hands for service, except upon an express contract to pay the fees and expenses thereon. But said officer shall have a right of action against the person suing out such process.

Source. 1899, 20:1. PL 324:9. RL 380:9.

104:12 Requiring Aid.

An officer having authority to serve process or make an arrest may require suitable aid in the execution of his office. Any person who neglects or refuses to give such aid when so required shall be fined not more than $20.

Source. RS 178:12. CS 189:12. GS 197:8. GL 216:8. PS 212:8. PL 324:10. RL 380:10.

Chapter 510 – Service of writs

510:1 Time; Where Returnable.

All original writs and writs of mesne process shall be served 14 days before the return day to which they are returnable, and shall be returnable to the superior court for Rockingham County at Exeter; Strafford County at Dover; Belknap County at Laconia; Carroll County at Ossipee; Merrimack County at Concord; Hillsborough County at either Manchester or Nashua, as is appropriate; Cheshire County at Keene; Sullivan County at Newport; Grafton County at Woodsville in the town of Haverhill; and Coos County at Lancaster.

Source. RS 183:1. CS 194:1. GS 204:1. GL 223:1. 1881, 70:1. 1883, 22:1. PS 219:1. PL 331:1. RL 387:1. 1947, 121:2. RSA 510:1. 1955, 63:1. 1969, 174:2. 1983, 382:20, eff. Jan. 1, 1986.

510:2 Manner.

All writs and other processes shall be served by giving to the defendant or leaving at his abode an attested copy thereof, except in cases otherwise provided for.

Source. RS 183:2. CS 194:2. GS 204:2. GL 223:2. 1883, 22: 1. PS 219:2. 1893, 67:6. PL 331:2. RL 387:2. RSA 510:2. 1971, 179:10, eff. Aug. 10, 1971.

510:2-a Contents of Writs and Processes.

All writs and other processes shall at the time that they are served upon the defendant indicate on such writ or process the time, place and mode of service made upon the defendant, and shall further indicate any attachments made upon the property of the defendant and the time, place and method of such attachments. Such information shall be placed upon the writ by the sheriff, deputy sheriff, or other person authorized by law who has made such service.

Source. 1973, 260:1, eff. Aug. 21, 1973.

510:4 Nonresident Defendant.

I. JURISDICTION. Any person who is not an inhabitant of this state and who, in person or through an agent, transacts any business within this state, commits a tortious act within this state, or has the ownership, use, or possession of any real or personal property situated in this state submits himself, or his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from or growing out of the acts enumerated above.

II. SERVICE OF PROCESS ON SECRETARY OF STATE. Service of process upon any person who is subject to the jurisdiction of this state, as provided in this section, may be made by leaving a copy thereof, with a fee of $10, in the hands or office of the secretary of state. Such service shall be of the same legal force and effect as if served on the defendant at his abode or place of business in the state or country where he resides and according to the law of that state or country, provided that notice thereof and a copy of the process is forthwith sent by registered mail, postage prepaid, by the plaintiff or his attorney to the defendant at his last known abode or place of business in the state or country in which the defendant resides. The defendant’s return receipt and an affidavit of the plaintiff or his attorney of compliance with the section shall be appended to the process and entered therewith. In the event that the notice and a copy of the process are not delivered to or accepted by the defendant, the court may order such additional notice, if any, as justice may require.

III. RECORD OF PROCESS. The secretary of state shall keep a record of all process served in accordance with this section, and said record shall show the date and hour of service in the hands or office of the secretary of state.

IV. CONTINUANCE OF ACTION; COSTS. The court in which the action is pending may order such continuances as may be necessary to afford the defendant reasonable opportunity to defend the action. The fee of $3 paid to the secretary of state by the plaintiff at the time of the service shall be taxed in his costs if he prevails in his suit.

V. SERVICE NOT EXCLUSIVE. The method of service provided by this section is not exclusive and service on nonresident individuals may be made in any other manner provided by law.

Source. RS 183:5. CS 194:5. GS 204:5. GL 223:5. PS 219:5. PL 331:4. RL 387:4. RSA 510:4. 1969, 305:1. 1989, 408:78, eff. Aug. 4, 1989.

510:6 – Scire Facias.

A writ of scire facias may be served, in case the defendant is not an inhabitant of the state, on the attorney who appeared for him in the original action or as otherwise provided in RSA 510:4.

Source. RS 183:7. CS 194:9. GS 204:7. GL 223:7. PS 219:7. PL 331:6. RL 387:6.

510:8 Other Notice.

When the defendant is not an inhabitant of the state, and no mode of serving the writ is prescribed, or service thereof cannot be made in the mode prescribed, the action may be entered in court and such notice ordered as the case requires, and notice of the pendency of the suit, given according to the order, shall be sufficient service.

Source. CS 194:7. 1852, 1297. GS 204:9. GL 223:9. PS 219:9. PL 331:8. RL 387:8.

510:9 Publication.

Source. 1911, 4:1. PL 331:9. RL 387:9.

510:10 Defendant County, etc.

Where notice by publication in a newspaper is ordered by any court upon any petition, writ or other similar process, the original of which is upon file in such court, it shall be sufficient to publish a citation containing the title of the case, the name of the court in which it is pending, the time and place of the return and hearing, the fact that such original is on file and may be examined by interested parties and such other facts as the court may orderService of writs against counties may be made upon one of the county commissioners and the treasurer for the county; against cities, upon the mayor or one of the aldermen and the city clerk; against towns, upon one of the selectmen and the town clerk; against school districts, upon one of the members of the school board and the clerk of the district; and against village districts, upon one of the commissioners and the clerk of the district.

Source. RS 183:8, 9, 10. CS 194:10, 11, 12. GS 204:10. GL 223:10. PS 219:10. PL 331:10. RL 387:10. RSA 510:10. 1983, 383:71, eff. July 1, 1984.

510:11 Service on Inhabitant, When.

If any of the offices specified in RSA 510:10 is vacant, the service otherwise to be made upon the incumbent of such office may be made instead upon one of the principal inhabitants of the county, city, town or district.

Source. RS 183:8. CS 194:10. GS 204:11. GL 223:11. PS 219: 11. PL 331:11. RL 387:11.

510:12 On Town Clerk.

Whenever service of process or attachment is required to be made by leaving a copy at the abode of a town or city clerk, it shall be deemed sufficient service if the copy is left at his office, in case he has an office separate from his dwelling house.

Source. 1889, 73:1. PS 219:12. PL 331:12. RL 387:12.

510:13 Associations.

Service of writs or other process against unincorporated associations, joint stock companies, limited liability companies, syndicates, orders or any mutual association of persons, other than a partnership having not more than 4 members, within this state may, except when otherwise provided, be made upon any officer thereof, or, if it has no officer, then upon any 2 members thereof.

Source. RS 183:9. CS 194:11. GS 204:12. GL 223:12. PS 219:13. 1917, 138:1. PL 331:14. RL 387:14. RSA 510:13. 1993, 313:13, eff. July 1, 1993.

510:14 Corporations.

Service of writs against other corporations may be made upon the clerk, treasurer, cashier, or one of the directors, trustees or managers, if any, in the state, and otherwise upon any principal member or stockholder, or upon any agent, overseer or other person having the care of any of the property or charge of any of the business of the corporation.

Source. RS 183:9. CS 194:11. GS 204:12. GL 223:12. PS 219: 13. 1917, 138:1. PL 331:13. RL 387:13.

510:15 – Railroads.

Service of writs against a railroad corporation may be made upon any person doing the business of the corporation as ticket master for the sale of passenger tickets at any station upon its railroad.

Source. GS 204:13. GL 223:13. PS 219:14. PL 331:15. RL 387: 15.

510:16 – Manufacturing Corporations.

Service of a writ against a manufacturing corporation may be made by leaving an attested copy of the writ at the office or counting room of the corporation.

Source. 1873, 17:1. GL 223:14. PS 219:15. PL 331:16. RL 387:16.

510:17 Trustee Process Return.

In the return of service of trustee process against a corporation, the officer shall set forth the hour when the copy was given or left.

Source. GS 204:15. GL 223:15. PS 219:16. PL 331:17. RL 387:17.

Chapter 104 – Sheriffs and constables104:4 Special Deputy.A sheriff may appoint a special deputy for the service and return of any process, by warrant indorsed thereon, in the manner heretofore practiced.Source. RS 178:6, 8. CS 189:6, 8. GS 197:2. GL 216:2. PS 212:2. PL 324:2. RL 380:2.104:5 Duties.I. The sheriff and the sheriff’s deputies shall serve and execute all writs and other precepts directed to the sheriff’s department and issued from lawful authority.II. The sheriff and the sheriff’s deputies and bailiffs shall perform the duties of crier of the court.III. The sheriff’s bailiffs shall provide adequate security in all state courts, except the supreme court.IV. The sheriff’s bailiffs shall comply with such background investigation checks, physical and mental standards, and training appropriate to their duties as the police standards and training council may require. The council shall consult with the New Hampshire Sheriffs Association and the administrative office of the courts prior to adopting these standards.Source. RS 178:9. CS 189:9. GS 197:3. GL 216:3. PS 212:3. PL 324:3. RL 380:3. RSA 104:5. 1998, 297:3, eff. Jan. 1, 1999.104:6 Powers.Sheriffs and their deputies shall have throughout the state the same power and authority to serve criminal or civil processes, investigate crimes and to pursue and apprehend criminals that they have in their respective counties.Source. 1911, 147:1. PL 324:4. RL 380:4.104:7 Interest in Suit.When the sheriff is a party or related to either party, or interested in the suit, bill in equity, or other process, the writ or other process in such action may be served by the sheriff or deputy sheriff of any other county or by his own deputy; and the sheriff may serve writs or other process upon his own deputies, and the official bond of the sheriff’s deputies shall protect him, the same as in other cases where he is not a party, and the bond of the sheriff shall protect his deputies on whom he may serve process. But nothing in this section shall prevent a sheriff or his deputy from serving process or levying execution himself in any case in which he is plaintiff by virtue of a receiptor given to him.Source. RS 179:3. CS 190:3. GS 197:4. GL 216:4. PS 212:4. 1905, 52:2. 1917, 51:1. PL 324:5. 1937, 19:1. RL 380:5.104:8 Limitation.No sheriff, deputy sheriff or constable is disqualified to serve a writ or other precept in which a town or other corporation is a party by reason of his being a citizen of the town or a member of the corporation.Source. 1844, 140. CS 189:32. GS 197:6. GL 216:6. PS 212:6. 1903, 134:15. 1905, 52:2. PL 324:6. RL 380:6.104:9 Constables.Constables shall serve and return writs and other civil precepts to them directed wherein the amount demanded in damages does not exceed $75, and no others, and shall have similar powers and be subject to similar liabilities in relation thereto as sheriffs.Source. RS 179:5. CS 190:5. GS 197:5. 1875, 9:1. GL 216:5. PS 212:5. 1917, 136:1. PL 324:7. RL 380:7.104:10 Neglect of Duty.If any such officer refuses or neglects to serve a legal precept to him directed and delivered for service, his fees therefor being first tendered, or without such tender in criminal cases when the precept is indorsed by the attorney general or solicitor, or by the clerk by order of court, he shall forfeit $50 to any person aggrieved thereby who shall sue therefor within 3 months.Source. RS 178:10. CS 189:10. GS 197:7. GL 216:7. PS 212:7. PL 324:8. RL 380:8.104:11 Liability for Fees.No attorney shall be personally liable to any sheriff, or other officer authorized to serve process, for his fees or expenses incurred in the service of any writ or other process placed in his hands for service, except upon an express contract to pay the fees and expenses thereon. But said officer shall have a right of action against the person suing out such process.Source. 1899, 20:1. PL 324:9. RL 380:9.104:12 Requiring Aid.An officer having authority to serve process or make an arrest may require suitable aid in the execution of his office. Any person who neglects or refuses to give such aid when so required shall be fined not more than $20.Source. RS 178:12. CS 189:12. GS 197:8. GL 216:8. PS 212:8. PL 324:10. RL 380:10.Chapter 510 – Service of writs510:1 Time; Where Returnable.All original writs and writs of mesne process shall be served 14 days before the return day to which they are returnable, and shall be returnable to the superior court for Rockingham County at Exeter; Strafford County at Dover; Belknap County at Laconia; Carroll County at Ossipee; Merrimack County at Concord; Hillsborough County at either Manchester or Nashua, as is appropriate; Cheshire County at Keene; Sullivan County at Newport; Grafton County at Woodsville in the town of Haverhill; and Coos County at Lancaster.Source. RS 183:1. CS 194:1. GS 204:1. GL 223:1. 1881, 70:1. 1883, 22:1. PS 219:1. PL 331:1. RL 387:1. 1947, 121:2. RSA 510:1. 1955, 63:1. 1969, 174:2. 1983, 382:20, eff. Jan. 1, 1986.510:2 Manner.All writs and other processes shall be served by giving to the defendant or leaving at his abode an attested copy thereof, except in cases otherwise provided for.Source. RS 183:2. CS 194:2. GS 204:2. GL 223:2. 1883, 22: 1. PS 219:2. 1893, 67:6. PL 331:2. RL 387:2. RSA 510:2. 1971, 179:10, eff. Aug. 10, 1971.510:2-a Contents of Writs and Processes.All writs and other processes shall at the time that they are served upon the defendant indicate on such writ or process the time, place and mode of service made upon the defendant, and shall further indicate any attachments made upon the property of the defendant and the time, place and method of such attachments. Such information shall be placed upon the writ by the sheriff, deputy sheriff, or other person authorized by law who has made such service.Source. 1973, 260:1, eff. Aug. 21, 1973.510:4 Nonresident Defendant.I. JURISDICTION. Any person who is not an inhabitant of this state and who, in person or through an agent, transacts any business within this state, commits a tortious act within this state, or has the ownership, use, or possession of any real or personal property situated in this state submits himself, or his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from or growing out of the acts enumerated above.II. SERVICE OF PROCESS ON SECRETARY OF STATE. Service of process upon any person who is subject to the jurisdiction of this state, as provided in this section, may be made by leaving a copy thereof, with a fee of $10, in the hands or office of the secretary of state. Such service shall be of the same legal force and effect as if served on the defendant at his abode or place of business in the state or country where he resides and according to the law of that state or country, provided that notice thereof and a copy of the process is forthwith sent by registered mail, postage prepaid, by the plaintiff or his attorney to the defendant at his last known abode or place of business in the state or country in which the defendant resides. The defendant’s return receipt and an affidavit of the plaintiff or his attorney of compliance with the section shall be appended to the process and entered therewith. In the event that the notice and a copy of the process are not delivered to or accepted by the defendant, the court may order such additional notice, if any, as justice may require.III. RECORD OF PROCESS. The secretary of state shall keep a record of all process served in accordance with this section, and said record shall show the date and hour of service in the hands or office of the secretary of state.IV. CONTINUANCE OF ACTION; COSTS. The court in which the action is pending may order such continuances as may be necessary to afford the defendant reasonable opportunity to defend the action. The fee of $3 paid to the secretary of state by the plaintiff at the time of the service shall be taxed in his costs if he prevails in his suit.V. SERVICE NOT EXCLUSIVE. The method of service provided by this section is not exclusive and service on nonresident individuals may be made in any other manner provided by law.Source. RS 183:5. CS 194:5. GS 204:5. GL 223:5. PS 219:5. PL 331:4. RL 387:4. RSA 510:4. 1969, 305:1. 1989, 408:78, eff. Aug. 4, 1989.510:6 – Scire Facias.A writ of scire facias may be served, in case the defendant is not an inhabitant of the state, on the attorney who appeared for him in the original action or as otherwise provided in RSA 510:4.Source. RS 183:7. CS 194:9. GS 204:7. GL 223:7. PS 219:7. PL 331:6. RL 387:6.510:8 Other Notice.When the defendant is not an inhabitant of the state, and no mode of serving the writ is prescribed, or service thereof cannot be made in the mode prescribed, the action may be entered in court and such notice ordered as the case requires, and notice of the pendency of the suit, given according to the order, shall be sufficient service.Source. CS 194:7. 1852, 1297. GS 204:9. GL 223:9. PS 219:9. PL 331:8. RL 387:8.510:9 Publication.Where notice by publication in a newspaper is ordered by any court upon any petition, writ or other similar process, the original of which is upon file in such court, it shall be sufficient to publish a citation containing the title of the case, the name of the court in which it is pending, the time and place of the return and hearing, the fact that such original is on file and may be examined by interested parties and such other facts as the court may order.Source. 1911, 4:1. PL 331:9. RL 387:9.510:10 Defendant County, etc.Where notice by publication in a newspaper is ordered by any court upon any petition, writ or other similar process, the original of which is upon file in such court, it shall be sufficient to publish a citation containing the title of the case, the name of the court in which it is pending, the time and place of the return and hearing, the fact that such original is on file and may be examined by interested parties and such other facts as the court may orderService of writs against counties may be made upon one of the county commissioners and the treasurer for the county; against cities, upon the mayor or one of the aldermen and the city clerk; against towns, upon one of the selectmen and the town clerk; against school districts, upon one of the members of the school board and the clerk of the district; and against village districts, upon one of the commissioners and the clerk of the district.Source. RS 183:8, 9, 10. CS 194:10, 11, 12. GS 204:10. GL 223:10. PS 219:10. PL 331:10. RL 387:10. RSA 510:10. 1983, 383:71, eff. July 1, 1984.510:11 Service on Inhabitant, When.If any of the offices specified in RSA 510:10 is vacant, the service otherwise to be made upon the incumbent of such office may be made instead upon one of the principal inhabitants of the county, city, town or district.Source. RS 183:8. CS 194:10. GS 204:11. GL 223:11. PS 219: 11. PL 331:11. RL 387:11.510:12 On Town Clerk.Whenever service of process or attachment is required to be made by leaving a copy at the abode of a town or city clerk, it shall be deemed sufficient service if the copy is left at his office, in case he has an office separate from his dwelling house.Source. 1889, 73:1. PS 219:12. PL 331:12. RL 387:12.510:13 Associations.Service of writs or other process against unincorporated associations, joint stock companies, limited liability companies, syndicates, orders or any mutual association of persons, other than a partnership having not more than 4 members, within this state may, except when otherwise provided, be made upon any officer thereof, or, if it has no officer, then upon any 2 members thereof.Source. RS 183:9. CS 194:11. GS 204:12. GL 223:12. PS 219:13. 1917, 138:1. PL 331:14. RL 387:14. RSA 510:13. 1993, 313:13, eff. July 1, 1993.510:14 Corporations.Service of writs against other corporations may be made upon the clerk, treasurer, cashier, or one of the directors, trustees or managers, if any, in the state, and otherwise upon any principal member or stockholder, or upon any agent, overseer or other person having the care of any of the property or charge of any of the business of the corporation.Source. RS 183:9. CS 194:11. GS 204:12. GL 223:12. PS 219: 13. 1917, 138:1. PL 331:13. RL 387:13.510:15 – Railroads.Service of writs against a railroad corporation may be made upon any person doing the business of the corporation as ticket master for the sale of passenger tickets at any station upon its railroad.Source. GS 204:13. GL 223:13. PS 219:14. PL 331:15. RL 387: 15.510:16 – Manufacturing Corporations.Service of a writ against a manufacturing corporation may be made by leaving an attested copy of the writ at the office or counting room of the corporation.Source. 1873, 17:1. GL 223:14. PS 219:15. PL 331:16. RL 387:16.510:17 Trustee Process Return.In the return of service of trustee process against a corporation, the officer shall set forth the hour when the copy was given or left.Source. GS 204:15. GL 223:15. PS 219:16. PL 331:17. RL 387:17.

Topics: Process Service | No Comments »

North Dakota Foreclosure Process Server Laws

By admin | April 9, 2010

Rule 4. Persons Subject to Jurisdiction–Process–Service

(a) Definition of Person. As used in this rule, “person”, whether or not a citizen or domiciliary of this state and whether or not organized under the laws of this state, includes: an individual, executor, administrator or other personal representative; any other fiduciary; any two or more persons having a joint or common interest; a partnership; an association; a corporation; and any other legal or commercial entity.

(b) Jurisdiction Over Person.

(1) Personal Jurisdiction Based Upon Presence or Enduring Relationship. A court of this state may exercise personal jurisdiction over a person found within, domiciled in, organized under the laws of, or maintaining his or its principal place of business in, this state as to any claim for relief.

(2) Personal Jurisdiction Based Upon Contacts. A court of this state may exercise personal jurisdiction over a person who acts directly or by an agent as to any claim for relief arising from the person’s having such contact with this state that the exercise of personal jurisdiction over the person does not offend against traditional notions of justice or fair play or the due process of law, under one or more of the following circumstances:

(A) transacting any business in this state;

(B) contracting to supply or supplying service, goods, or other things in this state;

(D) committing a tort within this state, causing injury to another person or property within or without this state;

(E) owning, having any interest in, using, or possessing property in this state;

(F) contracting to insure another person, property, or other risk within this state;

(G) acting as a director, manager, trustee, or officer of a corporation organized under the laws of, or having its principal place of business within, this state;

(H) enjoying any other legal status or capacity within this state; or

(I) engaging in any other activity, including cohabitation or sexual intercourse, within this state.

(3) Limitation on Jurisdiction Based Upon Contacts. If jurisdiction over a person is based solely upon paragraph (2) of this subdivision, only a claim for relief arising from bases enumerated therein may be asserted against that person.

(4) Acquisition of Jurisdiction. A court of this state may acquire personal jurisdiction over any person through service of process as provided in this rule or by statute, or by voluntary general appearance in an action by any person either personally or through an attorney or any other authorized person.

(5) Inconvenient Forum. If the court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss the action in whole or in part on any condition that may be just.

(1) Summons Contents. The summons must specify the venue of the court in which the action is brought, contain the title of the action specifying the names of the parties, and be directed to the defendant. It must state the time within which these rules require the defendant to appear and defend, and must notify the defendant that in case of the defendant’s failure to do so, judgment by default will be rendered against the defendant for the relief demanded in the complaint. It must be dated and subscribed by the plaintiff or the plaintiff’s attorney and include the post office address of the plaintiff or plaintiff’s attorney. (See Rule 4(e)(8) for additional information required if the action involves real estate and service is by publication.)

(2) Summons Served With or Without Complaint. A copy of the complaint need not be served with the summons in which case the summons must state that the complaint is or will be filed with the clerk of the court in which the action is commenced, and if the defendant within 20 days after service of the summons causes notice of appearance to be given and in person or by an attorney demands in writing a copy of the complaint, specifying a place within the state where it may be served, a copy thereof within 20 days thereafter must be served accordingly. If, in that case, the complaint is not filed with the clerk within 20 days after service of the summons, the action is deemed discontinued.

(3) Summons Served and Complaint Not Filed. The defendant may serve a written demand on the plaintiff to file the complaint. Service of the demand must be made under subdivision (d) on the plaintiff’s attorney or on the plaintiff if the plaintiff is not represented by an attorney. If the plaintiff does not file the complaint within 20 days after service of the demand, service of the summons is void. The demand must contain notice that if the complaint is not filed within 20 days, service of the summons is void under this rule.

(4) The defendant may file the summons and complaint, and the costs incurred on behalf of the plaintiff may be taxed as provided in Rule 54(e).

(d) Personal Service.

(1) By Whom Process Served. Service of all process may be made: within the state by any person of legal age not a party to nor interested in the action; and outside the state by any person who may make service under the law of this state or under the law of the place in which service is made or who is designated by a court of this state.

(2) How Service Made Within the State. Personal service of process within the state must be made as follows:

(A) upon an individual 14 or more years of age by (i) delivering a copy of the summons to the individual personally; (ii) leaving a copy of the summons at the individual’s dwelling house or usual place of abode in the presence of a person of suitable age and discretion then residing therein; (iii) delivering, at the office of the process server, a copy of the summons to the individual’s spouse if the spouses reside together; (iv) delivering a copy of the summons to the individual’s agent authorized by appointment or by law to receive service of process; or (v) any form of mail or third-party commercial delivery addressed to the individual to be served and requiring a signed receipt and resulting in delivery to that individual;

(B) upon an individual under the age of 14 years, by delivering a copy of the summons to the individual’s guardian, if the individual has one within the state, and, if not, then to the individual’s father or mother or any person or agency having the individual’s care or control, or with whom the individual resides. If service cannot be made upon any of them, then as directed by order of the court;

(C) upon an individual who has been judicially adjudged incompetent or for whom a guardian of the individual’s person or estate has been appointed in this state, by delivering a copy of the summons to the individual’s guardian. If a general guardian and a guardian ad litem have been appointed, both must be served;

(D) upon a domestic or foreign corporation or upon a partnership or other unincorporated association, by (i) delivering a copy of the summons to an officer, director, superintendent or managing or general agent, or partner, or associate, or to an agent authorized by appointment or by law to receive service of process in its behalf, or to one who acted as an agent for the defendant with respect to the matter upon which the claim of the plaintiff is based and who was an agent of the defendant at the time of service; (ii) if the sheriff’s return indicates no person upon whom service may be made can be found in the county, then service may be made by leaving a copy of the summons at any office of the domestic or foreign corporation, partnership or unincorporated association within this state with the person in charge of the office; or (iii) any form of mail or third-party commercial delivery addressed to any of the foregoing persons and requiring a signed receipt and resulting in delivery to that person;

(E) upon a city, township, school district, park district, county, or any other municipal or public corporation, by delivering a copy of the summons to any member of its governing board.

(F) upon the state, by delivering a copy of the summons to the governor or attorney general or an assistant attorney general and, upon an agency of the state, such as the Bank of North Dakota or the State Mill and Elevator Association, by delivering a copy of the summons to the managing head of the agency or to the attorney general or an assistant attorney general; or

(G) if service is made upon an agent who is not expressly authorized by appointment or by law to receive service of process on behalf of the defendant, a copy of the summons and complaint must be mailed or delivered via a third-party commercial carrier to the defendant with return receipt requested not later than ten days after service by depositing the same, with postage or shipping prepaid, in a post office or with a commercial carrier in this state and directed to the defendant to be served at the defendant’s last reasonably ascertainable address.

(3) How Service Made Outside the State. Service upon any person subject to the personal jurisdiction of the courts of this state may be made outside the state:

(A) in the manner provided for service within this state, with the same force and effect as though service had been made within this state;

(B) in the manner prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction; or

(4) Service Under Statute. Whenever a statute of this state or an order of the court provides for service of a summons or of a notice or of an order in lieu of summons upon a party not an inhabitant of or found within the state, service must be made under the circumstances and in the manner prescribed by the statute or order or in any manner permitted by these rules and not precluded by the statute or order.

(e) Service by Publication.

(1) When Service by Publication Permitted. A defendant, whether known or unknown, who has not been served personally under the foregoing subdivisions of this rule may be served by publication in the manner hereinafter provided in one or more of the following situations only if:

(A) The claim for relief is based upon one or more grounds for the exercise of personal jurisdiction under paragraph (2) of subdivision (b) of this rule;

(B) The subject of the action is real or personal property in this state and the defendant has or claims a lien thereon or other interest therein, whether vested or contingent, or the relief demanded against the defendant consists wholly or partly in excluding the defendant from that lien or interest or in defining, regulating, or limiting that lien or interest, or the action otherwise affects the title to the property.

(C) The action is to foreclose a mortgage, cancel a contract for sale, or to enforce a lien upon or a security interest in real or personal property in this state;

(D) The plaintiff has acquired a lien upon property or credits of the defendant within this state by attachment, garnishment, or other judicial processes and the property or credit is the subject matter of the litigation or the underlying claim for relief relates to the property or credits;

(E) The action is for divorce, separation from bed and board, or annulment of a marriage of a resident of this state or to determine custody of an individual subject to the court’s jurisdiction; or

(F) The action is to award, partition, condemn, or escheat real or personal property in this state.

(2) Filing of Complaint and Affidavit for Service by Publication. Before service of the summons by publication is authorized in any case, there must be filed with the clerk of the court in which the action is commenced a complaint setting forth a claim in favor of the plaintiff and against the defendant based on one or more of the situations specified in paragraph (1) of this subdivision and an affidavit executed by the plaintiff or the plaintiff’s attorney stating, as may be applicable, one or more of the following:

(A) That after diligent inquiry personal service of the summons cannot be made upon the defendant in this state to the best knowledge, information, and belief of the affiant;

(B) That after diligent inquiry personal service of the summons cannot be made upon the defendant in this state to the best knowledge, information, and belief of the affiant;

(C) That the defendant is a domestic or foreign corporation and has no officer, director, superintendent, managing agent, business agent, or other agent authorized by appointment or by law upon whom service of process can be made in its behalf in this state; or

(D) That all persons having or claiming an estate or interest in, or lien or encumbrance upon, the real property described in the complaint, whether as heirs, devisees, legatees, or personal representative of a deceased person, or under any other title or interest, and not in possession, nor appearing of record in the office of the register of deeds, the clerk of the district court, or the county auditor of the county in which the real property is situated, to have such claim, title or interest therein, are proceeded against as unknown persons defendant pursuant to Chapter 32 17 or 32 19 of the North Dakota Century Code, and stating facts necessary to satisfy the requirements of those chapters.

(3) Number of Publications. Service of the summons by publication may be made by publishing the same 3 times, once in each week for 3 successive weeks, in a newspaper published in the county in which the action is pending, and if no newspaper is published in that county then in a newspaper having a general circulation therein although published in another county.

(4) Mailing or Delivering Summons and Complaint. A copy of the summons and complaint, at any time after the filing of the affidavit for publication and not later than 10 days after the first publication of the summons, must be deposited in a post office or with a third-party commercial carrier in this state, postage or shipping prepaid, and directed to the defendant to be served at the defendant’s last reasonably ascertainable address.

(5) Personal Service Outside State Equivalent to Publication. After the affidavit for publication and the complaint in the action are filed, personal service of the summons and complaint upon the defendant out of state is equivalent to and has the same force and effect as the publication and mailing or delivery provided for in paragraphs (3) and (4) of this subdivision.

(6) Time When First Publication or Service Outside State Must Be Made. The first publication of the summons, or personal service of the summons and complaint upon the defendant out of the state, must be made within 60 days after the filing of the affidavit for publication. If not so made, the action is deemed discontinued as to any defendant not served within that time.

(7) When Defendant Served by Publication Permitted to Defend. The defendant upon whom service by publication is made, or the defendant’s representative, on application and sufficient cause shown at any time before judgment, must be allowed to defend the action. Except in an action for divorce, the defendant upon whom service by publication is made, or the defendant’s representative, upon making it appear to the satisfaction of the court by affidavit, stating the facts, that the defendant has a good and meritorious defense to the action, and the defendant had no actual notice or knowledge of the pendency of the action so as to enable the defendant to make application to defend before the entry of judgment, and upon filing an affidavit of merits, may be allowed to defend at any time within 3 years after entry of judgment on such terms as may be just. If the defense is successful and the judgment, or any part of the judgment, has been collected or otherwise enforced, restitution may be ordered by the court, but the title to property sold under the judgment to a purchaser in good faith may not be affected. A defendant who receives a copy of the summons in the action mailed or delivered to the defendant as provided in paragraph (4), or upon whom the summons is personally served out of this state, as provided in paragraph (5), is deemed to have had notice of the pendency of the action and of the judgment.

(8) Additional Information to be Published. In all cases where publication of summons is made in an action in which the title to, or an interest in or lien upon, real property is involved or affected or brought into question, the publication must also contain a description of the real property and a statement of the object of the action.

(f) Service Upon a Person in a Foreign Country. Unless otherwise provided by law, service upon an individual, other than an infant or an incompetent person, may be effected in a place not within any judicial district of the United States:

(1) by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or

(2) if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided the service is reasonably calculated to give notice:

(A) in the manner prescribed by law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or

(B) as directed by the foreign authority in response to a letter rogatory or letter of request; or

(i) delivery to the individual personally of a copy of the summons and the complaint; or

(ii) any form of mail or third-party commercial delivery requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or

(3) by any other means not prohibited by international agreement as may be directed by the court. Unless otherwise provided by law, service must be effected upon an infant or an incompetent person in a place not within any judicial district of the United States in the manner prescribed by paragraphs (2)(A) or (B), and (3). Unless otherwise provided by law, service must be effected upon a foreign corporation, partnership or other unincorporated association, that is subject to suit under a common name, in a place not within any judicial district of the United States in the manner prescribed for individuals in this subdivision except personal delivery as provided in paragraph (2)(C)(i).

(g) When Service by Publication or Outside State Complete. Service by publication is complete upon the expiration of fifteen days after the first publication of the summons. Personal service of the summons and complaint upon the defendant out of state is complete upon the expiration of fifteen days after the date of service.

(h) Amendment. At any time and upon such notice and terms as it deems just, the court, in its discretion, 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.

(i) Proof of Service. Proof of service of the summons and of the complaint or notice, if any, accompanying the same or of other process, must be made as follows:

(1) if served by the sheriff or other officer, by the officer’s certificate of service;

(2) if served by any other person, by the server’s affidavit of service;

(3) if served by publication, by an affidavit made as provided in Section 31 04 06 of the North Dakota Century Code and an affidavit of mailing or an affidavit of delivery via a third-party commercial carrier of a copy of the summons and complaint in accordance with subdivision (4) of subsection (e) of this rule, if the same has been deposited;

(4) in any other case of service by mail or delivery via a third-party commercial carrier resulting in delivery in accordance with paragraph (2) or (3) of subdivision (d) of this rule, by an affidavit of mailing or an affidavit of delivery of a copy of the summons and complaint or other process, with return receipt attached; or

(5) by the written admission of the defendant.

(j) Content of Proof of Service. The certificate, affidavit or admission of service mentioned in subdivision (h) of this rule must state the date, time, place and manner of service. If the process, pleading, order of court, or other paper is served personally by a person other than the sheriff or person designated by law, the affidavit of service must also state that the server is of legal age and not a party to the action nor interested in the action, and that the server knew the person served to be the person named in the papers served and the person intended to be served.

(k) Content of Affidavit of Mailing or Delivery via a Third-party Commercial Carrier. An affidavit of mailing or delivery required by this rule must state a copy of the process, pleading, order of court, or other paper to be served was deposited by the affiant, with postage or shipping prepaid, in the mail or with a third-party commercial carrier and directed to the party shown in the affidavit to be served at the party’s last reasonably ascertainable address. The affidavit must contain the date and place of deposit and indicate the affiant is of legal age. The return receipt, if any, must be attached to the affidavit.

(l) Effect of Mail or Delivery Refusal. If a summons and complaint or other process is mailed or sent with delivery restricted and requiring a receipt signed by the addressee, the addressee’s refusal to accept the mail or delivery constitutes delivery. Return of the mail or delivery bearing an official indication on the cover delivery was refused by the addressee is prima facie evidence of the refusal.

EXPLANATORY NOTE

Rule 4 was amended, effective 1971; January 1, 1976; January 1, 1977; January 1, 1979; September 1, 1983; March 1, 1986; March 1, 1990; March 1, 1996; March 1, 1998; March 1, 1999.

Rule 4 governs civil jurisdiction and service of process. In contrast, Rule 5 applies to service of papers other than process.

Rule 4 was amended, effective March 1, 1999, to allow delivery via a third-party commercial carrier as an alternative to the Postal Service. The requirement for a “third-party” is consistent with the rule’s requirement for personal service by a person not a party to nor interested in the action. The requirement for a “commercial carrier” means it must be the regular business of the carrier to make deliveries for profit. A law firm may not act as its own commercial carrier service for service of process. Finally, the phrase “commercial carrier” is not intended to include or authorize electronic delivery. Service via e-mail or facsimile transmission is not permitted by Rule 4.

Originally, Rule 4 concerned process, with no mention of jurisdiction. In 1971, what are now subdivisions (a) [Definition of Person] and (b) [Jurisdiction Over Person] were added. They were taken from the Uniform Interstate and International Procedure Act. Many changes were also made to subdivision (d) [previously (c)] concerning personal service, several of which were taken from that Act.

Subdivision (c) was amended, effective March 1, 1998, to provide a defendant with the means to compel the plaintiff to file the action.

Subdivision (d) was amended, effective March 1, 1998, to allow personal service by delivering a copy of the summons to an individual’s spouse.

A problem may arise with service by mail or delivery by third-party commercial carrier, under subdivisions (d)(2) or (d)(3)(C) when the person to be served refuses delivery. This refusal of delivery is tantamount to receipt of the mail or delivery for purposes of service. On the other hand, if the mail or delivery is unclaimed, no service is made. Subdivision (l) was added in 1983, effective September 1, 1983, to make it clear that refusal of delivery by the addressee constitutes delivery.

Statutes governing special procedures often conflict with these rules. As an example, N.D.C.C. 32-19-32 concerning the time period for mailing the summons and complaint after publication in a mortgage foreclosure conflicts with Rule 4(e)(4). In this situation, Rules 4(d)(4) and 81(a) recognize that provisions of the statute prevail.

A new subdivision (f) was added, effective March 1, 1996, to provide procedures for service upon a person in a foreign country. The new procedures follow Rule 26(f), Fed.R.Civ.P. The letter designation of each subdivision was changed accordingly.

SOURCES: Joint Procedure Committee Minutes of April 30-May 1, 1998, pages 3, 8, and 11; January 29-30, 1998, pages 17-18; September 25-26, 1997, page 2; January 30, 1997, pages 6-7, 10-12; September 26-27, 1996, pages 14-16; January 26-27, 1995, pages 7-8; April 20, 1989, page 2; December 3, 1987, pages 1-4 and 11; May 21-22, 1987, page 5; November 29, 1984, pages 3-5; September 30-October 1, 1982, pages 15-18; April 15-16, 1982, pages 2-5; December 11-12, 1980, page 2; October 30-31, 1980, page 31; January 17-18, 1980, pages 1-3; November 29-30, 1979, page 2; October 27-28, 1977, page 10; April 8-9, 1976, pages 5-9; Rule 4, FRCivP.

STATUTES AFFECTED:

SUPERSEDED: Sections 28-0502, 28-0503, 28-0504, 28-0505, 28-0601, 28-0602, 28-0603, 28-0604, 28-0605, 28-0606, 28-0607, 28-0608, 28-0609, 28-0610, 28-0616, 28-0619, 28-0620, 28-0621, 28-0622, 28-0623, 28-0624, 28-0625, 28-0626, 28-0627, 28-0628, 28-0629, 28-0632, 28-3001, NDRC 1943, and Chapters 28-06, 28-06.1, N.D.C.C.

CROSS REFERENCE: Rules 5 (Service and Filing of Pleadings and Other Papers), 45 (Subpoena), and 81 (Applicability In General), N.D.R.Civ.P.; Rule 8.4 (Summons in Action for Divorce or Separation), N.D.R.Ct..

[Effective March 1, 1999]

Rule 45. Subpoena

(a) Form; Issuance

(1) Every subpoena must

(A) state the title of the action, the name of the court in which it is filed, and its civil action number; and

(B) command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or upon order of the court for good cause shown, to permit inspection of premises, at a time and place therein specified. A copy of any court order must be attached to the subpoena. A command to produce evidence or to permit inspection may be joined with a command to appear at a trial or hearing or at a deposition, or may be issued separately.

(2) A subpoena must be issued by the clerk under the seal of the court or by an attorney for a party to the action or special proceeding. The subpoena must be issued in the name of the court for the county in which the action is filed. If issued by the clerk, it must be issued signed and sealed but otherwise blank, and the party requesting the subpoena shall complete it before service. If issued by an attorney for a party, the subpoena must be subscribed in the name of the attorney together with the attorney’s office address and must identify the party for whom the attorney appears.

(3) A subpoena may be issued by the clerk, under seal of the court, to an attorney representing a party in a civil action pending in another state upon filing proof of service of notice under subdivision (b)(2), or to a party in a civil action pending in another state upon filing a letter of request from a foreign court. The subpoena must be issued in the name of the court for the county where the subpoena will be served. The subpoena may be used and discovery obtained within this state in the same manner and subject to the same conditions and limitations as if the action were pending within this state. Any dispute regarding the subpoena, or discovery demanded, needing judicial involvement must be submitted to the court for the county where the subpoena issued.

(b) Service; Notice.

(1) Service of a subpoena upon a person named therein must be made by personal service under Rule 4(d) and, if the person’s attendance is commanded, by tendering to that person the fees for one day’s attendance and the mileage and travel expense allowed by law. The witness need not obey the subpoena if the witness fee and payment for mileage and travel expense are not tendered with the subpoena. The witness fee, mileage and travel expense are not required to be tendered, if the witness fee, mileage and travel expense are to be paid by this state or any political subdivision thereof. A subpoena may be served at any place within the state.

(2) Service of a notice to take a deposition as provided in Rules 30(b) and 31(a) is a prerequisite for the issuance of a subpoena that commands a person to attend and give testimony at a pretrial deposition. Service of a notice for production, inspection or copying, as provided in this rule, is a prerequisite for the issuance of a subpoena that commands production, inspection or copying before trial. A description of the material to be produced, inspected or copied, or a description of the premises to be inspected, must be included in the notice or attached to the notice. Notice must be served on each party in the manner set by Rule 5(b). A copy of the notice and of the proof of service are sufficient authorization for the clerk to issue a subpoena for a pretrial deposition, pretrial production, pretrial inspection or pretrial copying. The attorney’s signature on a subpoena issued by an attorney for a party constitutes certification that notice was served.

(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney’s fee.

(2) (A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things or inspection of premises need not appear in person at the place of production, inspection or copying unless commanded to appear for a deposition, hearing or trial.

(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce, permit inspection or copying before a trial or hearing may object in writing. The objection must be received by the party or attorney designated in the subpoena within 10 days after receipt of the subpoena. If the time specified in the subpoena for compliance is less than 10 days, any objection must be received at least 24 hours before the time specified for compliance. If objection is made, the party serving the subpoena is not entitled to production, inspection or copying except upon order of the court by which the subpoena was issued. If objection is made, the party serving the subpoena may, upon notice to the person commanded to produce, permit inspection or copying, move at any time for an order to compel production, inspection or copying. An order to compel production, inspection or copying must protect any person who is not a party or an officer of a party from significant expense resulting from production, inspection or copying.

(3) A resident of this state may be required by subpoena to attend a deposition only in the county where that person resides, is employed or transacts business in person, or at such other convenient place as prescribed by order of court. A nonresident of this state may be required by subpoena to attend a deposition in any county of this state. A resident or nonresident may be required to attend a hearing or trial any place within this state.

(4) On timely motion, the court by which a subpoena was issued shall quash or modify a subpoena that

(i) fails to allow reasonable time for compliance;

(ii) requires attendance beyond the requirements of paragraph (c)(3) of this rule;

(iii) subjects a person to undue burden; or

(iv) requires disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study made not at the request of any party.

(d) Duties in Responding to Subpoena.

(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.

(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim must be made expressly and must be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.

(e) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be a contempt of the court from which the subpoena issued. An adequate cause for failure to obey exists when a subpoena purports to require a non-party to attend or produce at a place not within the limits provided by paragraph (c)(3).

(f) Notice. All subpoenas commanding pretrial or prehearing production, inspection or copying must contain the following notice:

“You may object to this subpoena by sending or delivering a written objection, stating your valid reason, to {Insert the name and address of the party, or attorney representing the party seeking production, inspection or copying}. Any objection must be received within 10 days after you receive the subpoena. If the time specified in the subpoena for compliance is less than 10 days, any objection must be received at least 24 hours before the time specified for compliance.

If you make a timely objection, you do not need to comply with this subpoena unless the court orders otherwise. You will be notified if the party serving the subpoena seeks a court order compelling compliance with this subpoena. You will then have the opportunity to contest enforcement.

Failure to obey this subpoena, without making a timely objection, and stating a valid reason, may be contempt of court.”

EXPLANATORY NOTE

Rule 45 was amended, effective July 1, 1981; January 1, 1988; January 1, 1995; March 1, 1997; March 1, 1999.

Rule 45 was revised, effective January 1, 1995, in response to the 1991 federal revision. Significant changes to North Dakota’s rule include the following: (1) An action must be filed before a subpoena may issue; (2) A subpoena may compel a non-party to produce evidence independent of any deposition; (3) A subpoena may compel the inspection of premises in the possession of a non-party upon order of the court for good cause shown; and (4) Notice must be printed on a subpoena advising of the right to object when pretrial or prehearing production or inspection is commanded. The scope of discovery under Rule 26 is not intended to be altered by the revision.

Subdivision (f) was amended, effective March 1, 1999, to allow an objection to a subpoena to be sent via a commercial carrier as an alternative to mail.

SOURCES: Joint Procedure Committee Minutes of January 29-30, 1998, page 20; January 25-26, 1996, page 20; January 27-28, 1994, pages 11-16; April 29-30, 1993, pages 4-8, 18-20; January 28-29, 1993, pages 2-7; May 21-22, 1987, page 3; February 19-20, 1987, pages 3-4; October 30-31, 1980, pages 26-29; November 29-30, 1979, page 12; Rule 45, FRCivP.

STATUTES AFFECTED:

SUPERSEDED: Sections 31-0113, 31-0120, 31-0121, 31-0302, 31-0303, 31-0305, 31-0306, 31-0310, 31-0311, 31-0312, 31-0314, NDRC 1943; Section 31-05-22, N.D.C.C. CROSS REFERENCE: Rules 26 (General Provisions Governing Discovery), 30 (Depositions Upon Oral Examination), and 31 (Depositions of Witnesses Upon Written Questions), N.D.R.Civ.P.; Rule 17 (Subpoena) N.D.R.Crim.P.

Rule 4. Persons Subject to Jurisdiction–Process–Service(a) Definition of Person. As used in this rule, “person”, whether or not a citizen or domiciliary of this state and whether or not organized under the laws of this state, includes: an individual, executor, administrator or other personal representative; any other fiduciary; any two or more persons having a joint or common interest; a partnership; an association; a corporation; and any other legal or commercial entity.(b) Jurisdiction Over Person.(1) Personal Jurisdiction Based Upon Presence or Enduring Relationship. A court of this state may exercise personal jurisdiction over a person found within, domiciled in, organized under the laws of, or maintaining his or its principal place of business in, this state as to any claim for relief.(2) Personal Jurisdiction Based Upon Contacts. A court of this state may exercise personal jurisdiction over a person who acts directly or by an agent as to any claim for relief arising from the person’s having such contact with this state that the exercise of personal jurisdiction over the person does not offend against traditional notions of justice or fair play or the due process of law, under one or more of the following circumstances:(A) transacting any business in this state;(B) contracting to supply or supplying service, goods, or other things in this state;(C) committing a tort within or without this state causing injury to another person or property within this state;(D) committing a tort within this state, causing injury to another person or property within or without this state;(E) owning, having any interest in, using, or possessing property in this state;(F) contracting to insure another person, property, or other risk within this state;(G) acting as a director, manager, trustee, or officer of a corporation organized under the laws of, or having its principal place of business within, this state;(H) enjoying any other legal status or capacity within this state; or(I) engaging in any other activity, including cohabitation or sexual intercourse, within this state.(3) Limitation on Jurisdiction Based Upon Contacts. If jurisdiction over a person is based solely upon paragraph (2) of this subdivision, only a claim for relief arising from bases enumerated therein may be asserted against that person.(4) Acquisition of Jurisdiction. A court of this state may acquire personal jurisdiction over any person through service of process as provided in this rule or by statute, or by voluntary general appearance in an action by any person either personally or through an attorney or any other authorized person.(5) Inconvenient Forum. If the court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss the action in whole or in part on any condition that may be just.(c) Process.(1) Summons Contents. The summons must specify the venue of the court in which the action is brought, contain the title of the action specifying the names of the parties, and be directed to the defendant. It must state the time within which these rules require the defendant to appear and defend, and must notify the defendant that in case of the defendant’s failure to do so, judgment by default will be rendered against the defendant for the relief demanded in the complaint. It must be dated and subscribed by the plaintiff or the plaintiff’s attorney and include the post office address of the plaintiff or plaintiff’s attorney. (See Rule 4(e)(8) for additional information required if the action involves real estate and service is by publication.)(2) Summons Served With or Without Complaint. A copy of the complaint need not be served with the summons in which case the summons must state that the complaint is or will be filed with the clerk of the court in which the action is commenced, and if the defendant within 20 days after service of the summons causes notice of appearance to be given and in person or by an attorney demands in writing a copy of the complaint, specifying a place within the state where it may be served, a copy thereof within 20 days thereafter must be served accordingly. If, in that case, the complaint is not filed with the clerk within 20 days after service of the summons, the action is deemed discontinued.(3) Summons Served and Complaint Not Filed. The defendant may serve a written demand on the plaintiff to file the complaint. Service of the demand must be made under subdivision (d) on the plaintiff’s attorney or on the plaintiff if the plaintiff is not represented by an attorney. If the plaintiff does not file the complaint within 20 days after service of the demand, service of the summons is void. The demand must contain notice that if the complaint is not filed within 20 days, service of the summons is void under this rule.(4) The defendant may file the summons and complaint, and the costs incurred on behalf of the plaintiff may be taxed as provided in Rule 54(e).(d) Personal Service.(1) By Whom Process Served. Service of all process may be made: within the state by any person of legal age not a party to nor interested in the action; and outside the state by any person who may make service under the law of this state or under the law of the place in which service is made or who is designated by a court of this state.(2) How Service Made Within the State. Personal service of process within the state must be made as follows:(A) upon an individual 14 or more years of age by (i) delivering a copy of the summons to the individual personally; (ii) leaving a copy of the summons at the individual’s dwelling house or usual place of abode in the presence of a person of suitable age and discretion then residing therein; (iii) delivering, at the office of the process server, a copy of the summons to the individual’s spouse if the spouses reside together; (iv) delivering a copy of the summons to the individual’s agent authorized by appointment or by law to receive service of process; or (v) any form of mail or third-party commercial delivery addressed to the individual to be served and requiring a signed receipt and resulting in delivery to that individual;(B) upon an individual under the age of 14 years, by delivering a copy of the summons to the individual’s guardian, if the individual has one within the state, and, if not, then to the individual’s father or mother or any person or agency having the individual’s care or control, or with whom the individual resides. If service cannot be made upon any of them, then as directed by order of the court;(C) upon an individual who has been judicially adjudged incompetent or for whom a guardian of the individual’s person or estate has been appointed in this state, by delivering a copy of the summons to the individual’s guardian. If a general guardian and a guardian ad litem have been appointed, both must be served;(D) upon a domestic or foreign corporation or upon a partnership or other unincorporated association, by (i) delivering a copy of the summons to an officer, director, superintendent or managing or general agent, or partner, or associate, or to an agent authorized by appointment or by law to receive service of process in its behalf, or to one who acted as an agent for the defendant with respect to the matter upon which the claim of the plaintiff is based and who was an agent of the defendant at the time of service; (ii) if the sheriff’s return indicates no person upon whom service may be made can be found in the county, then service may be made by leaving a copy of the summons at any office of the domestic or foreign corporation, partnership or unincorporated association within this state with the person in charge of the office; or (iii) any form of mail or third-party commercial delivery addressed to any of the foregoing persons and requiring a signed receipt and resulting in delivery to that person;(E) upon a city, township, school district, park district, county, or any other municipal or public corporation, by delivering a copy of the summons to any member of its governing board.(F) upon the state, by delivering a copy of the summons to the governor or attorney general or an assistant attorney general and, upon an agency of the state, such as the Bank of North Dakota or the State Mill and Elevator Association, by delivering a copy of the summons to the managing head of the agency or to the attorney general or an assistant attorney general; or(G) if service is made upon an agent who is not expressly authorized by appointment or by law to receive service of process on behalf of the defendant, a copy of the summons and complaint must be mailed or delivered via a third-party commercial carrier to the defendant with return receipt requested not later than ten days after service by depositing the same, with postage or shipping prepaid, in a post office or with a commercial carrier in this state and directed to the defendant to be served at the defendant’s last reasonably ascertainable address.(3) How Service Made Outside the State. Service upon any person subject to the personal jurisdiction of the courts of this state may be made outside the state:(A) in the manner provided for service within this state, with the same force and effect as though service had been made within this state;(B) in the manner prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction; or(C) as directed by order of the court.(4) Service Under Statute. Whenever a statute of this state or an order of the court provides for service of a summons or of a notice or of an order in lieu of summons upon a party not an inhabitant of or found within the state, service must be made under the circumstances and in the manner prescribed by the statute or order or in any manner permitted by these rules and not precluded by the statute or order.(e) Service by Publication.(1) When Service by Publication Permitted. A defendant, whether known or unknown, who has not been served personally under the foregoing subdivisions of this rule may be served by publication in the manner hereinafter provided in one or more of the following situations only if:(A) The claim for relief is based upon one or more grounds for the exercise of personal jurisdiction under paragraph (2) of subdivision (b) of this rule;(B) The subject of the action is real or personal property in this state and the defendant has or claims a lien thereon or other interest therein, whether vested or contingent, or the relief demanded against the defendant consists wholly or partly in excluding the defendant from that lien or interest or in defining, regulating, or limiting that lien or interest, or the action otherwise affects the title to the property.(C) The action is to foreclose a mortgage, cancel a contract for sale, or to enforce a lien upon or a security interest in real or personal property in this state;(D) The plaintiff has acquired a lien upon property or credits of the defendant within this state by attachment, garnishment, or other judicial processes and the property or credit is the subject matter of the litigation or the underlying claim for relief relates to the property or credits;(E) The action is for divorce, separation from bed and board, or annulment of a marriage of a resident of this state or to determine custody of an individual subject to the court’s jurisdiction; or(F) The action is to award, partition, condemn, or escheat real or personal property in this state.(2) Filing of Complaint and Affidavit for Service by Publication. Before service of the summons by publication is authorized in any case, there must be filed with the clerk of the court in which the action is commenced a complaint setting forth a claim in favor of the plaintiff and against the defendant based on one or more of the situations specified in paragraph (1) of this subdivision and an affidavit executed by the plaintiff or the plaintiff’s attorney stating, as may be applicable, one or more of the following:(A) That after diligent inquiry personal service of the summons cannot be made upon the defendant in this state to the best knowledge, information, and belief of the affiant;(B) That after diligent inquiry personal service of the summons cannot be made upon the defendant in this state to the best knowledge, information, and belief of the affiant;(C) That the defendant is a domestic or foreign corporation and has no officer, director, superintendent, managing agent, business agent, or other agent authorized by appointment or by law upon whom service of process can be made in its behalf in this state; or(D) That all persons having or claiming an estate or interest in, or lien or encumbrance upon, the real property described in the complaint, whether as heirs, devisees, legatees, or personal representative of a deceased person, or under any other title or interest, and not in possession, nor appearing of record in the office of the register of deeds, the clerk of the district court, or the county auditor of the county in which the real property is situated, to have such claim, title or interest therein, are proceeded against as unknown persons defendant pursuant to Chapter 32 17 or 32 19 of the North Dakota Century Code, and stating facts necessary to satisfy the requirements of those chapters.(3) Number of Publications. Service of the summons by publication may be made by publishing the same 3 times, once in each week for 3 successive weeks, in a newspaper published in the county in which the action is pending, and if no newspaper is published in that county then in a newspaper having a general circulation therein although published in another county.(4) Mailing or Delivering Summons and Complaint. A copy of the summons and complaint, at any time after the filing of the affidavit for publication and not later than 10 days after the first publication of the summons, must be deposited in a post office or with a third-party commercial carrier in this state, postage or shipping prepaid, and directed to the defendant to be served at the defendant’s last reasonably ascertainable address.(5) Personal Service Outside State Equivalent to Publication. After the affidavit for publication and the complaint in the action are filed, personal service of the summons and complaint upon the defendant out of state is equivalent to and has the same force and effect as the publication and mailing or delivery provided for in paragraphs (3) and (4) of this subdivision.(6) Time When First Publication or Service Outside State Must Be Made. The first publication of the summons, or personal service of the summons and complaint upon the defendant out of the state, must be made within 60 days after the filing of the affidavit for publication. If not so made, the action is deemed discontinued as to any defendant not served within that time.(7) When Defendant Served by Publication Permitted to Defend. The defendant upon whom service by publication is made, or the defendant’s representative, on application and sufficient cause shown at any time before judgment, must be allowed to defend the action. Except in an action for divorce, the defendant upon whom service by publication is made, or the defendant’s representative, upon making it appear to the satisfaction of the court by affidavit, stating the facts, that the defendant has a good and meritorious defense to the action, and the defendant had no actual notice or knowledge of the pendency of the action so as to enable the defendant to make application to defend before the entry of judgment, and upon filing an affidavit of merits, may be allowed to defend at any time within 3 years after entry of judgment on such terms as may be just. If the defense is successful and the judgment, or any part of the judgment, has been collected or otherwise enforced, restitution may be ordered by the court, but the title to property sold under the judgment to a purchaser in good faith may not be affected. A defendant who receives a copy of the summons in the action mailed or delivered to the defendant as provided in paragraph (4), or upon whom the summons is personally served out of this state, as provided in paragraph (5), is deemed to have had notice of the pendency of the action and of the judgment.(8) Additional Information to be Published. In all cases where publication of summons is made in an action in which the title to, or an interest in or lien upon, real property is involved or affected or brought into question, the publication must also contain a description of the real property and a statement of the object of the action.(f) Service Upon a Person in a Foreign Country. Unless otherwise provided by law, service upon an individual, other than an infant or an incompetent person, may be effected in a place not within any judicial district of the United States:(1) by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or(2) if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided the service is reasonably calculated to give notice:(A) in the manner prescribed by law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or(B) as directed by the foreign authority in response to a letter rogatory or letter of request; or(C) unless prohibited by the law of the foreign country, by(i) delivery to the individual personally of a copy of the summons and the complaint; or(ii) any form of mail or third-party commercial delivery requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or(3) by any other means not prohibited by international agreement as may be directed by the court. Unless otherwise provided by law, service must be effected upon an infant or an incompetent person in a place not within any judicial district of the United States in the manner prescribed by paragraphs (2)(A) or (B), and (3). Unless otherwise provided by law, service must be effected upon a foreign corporation, partnership or other unincorporated association, that is subject to suit under a common name, in a place not within any judicial district of the United States in the manner prescribed for individuals in this subdivision except personal delivery as provided in paragraph (2)(C)(i).(g) When Service by Publication or Outside State Complete. Service by publication is complete upon the expiration of fifteen days after the first publication of the summons. Personal service of the summons and complaint upon the defendant out of state is complete upon the expiration of fifteen days after the date of service.(h) Amendment. At any time and upon such notice and terms as it deems just, the court, in its discretion, 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.(i) Proof of Service. Proof of service of the summons and of the complaint or notice, if any, accompanying the same or of other process, must be made as follows:(1) if served by the sheriff or other officer, by the officer’s certificate of service;(2) if served by any other person, by the server’s affidavit of service;(3) if served by publication, by an affidavit made as provided in Section 31 04 06 of the North Dakota Century Code and an affidavit of mailing or an affidavit of delivery via a third-party commercial carrier of a copy of the summons and complaint in accordance with subdivision (4) of subsection (e) of this rule, if the same has been deposited;(4) in any other case of service by mail or delivery via a third-party commercial carrier resulting in delivery in accordance with paragraph (2) or (3) of subdivision (d) of this rule, by an affidavit of mailing or an affidavit of delivery of a copy of the summons and complaint or other process, with return receipt attached; or(5) by the written admission of the defendant.(j) Content of Proof of Service. The certificate, affidavit or admission of service mentioned in subdivision (h) of this rule must state the date, time, place and manner of service. If the process, pleading, order of court, or other paper is served personally by a person other than the sheriff or person designated by law, the affidavit of service must also state that the server is of legal age and not a party to the action nor interested in the action, and that the server knew the person served to be the person named in the papers served and the person intended to be served.(k) Content of Affidavit of Mailing or Delivery via a Third-party Commercial Carrier. An affidavit of mailing or delivery required by this rule must state a copy of the process, pleading, order of court, or other paper to be served was deposited by the affiant, with postage or shipping prepaid, in the mail or with a third-party commercial carrier and directed to the party shown in the affidavit to be served at the party’s last reasonably ascertainable address. The affidavit must contain the date and place of deposit and indicate the affiant is of legal age. The return receipt, if any, must be attached to the affidavit.(l) Effect of Mail or Delivery Refusal. If a summons and complaint or other process is mailed or sent with delivery restricted and requiring a receipt signed by the addressee, the addressee’s refusal to accept the mail or delivery constitutes delivery. Return of the mail or delivery bearing an official indication on the cover delivery was refused by the addressee is prima facie evidence of the refusal.
EXPLANATORY NOTERule 4 was amended, effective 1971; January 1, 1976; January 1, 1977; January 1, 1979; September 1, 1983; March 1, 1986; March 1, 1990; March 1, 1996; March 1, 1998; March 1, 1999.Rule 4 governs civil jurisdiction and service of process. In contrast, Rule 5 applies to service of papers other than process.Rule 4 was amended, effective March 1, 1999, to allow delivery via a third-party commercial carrier as an alternative to the Postal Service. The requirement for a “third-party” is consistent with the rule’s requirement for personal service by a person not a party to nor interested in the action. The requirement for a “commercial carrier” means it must be the regular business of the carrier to make deliveries for profit. A law firm may not act as its own commercial carrier service for service of process. Finally, the phrase “commercial carrier” is not intended to include or authorize electronic delivery. Service via e-mail or facsimile transmission is not permitted by Rule 4.Originally, Rule 4 concerned process, with no mention of jurisdiction. In 1971, what are now subdivisions (a) [Definition of Person] and (b) [Jurisdiction Over Person] were added. They were taken from the Uniform Interstate and International Procedure Act. Many changes were also made to subdivision (d) [previously (c)] concerning personal service, several of which were taken from that Act.Subdivision (c) was amended, effective March 1, 1998, to provide a defendant with the means to compel the plaintiff to file the action.Subdivision (d) was amended, effective March 1, 1998, to allow personal service by delivering a copy of the summons to an individual’s spouse.A problem may arise with service by mail or delivery by third-party commercial carrier, under subdivisions (d)(2) or (d)(3)(C) when the person to be served refuses delivery. This refusal of delivery is tantamount to receipt of the mail or delivery for purposes of service. On the other hand, if the mail or delivery is unclaimed, no service is made. Subdivision (l) was added in 1983, effective September 1, 1983, to make it clear that refusal of delivery by the addressee constitutes delivery.Statutes governing special procedures often conflict with these rules. As an example, N.D.C.C. 32-19-32 concerning the time period for mailing the summons and complaint after publication in a mortgage foreclosure conflicts with Rule 4(e)(4). In this situation, Rules 4(d)(4) and 81(a) recognize that provisions of the statute prevail.A new subdivision (f) was added, effective March 1, 1996, to provide procedures for service upon a person in a foreign country. The new procedures follow Rule 26(f), Fed.R.Civ.P. The letter designation of each subdivision was changed accordingly.SOURCES: Joint Procedure Committee Minutes of April 30-May 1, 1998, pages 3, 8, and 11; January 29-30, 1998, pages 17-18; September 25-26, 1997, page 2; January 30, 1997, pages 6-7, 10-12; September 26-27, 1996, pages 14-16; January 26-27, 1995, pages 7-8; April 20, 1989, page 2; December 3, 1987, pages 1-4 and 11; May 21-22, 1987, page 5; November 29, 1984, pages 3-5; September 30-October 1, 1982, pages 15-18; April 15-16, 1982, pages 2-5; December 11-12, 1980, page 2; October 30-31, 1980, page 31; January 17-18, 1980, pages 1-3; November 29-30, 1979, page 2; October 27-28, 1977, page 10; April 8-9, 1976, pages 5-9; Rule 4, FRCivP.STATUTES AFFECTED:SUPERSEDED: Sections 28-0502, 28-0503, 28-0504, 28-0505, 28-0601, 28-0602, 28-0603, 28-0604, 28-0605, 28-0606, 28-0607, 28-0608, 28-0609, 28-0610, 28-0616, 28-0619, 28-0620, 28-0621, 28-0622, 28-0623, 28-0624, 28-0625, 28-0626, 28-0627, 28-0628, 28-0629, 28-0632, 28-3001, NDRC 1943, and Chapters 28-06, 28-06.1, N.D.C.C.CROSS REFERENCE: Rules 5 (Service and Filing of Pleadings and Other Papers), 45 (Subpoena), and 81 (Applicability In General), N.D.R.Civ.P.; Rule 8.4 (Summons in Action for Divorce or Separation), N.D.R.Ct..[Effective March 1, 1999]Rule 45. Subpoena(a) Form; Issuance(1) Every subpoena must(A) state the title of the action, the name of the court in which it is filed, and its civil action number; and(B) command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or upon order of the court for good cause shown, to permit inspection of premises, at a time and place therein specified. A copy of any court order must be attached to the subpoena. A command to produce evidence or to permit inspection may be joined with a command to appear at a trial or hearing or at a deposition, or may be issued separately.(2) A subpoena must be issued by the clerk under the seal of the court or by an attorney for a party to the action or special proceeding. The subpoena must be issued in the name of the court for the county in which the action is filed. If issued by the clerk, it must be issued signed and sealed but otherwise blank, and the party requesting the subpoena shall complete it before service. If issued by an attorney for a party, the subpoena must be subscribed in the name of the attorney together with the attorney’s office address and must identify the party for whom the attorney appears.(3) A subpoena may be issued by the clerk, under seal of the court, to an attorney representing a party in a civil action pending in another state upon filing proof of service of notice under subdivision (b)(2), or to a party in a civil action pending in another state upon filing a letter of request from a foreign court. The subpoena must be issued in the name of the court for the county where the subpoena will be served. The subpoena may be used and discovery obtained within this state in the same manner and subject to the same conditions and limitations as if the action were pending within this state. Any dispute regarding the subpoena, or discovery demanded, needing judicial involvement must be submitted to the court for the county where the subpoena issued.(b) Service; Notice.(1) Service of a subpoena upon a person named therein must be made by personal service under Rule 4(d) and, if the person’s attendance is commanded, by tendering to that person the fees for one day’s attendance and the mileage and travel expense allowed by law. The witness need not obey the subpoena if the witness fee and payment for mileage and travel expense are not tendered with the subpoena. The witness fee, mileage and travel expense are not required to be tendered, if the witness fee, mileage and travel expense are to be paid by this state or any political subdivision thereof. A subpoena may be served at any place within the state.(2) Service of a notice to take a deposition as provided in Rules 30(b) and 31(a) is a prerequisite for the issuance of a subpoena that commands a person to attend and give testimony at a pretrial deposition. Service of a notice for production, inspection or copying, as provided in this rule, is a prerequisite for the issuance of a subpoena that commands production, inspection or copying before trial. A description of the material to be produced, inspected or copied, or a description of the premises to be inspected, must be included in the notice or attached to the notice. Notice must be served on each party in the manner set by Rule 5(b). A copy of the notice and of the proof of service are sufficient authorization for the clerk to issue a subpoena for a pretrial deposition, pretrial production, pretrial inspection or pretrial copying. The attorney’s signature on a subpoena issued by an attorney for a party constitutes certification that notice was served.(c) Protection of person subject to subpoenas:(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney’s fee.(2) (A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things or inspection of premises need not appear in person at the place of production, inspection or copying unless commanded to appear for a deposition, hearing or trial.(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce, permit inspection or copying before a trial or hearing may object in writing. The objection must be received by the party or attorney designated in the subpoena within 10 days after receipt of the subpoena. If the time specified in the subpoena for compliance is less than 10 days, any objection must be received at least 24 hours before the time specified for compliance. If objection is made, the party serving the subpoena is not entitled to production, inspection or copying except upon order of the court by which the subpoena was issued. If objection is made, the party serving the subpoena may, upon notice to the person commanded to produce, permit inspection or copying, move at any time for an order to compel production, inspection or copying. An order to compel production, inspection or copying must protect any person who is not a party or an officer of a party from significant expense resulting from production, inspection or copying.(3) A resident of this state may be required by subpoena to attend a deposition only in the county where that person resides, is employed or transacts business in person, or at such other convenient place as prescribed by order of court. A nonresident of this state may be required by subpoena to attend a deposition in any county of this state. A resident or nonresident may be required to attend a hearing or trial any place within this state.(4) On timely motion, the court by which a subpoena was issued shall quash or modify a subpoena that(i) fails to allow reasonable time for compliance;(ii) requires attendance beyond the requirements of paragraph (c)(3) of this rule;(iii) subjects a person to undue burden; or(iv) requires disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study made not at the request of any party.(d) Duties in Responding to Subpoena.(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim must be made expressly and must be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.(e) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be a contempt of the court from which the subpoena issued. An adequate cause for failure to obey exists when a subpoena purports to require a non-party to attend or produce at a place not within the limits provided by paragraph (c)(3).(f) Notice. All subpoenas commanding pretrial or prehearing production, inspection or copying must contain the following notice:”You may object to this subpoena by sending or delivering a written objection, stating your valid reason, to {Insert the name and address of the party, or attorney representing the party seeking production, inspection or copying}. Any objection must be received within 10 days after you receive the subpoena. If the time specified in the subpoena for compliance is less than 10 days, any objection must be received at least 24 hours before the time specified for compliance.If you make a timely objection, you do not need to comply with this subpoena unless the court orders otherwise. You will be notified if the party serving the subpoena seeks a court order compelling compliance with this subpoena. You will then have the opportunity to contest enforcement.Failure to obey this subpoena, without making a timely objection, and stating a valid reason, may be contempt of court.”
EXPLANATORY NOTERule 45 was amended, effective July 1, 1981; January 1, 1988; January 1, 1995; March 1, 1997; March 1, 1999.Rule 45 was revised, effective January 1, 1995, in response to the 1991 federal revision. Significant changes to North Dakota’s rule include the following: (1) An action must be filed before a subpoena may issue; (2) A subpoena may compel a non-party to produce evidence independent of any deposition; (3) A subpoena may compel the inspection of premises in the possession of a non-party upon order of the court for good cause shown; and (4) Notice must be printed on a subpoena advising of the right to object when pretrial or prehearing production or inspection is commanded. The scope of discovery under Rule 26 is not intended to be altered by the revision.Subdivision (f) was amended, effective March 1, 1999, to allow an objection to a subpoena to be sent via a commercial carrier as an alternative to mail.
SOURCES: Joint Procedure Committee Minutes of January 29-30, 1998, page 20; January 25-26, 1996, page 20; January 27-28, 1994, pages 11-16; April 29-30, 1993, pages 4-8, 18-20; January 28-29, 1993, pages 2-7; May 21-22, 1987, page 3; February 19-20, 1987, pages 3-4; October 30-31, 1980, pages 26-29; November 29-30, 1979, page 12; Rule 45, FRCivP.STATUTES AFFECTED:SUPERSEDED: Sections 31-0113, 31-0120, 31-0121, 31-0302, 31-0303, 31-0305, 31-0306, 31-0310, 31-0311, 31-0312, 31-0314, NDRC 1943; Section 31-05-22, N.D.C.C. CROSS REFERENCE: Rules 26 (General Provisions Governing Discovery), 30 (Depositions Upon Oral Examination), and 31 (Depositions of Witnesses Upon Written Questions), N.D.R.Civ.P.; Rule 17 (Subpoena) N.D.R.Crim.P.

Topics: Process Service | No Comments »

Rhode Island Foreclosure Process Server Laws

By admin | April 9, 2010

Rule 4. Process, attachment, trustee process, arrest.

(a) Summons: Form. The summons shall bear the signature or facsimile signature of the clerk, be under the seal of the court, identify the court and the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney or, if unrepresented, of the plaintiff. It shall also state the time within which the defendant must appear and defend, and notify the defendant that failure to do so will result in a judgment by default against the defendant for the relief demanded in the complaint. The court may allow a summons to be amended.

(b) Same: Issuance. The summons may be procured in blank from the clerk and shall be filled out by the plaintiff’s attorney as provided in subdivision (a) of this rule. The plaintiff’s attorney shall deliver to the person who is to make service the original summons upon which to make the return of service and a copy of the summons and of the complaint for service upon each defendant. Additional summons may be issued against any defendant.

(c) By Whom Served. Service of all process shall be made by a sheriff or the sheriff’s deputy, within the sheriff’s county, by a duly authorized constable, or by any person who is not a party and who is at least 18 years of age.

(d) Waiver of Service; Duty to Save Costs of Service; Request to Waive.

(1) A defendant who waives service of a summons does not thereby waive any objection to the venue or to the jurisdiction of the court over the person of the defendant.

(2) An individual or corporation that is subject to service under subdivision (e)(1), (e)(3), or (f), and that receives notice of an action in the manner provided in this paragraph has a duty to avoid unnecessary costs of serving the summons. To avoid costs, the plaintiff may notify such a defendant of the commencement of the action and request that the defendant waive service of a summons. The notice and request

(A) Shall be in writing and shall be addressed directly to the defendant, if an individual, or else to an officer or managing or general agent (or other agent authorized by appointment or law to receive service of process) of a defendant subject to service under the laws of this state;

(B) Shall be dispatched through first-class mail or other reliable means;

(D) Shall inform the defendant, by means of a text prescribed in an official form promulgated pursuant to Rule 84, of the consequences of compliance and of a failure to comply with the request;

(E) Shall set forth the date on which the request is sent;

(F) Shall allow the defendant a reasonable time to return the waiver, which shall be at least 30 days from the date on which the request is sent, or 60 days from that date if the defendant is addressed outside the United States; and

(G) Shall provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing. If a defendant located within the United States fails to comply with a request for waiver made by a plaintiff located within the United States, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure be shown.

(3) A defendant that, before being served with process, timely returns a waiver so requested is not required to serve an answer to the complaint until 60 days after the date on which the request for waiver of service was sent, or 90 days after that date if the defendant was addressed outside the United States.

(4) When the plaintiff files a waiver of service with the court, the action shall proceed, except as provided in paragraph (3), as if a summons and complaint had been served at the time of filing the waiver, and no proof of service shall be required.

(5) The costs to be imposed on a defendant under paragraph (2) for failure to comply with a request to waive service of a summons shall include the costs subsequently incurred in effecting service under subdivision (e), (f), or (h), together with the costs, including a reasonable attorney’s fee, of any motion required to collect the costs of service.

(e) Summons: Personal Service. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:

(1) Upon an individual from whom a waiver has not been obtained and filed other than an incompetent person, by delivering a copy of the summons and complaint to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process, provided that if the agent is one designated by statute to receive service, such further notice as the statute requires shall be given.

(2) Upon a person for whom a guardian or conservator has been appointed by serving copies of the summons and complaint upon such guardian or conservator and upon the incompetent person in the manner provided in paragraph (1) of this subdivision.

(3) Upon a private corporation, domestic or foreign, from which a waiver of service has not been obtained and filed, by delivering a copy of the summons and complaint to an officer, a managing or general agent, or by leaving a copy of the summons and complaint at an office of the corporation with a person employed therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process, provided that if the agent is one designated by statute to receive service, such further notice as the statute requires shall be given.

(4) Upon the state by delivering a copy of the summons and complaint to the attorney general or an assistant attorney general.

(5) Upon a public corporation, body, or authority by delivering a copy of the summons and complaint to any officer, director, or manager thereof.

(f) Service Outside State Within the United States; Personal Jurisdiction. When an individual or a foreign corporation is subject to the jurisdiction of the courts of the state, service of process may be made outside the state as follows:

(1) Upon an individual by delivery of a copy of the summons and complaint to the individual personally by any disinterested person, or by mailing a copy of the summons and complaint to the individual by registered or certified mail, return receipt requested, or by any other method ordered by the court to give such individual notice of the action and sufficient time to prepare any defense thereto.

(2) Upon a foreign corporation by delivery of a copy of the summons and complaint by any disinterested person to the president, secretary, or treasurer of such corporation or to any agent or attorney for service of process designated by the corporation in the state of incorporation, or by mailing a copy of the summons and complaint to any such officer or agent or to the corporation at its business address designated in the state of incorporation by registered or certified mail, return receipt requested, or by any other method ordered by the court to give such corporation notice of the action and sufficient time to prepare any defense thereto.

(g) Service Upon Individuals in a Foreign Country. Unless otherwise provided by state or federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effected in a place not within the United States:

(1) By any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extra judicial Documents; or

(2) If there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice:

(A) In the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or

(B) As directed by the foreign authority in response to a letter rogatory or letter of request; or

(i) Delivery to the individual personally of a copy of the summons and the complaint; or

(ii) Any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or

(3) By other means not prohibited by international agreement as may be directed by the court.

(h) Service Outside the State in Certain Actions. Where service cannot with due diligence be made personally within the state, service of the summons and complaint may be made outside the state in the manner provided by subdivisions (f) and (g) of this rule in the following cases:

(1) Where an interest of a person in property or credits within the state has been brought before the court by attachment or trustee process, or

(2) Where a pleading demands a judgment that a person be excluded from a vested or contingent interest in or lien upon specific real or personal property within the state; or that such an interest or lien of any party be enforced, regulated, defined, determined, or limited.

(i) Service by Publication. Whenever in an action described in subdivision (h) of this rule complete service cannot with due diligence be made by another prescribed method, the court shall order service by publication of a notice of the action in one or more newspapers in such form and for such length of time as the court shall direct. If a statute expressly provides for service of process by publication, publication shall be in the form and manner provided by such statute.

(j) Proof of Service. If service is not waived, the person effecting service shall make proof thereof on the original process or a paper attached thereto for that purpose, and shall forthwith return it to the plaintiff’s attorney. If service is made by a person other than a sheriff or the sheriff’s deputy, that person shall make affidavit thereof. Any return receipt received in connection therewith shall be annexed to such process when returned. The plaintiff’s attorney shall, within the time during which the person served must respond to the process, file the proof of service with the court. Failure to make proof of service does not affect the validity of the service.

(k) Amendment. 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.

(l) Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the commencement of the action and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

(m) Attachment and Trustee Process.

(l) Availability of Remedies. In connection with the commencement of any action under these rules, attachment, including trustee process, shall be available to the extent and in the manner provided by law.

(2) Writ of Attachment: Form.The writ of attachment shall bear the signature or facsimile signature of the clerk, be under the seal of the court, contain the name of the court, the names and residences of the parties and the trustee, if any, and the date of the commencement of the action, be directed to the sheriffs of the several counties or their deputies, or to other officers authorized by law to serve the same, and command them to attach the goods or estate of the defendant to the value of the amount of the plaintiff’s demand for judgment, together with a reasonable allowance for interest and costs, and to make due return of their doings thereon.

(3) Same: Issuance.The writ of attachment may be procured in blank from the clerk, shall be filled out by the plaintiff’s attorney as provided in paragraph (2) of this subdivision, and shall be submitted to the court with a motion for its issuance. The motion shall be granted only upon a showing that there is a probability of a judgment being rendered in favor of the plaintiff and that there is a need for furnishing the plaintiff security in the amount sought for satisfaction of such judgment, together with interest and costs. A motion hereunder shall not be granted ex parte. Security may be required in connection with issuance of any writ of attachment. A surety upon a bond or undertaking hereunder shall be subject to the provisions of Rule 65(c).

(4) Same: Service.The plaintiff’s attorney shall deliver to the officer making service a copy of the proposed writ of attachment together with a copy of the motion for its issuance and the notice of hearing thereof. When the summons and complaint are served upon the defendant as provided in subdivisions (d) through (i) of this rule, the defendant shall also be served with a copy of the proposed writ of attachment and of the motion for its issuance with the notice of hearing thereof. An attachment made after service of the summons and complaint shall be made as provided in paragraph (6) of this subdivision.

(5) Attachment on Counterclaim, Cross-Claim, or Third-Party Complaint.Attachment may be utilized by a party bringing a counterclaim, a cross-claim, or a third-party complaint in the same manner as upon an original claim.

(6) Subsequent Attachment. After service of the summons and complaint upon the defendant, attachment shall be available to the extent and in the manner provided by law, shall follow the form prescribed in paragraph (2) of this subdivision, and shall be issued in accordance with paragraph (3) of this subdivision. All papers shall be served upon the defendant in the manner provided for service of process under subdivisions (d) through (i) of this rule unless the defendant has appeared in the action, in which case service shall be made as provided in Rule 5(b).

(7) Return of Service. Upon service of a writ of attachment and copy thereof, the person making the service shall make the return as provided in subdivision (j) of this rule.

(n) Arrest.

(l) Availability of Remedy.In connection with the commencement of any action under these rules, a writ of arrest shall be available to the extent and in the manner provided by law.

(2) Form and Service.The writ of arrest shall be obtained and filled out in the same manner as a writ of attachment, shall be accompanied by such affidavit as may be required by law, and shall be submitted to the court with a motion for its issuance. An order of issuance shall be indorsed on the writ by the court. Service of such writ shall be accompanied by service upon the defendant of a copy of the summons and complaint, and return of service shall be made in the same manner as return of service on a writ of attachment.

(3) Subsequent Writ of Arrest.After service of the summons and complaint upon the defendant a writ of arrest shall be available to the extent and in the manner provided by law and shall be issued and served as provided in paragraph (2) of this subdivision.

(4) Ne Exeat.An order of arrest may be entered when the plaintiff has demanded and would be entitled to a judgment requiring the performance of an act, the neglect or refusal to perform which would be punishable by the court as a contempt, and where the defendant is not a resident of the state or is about to depart therefrom, by reason of which nonresidence or departure there is danger that such judgment or order will be rendered ineffectual.

(As amended September 5, 1995.)

Case Note:

Service of process upon a foreign corporation incorporated in a nation which is a party to the Hague Convention must be made in accordance with the terms of that convention. Cipolla v. Picard Porsche Audi, Inc., 946 A.2d 130 (R.I. 1985).

Rhode Island General Laws

Â§ 45-16-14 Unauthorized services of process.Any individual who serves, or attempts to serve, any writ or legal process for any court of this state; other than sheriffs, deputy sheriffs, and those individuals so authorized for such service pursuant to this chapter, or other individuals authorized by law or by rule of court shall be fined not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000), and/or imprisoned for a term of not less than six (6) months, nor more than one year in prison, for each violation. Provided, however, this section shall not apply to any city or town constable nor to any power or authority granted to them by any general or special law.

Rule 45. Subpoena.

(a) Form; Issuance.Every subpoena shall be issued by the clerk of court or a notary public or other officer authorized by statute, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated documents or tangible things in the possession, custody or control of that person or to permit inspection of premises at a time and place therein specified. The subpoena shall set forth the text of subdivisions (c) and (d) of this rule. A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately.

(b) Service.A subpoena may be served by the sheriff, by the sheriff’s deputy, by a constable, or by any other person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and, if the person’s attendance is commanded, by tendering to that person the fees for one day’s attendance and the mileage allowed by law. When the subpoena is issued on behalf of the state or an officer or agency thereof, fees and mileage need not be tendered. Prior notice of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(b). A subpoena may be served at any place within the state.

(2) (A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.

(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.

(3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it

(i) Fails to allow reasonable time for compliance;

(ii) Requires disclosure of privileged or other protected matter and no exception or waiver applies, or

(iii) Subjects a person to undue burden.

(B) If a subpoena

(i) Requires disclosure of a trade secret or other confidential research, development, or commercial information, or

(ii) Requires disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study made not at the request of any party, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.

(d) Duties in Responding to Subpoena.

(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.

(e) Contempt.Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court in which the action is pending.

(As amended September 5, 1995.)

Rule 4. Process, attachment, trustee process, arrest.(a) Summons: Form. The summons shall bear the signature or facsimile signature of the clerk, be under the seal of the court, identify the court and the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney or, if unrepresented, of the plaintiff. It shall also state the time within which the defendant must appear and defend, and notify the defendant that failure to do so will result in a judgment by default against the defendant for the relief demanded in the complaint. The court may allow a summons to be amended.(b) Same: Issuance. The summons may be procured in blank from the clerk and shall be filled out by the plaintiff’s attorney as provided in subdivision (a) of this rule. The plaintiff’s attorney shall deliver to the person who is to make service the original summons upon which to make the return of service and a copy of the summons and of the complaint for service upon each defendant. Additional summons may be issued against any defendant.(c) By Whom Served. Service of all process shall be made by a sheriff or the sheriff’s deputy, within the sheriff’s county, by a duly authorized constable, or by any person who is not a party and who is at least 18 years of age.(d) Waiver of Service; Duty to Save Costs of Service; Request to Waive.(1) A defendant who waives service of a summons does not thereby waive any objection to the venue or to the jurisdiction of the court over the person of the defendant.(2) An individual or corporation that is subject to service under subdivision (e)(1), (e)(3), or (f), and that receives notice of an action in the manner provided in this paragraph has a duty to avoid unnecessary costs of serving the summons. To avoid costs, the plaintiff may notify such a defendant of the commencement of the action and request that the defendant waive service of a summons. The notice and request(A) Shall be in writing and shall be addressed directly to the defendant, if an individual, or else to an officer or managing or general agent (or other agent authorized by appointment or law to receive service of process) of a defendant subject to service under the laws of this state;(B) Shall be dispatched through first-class mail or other reliable means;(C) Shall be accompanied by a copy of the complaint and shall identify the court in which it has been filed;(D) Shall inform the defendant, by means of a text prescribed in an official form promulgated pursuant to Rule 84, of the consequences of compliance and of a failure to comply with the request;(E) Shall set forth the date on which the request is sent;(F) Shall allow the defendant a reasonable time to return the waiver, which shall be at least 30 days from the date on which the request is sent, or 60 days from that date if the defendant is addressed outside the United States; and(G) Shall provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing. If a defendant located within the United States fails to comply with a request for waiver made by a plaintiff located within the United States, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure be shown.(3) A defendant that, before being served with process, timely returns a waiver so requested is not required to serve an answer to the complaint until 60 days after the date on which the request for waiver of service was sent, or 90 days after that date if the defendant was addressed outside the United States.(4) When the plaintiff files a waiver of service with the court, the action shall proceed, except as provided in paragraph (3), as if a summons and complaint had been served at the time of filing the waiver, and no proof of service shall be required.(5) The costs to be imposed on a defendant under paragraph (2) for failure to comply with a request to waive service of a summons shall include the costs subsequently incurred in effecting service under subdivision (e), (f), or (h), together with the costs, including a reasonable attorney’s fee, of any motion required to collect the costs of service.(e) Summons: Personal Service. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:(1) Upon an individual from whom a waiver has not been obtained and filed other than an incompetent person, by delivering a copy of the summons and complaint to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process, provided that if the agent is one designated by statute to receive service, such further notice as the statute requires shall be given.(2) Upon a person for whom a guardian or conservator has been appointed by serving copies of the summons and complaint upon such guardian or conservator and upon the incompetent person in the manner provided in paragraph (1) of this subdivision.(3) Upon a private corporation, domestic or foreign, from which a waiver of service has not been obtained and filed, by delivering a copy of the summons and complaint to an officer, a managing or general agent, or by leaving a copy of the summons and complaint at an office of the corporation with a person employed therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process, provided that if the agent is one designated by statute to receive service, such further notice as the statute requires shall be given.(4) Upon the state by delivering a copy of the summons and complaint to the attorney general or an assistant attorney general.(5) Upon a public corporation, body, or authority by delivering a copy of the summons and complaint to any officer, director, or manager thereof.(f) Service Outside State Within the United States; Personal Jurisdiction. When an individual or a foreign corporation is subject to the jurisdiction of the courts of the state, service of process may be made outside the state as follows:(1) Upon an individual by delivery of a copy of the summons and complaint to the individual personally by any disinterested person, or by mailing a copy of the summons and complaint to the individual by registered or certified mail, return receipt requested, or by any other method ordered by the court to give such individual notice of the action and sufficient time to prepare any defense thereto.(2) Upon a foreign corporation by delivery of a copy of the summons and complaint by any disinterested person to the president, secretary, or treasurer of such corporation or to any agent or attorney for service of process designated by the corporation in the state of incorporation, or by mailing a copy of the summons and complaint to any such officer or agent or to the corporation at its business address designated in the state of incorporation by registered or certified mail, return receipt requested, or by any other method ordered by the court to give such corporation notice of the action and sufficient time to prepare any defense thereto.(g) Service Upon Individuals in a Foreign Country. Unless otherwise provided by state or federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effected in a place not within the United States:(1) By any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extra judicial Documents; or(2) If there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice:(A) In the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or(B) As directed by the foreign authority in response to a letter rogatory or letter of request; or(C) Unless prohibited by the law of the foreign country, by(i) Delivery to the individual personally of a copy of the summons and the complaint; or(ii) Any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or(3) By other means not prohibited by international agreement as may be directed by the court.(h) Service Outside the State in Certain Actions. Where service cannot with due diligence be made personally within the state, service of the summons and complaint may be made outside the state in the manner provided by subdivisions (f) and (g) of this rule in the following cases:(1) Where an interest of a person in property or credits within the state has been brought before the court by attachment or trustee process, or(2) Where a pleading demands a judgment that a person be excluded from a vested or contingent interest in or lien upon specific real or personal property within the state; or that such an interest or lien of any party be enforced, regulated, defined, determined, or limited.(i) Service by Publication. Whenever in an action described in subdivision (h) of this rule complete service cannot with due diligence be made by another prescribed method, the court shall order service by publication of a notice of the action in one or more newspapers in such form and for such length of time as the court shall direct. If a statute expressly provides for service of process by publication, publication shall be in the form and manner provided by such statute.(j) Proof of Service. If service is not waived, the person effecting service shall make proof thereof on the original process or a paper attached thereto for that purpose, and shall forthwith return it to the plaintiff’s attorney. If service is made by a person other than a sheriff or the sheriff’s deputy, that person shall make affidavit thereof. Any return receipt received in connection therewith shall be annexed to such process when returned. The plaintiff’s attorney shall, within the time during which the person served must respond to the process, file the proof of service with the court. Failure to make proof of service does not affect the validity of the service.(k) Amendment. 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.(l) Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the commencement of the action and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.(m) Attachment and Trustee Process.(l) Availability of Remedies. In connection with the commencement of any action under these rules, attachment, including trustee process, shall be available to the extent and in the manner provided by law.(2) Writ of Attachment: Form.The writ of attachment shall bear the signature or facsimile signature of the clerk, be under the seal of the court, contain the name of the court, the names and residences of the parties and the trustee, if any, and the date of the commencement of the action, be directed to the sheriffs of the several counties or their deputies, or to other officers authorized by law to serve the same, and command them to attach the goods or estate of the defendant to the value of the amount of the plaintiff’s demand for judgment, together with a reasonable allowance for interest and costs, and to make due return of their doings thereon.(3) Same: Issuance.The writ of attachment may be procured in blank from the clerk, shall be filled out by the plaintiff’s attorney as provided in paragraph (2) of this subdivision, and shall be submitted to the court with a motion for its issuance. The motion shall be granted only upon a showing that there is a probability of a judgment being rendered in favor of the plaintiff and that there is a need for furnishing the plaintiff security in the amount sought for satisfaction of such judgment, together with interest and costs. A motion hereunder shall not be granted ex parte. Security may be required in connection with issuance of any writ of attachment. A surety upon a bond or undertaking hereunder shall be subject to the provisions of Rule 65(c).(4) Same: Service.The plaintiff’s attorney shall deliver to the officer making service a copy of the proposed writ of attachment together with a copy of the motion for its issuance and the notice of hearing thereof. When the summons and complaint are served upon the defendant as provided in subdivisions (d) through (i) of this rule, the defendant shall also be served with a copy of the proposed writ of attachment and of the motion for its issuance with the notice of hearing thereof. An attachment made after service of the summons and complaint shall be made as provided in paragraph (6) of this subdivision.(5) Attachment on Counterclaim, Cross-Claim, or Third-Party Complaint.Attachment may be utilized by a party bringing a counterclaim, a cross-claim, or a third-party complaint in the same manner as upon an original claim.(6) Subsequent Attachment. After service of the summons and complaint upon the defendant, attachment shall be available to the extent and in the manner provided by law, shall follow the form prescribed in paragraph (2) of this subdivision, and shall be issued in accordance with paragraph (3) of this subdivision. All papers shall be served upon the defendant in the manner provided for service of process under subdivisions (d) through (i) of this rule unless the defendant has appeared in the action, in which case service shall be made as provided in Rule 5(b).(7) Return of Service. Upon service of a writ of attachment and copy thereof, the person making the service shall make the return as provided in subdivision (j) of this rule.(n) Arrest.(l) Availability of Remedy.In connection with the commencement of any action under these rules, a writ of arrest shall be available to the extent and in the manner provided by law.(2) Form and Service.The writ of arrest shall be obtained and filled out in the same manner as a writ of attachment, shall be accompanied by such affidavit as may be required by law, and shall be submitted to the court with a motion for its issuance. An order of issuance shall be indorsed on the writ by the court. Service of such writ shall be accompanied by service upon the defendant of a copy of the summons and complaint, and return of service shall be made in the same manner as return of service on a writ of attachment.(3) Subsequent Writ of Arrest.After service of the summons and complaint upon the defendant a writ of arrest shall be available to the extent and in the manner provided by law and shall be issued and served as provided in paragraph (2) of this subdivision.(4) Ne Exeat.An order of arrest may be entered when the plaintiff has demanded and would be entitled to a judgment requiring the performance of an act, the neglect or refusal to perform which would be punishable by the court as a contempt, and where the defendant is not a resident of the state or is about to depart therefrom, by reason of which nonresidence or departure there is danger that such judgment or order will be rendered ineffectual.(As amended September 5, 1995.)Case Note:Service of process upon a foreign corporation incorporated in a nation which is a party to the Hague Convention must be made in accordance with the terms of that convention. Cipolla v. Picard Porsche Audi, Inc., 946 A.2d 130 (R.I. 1985).Rhode Island General LawsÂ§ 45-16-14 Unauthorized services of process.Any individual who serves, or attempts to serve, any writ or legal process for any court of this state; other than sheriffs, deputy sheriffs, and those individuals so authorized for such service pursuant to this chapter, or other individuals authorized by law or by rule of court shall be fined not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000), and/or imprisoned for a term of not less than six (6) months, nor more than one year in prison, for each violation. Provided, however, this section shall not apply to any city or town constable nor to any power or authority granted to them by any general or special law.Rule 45. Subpoena.(a) Form; Issuance.Every subpoena shall be issued by the clerk of court or a notary public or other officer authorized by statute, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated documents or tangible things in the possession, custody or control of that person or to permit inspection of premises at a time and place therein specified. The subpoena shall set forth the text of subdivisions (c) and (d) of this rule. A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately.(b) Service.A subpoena may be served by the sheriff, by the sheriff’s deputy, by a constable, or by any other person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and, if the person’s attendance is commanded, by tendering to that person the fees for one day’s attendance and the mileage allowed by law. When the subpoena is issued on behalf of the state or an officer or agency thereof, fees and mileage need not be tendered. Prior notice of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(b). A subpoena may be served at any place within the state.(c) Protection of Persons Subject to Subpoenas.(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney’s fee.(2) (A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.(3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it(i) Fails to allow reasonable time for compliance;(ii) Requires disclosure of privileged or other protected matter and no exception or waiver applies, or(iii) Subjects a person to undue burden.(B) If a subpoena(i) Requires disclosure of a trade secret or other confidential research, development, or commercial information, or(ii) Requires disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study made not at the request of any party, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.(d) Duties in Responding to Subpoena.(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.(e) Contempt.Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court in which the action is pending.(As amended September 5, 1995.)

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Washington Foreclosure Process Server Laws

By admin | April 9, 2010

RULE 4 PROCESS
(a) Summons–Issuance.
(1) The summons must be signed and dated by the plaintiff or his attorney, and directed to the defendant requiring him to defend the action and to serve a copy of his appearance or defense on the person whose name is signed on the summons.
(2) Unless a statute or rule provides for a different time requirement, the summons shall require the defendant to serve a copy of his defense within 20 days after the service of summons, exclusive of the day of service. If a statute or rule other than this rule provides for a different time to serve a defense, that time shall be stated in the summons.
(3) A notice of appearance, if made, shall be in writing, shall be signed by the defendant or his attorney, and shall be served upon the person whose name is signed on the summons. In condemnation cases a notice of appearance only shall be served on the person whose name is signed on the petition.
(4) No summons is necessary for a counterclaim or cross claim for any person who previously has been made a party. Counterclaims and cross claims against an existing party may be served as provided in rule 5.
(b) Summons.
(1) Contents. The summons for personal service shall contain:
(i) the title of the cause, specifying the name of the court in which the action is brought, the name of the county designated by the plaintiff as the place of trial, and the names of the parties to the action, plaintiff and defendant;
(ii) a direction to the defendant summoning him to serve a copy of his defense within a time stated in the summons;
(iii) a notice that, in case of failure so to do, judgment will be rendered against him by default. It shall be signed and dated by the plaintiff, or his attorney, with the addition of his post office address, at which the papers in the action may be served on him by mail.
(2) Form. Except in condemnation cases, and except as provided in rule 4.1, the summons for personal service in the state shall be substantially in the following form:
SUPERIOR COURT OF WASHINGTON
FOR (_______________) COUNTY
_______________, )
Plaintiff, ) No. ______
v. )
_______________, ) SUMMONS (20 days)
Defendant. )
TO THE DEFENDANT: A lawsuit has been started against you in the above entitled court by _______________, plaintiff. Plaintiff’s claim is stated in the written complaint, a copy of which is served upon you with this summons.
In order to defend against this lawsuit, you must respond to the complaint by stating your defense in writing, and by serving a copy upon the person signing this summons within 20 days after the service of this summons, excluding the day of service, or a default judgment may be entered against you without notice. A default judgment is one where plaintiff is entitled to what he asks for because you have not responded. If you serve a notice of appearance on the undersigned person, you are entitled to notice before a default judgment may be entered.
You may demand that the plaintiff file this lawsuit with the court. If you do so, the demand must be in writing and must be served upon the person signing this summons. Within 14 days after you serve the demand, the plaintiff must file this lawsuit with the court, or the service on you of this summons and complaint will be void.
If you wish to seek the advice of an attorney in this matter, you should do so promptly so that your written response, if any, may be served on time. This summons is issued pursuant to rule 4 of the Superior Court Civil Rules of the State of Washington.
(signed) ______________________________
______________________________
Print or Type Name
( ) Plaintiff ( ) Plaintiff’s Attorney
P. O. Address ________________________
Dated _____________________
Telephone Number _____________________

(c) By Whom Served. Service of summons and process, except when service is by publication, shall be by the sheriff of the county wherein the service is made, or by his deputy, or by any person over 18 years of age who is competent to be a witness in the action, other than a party. Subpoenas may be served as provided in rule 45.
(d) Service.
(1) Of Summons and Complaint. The summons and complaint shall be served together.
(2) Personal in State. Personal service of summons and other process shall be as provided in RCW 4.28.080-.090, 23B.05.040, 23B.15.100, 46.64.040, and 48.05.200 and .210, and other statutes which provide for personal service.
(3) By Publication. Service of summons and other process by publication shall be as provided in RCW 4.28.100 and .110, 13.34.080, and 26.33.310, and other statutes which provide for service by publication.
(4) Alternative to Service by Publication. In circumstances justifying service by publication, if the serving party files an affidavit stating facts from which the court determines that service by mail is just as likely to give actual notice as service by publication, the court may order that service be made by any person over 18 years of age, who is competent to be a witness, other than a party, by mailing copies of the summons and other process to the party to be served at his last known address or any other address determined by the court to be appropriate. Two copies shall be mailed, postage prepaid, one by ordinary first class mail and the other by a form of mail requiring a signed receipt showing when and to whom it was delivered. The envelopes must bear the return address of the sender. The summons shall contain the date it was deposited in the mail and shall require the defendant to appear and answer the complaint within 90 days from the date of mailing. Service under this subsection has the same jurisdictional effect as service by publication.
(5) Appearance. A voluntary appearance of a defendant does not preclude his right to challenge lack of jurisdiction over his person, insufficiency of process, or insufficiency of service of process pursuant to rule 12(b).
(e) Other Service.
(1) Generally. Whenever a statute or an order of court thereunder provides for service of a summons, or of a notice, or of an order in lieu of summons upon a party not an inhabitant of or not found within the state, service may be made under the circumstances and in the manner prescribed by the statute or order, or if there is no provision prescribing the manner of service, in a manner prescribed by this rule.
(2) Personal Service Out of State–Generally. Although rule 4 does not generally apply to personal service out of state, the prescribed form of summons may, with the modifications required by statute, be used for that purpose. See RCW 4.28.180.
(3) Personal Service Out of State–Acts Submitting Person to Jurisdiction of Courts. (Reserved. See RCW 4.28.185.)
(4) Nonresident Motorists. (Reserved. See RCW 46.64.040.)
(f) Territorial Limits of Effective Service. All process other than a subpoena may be served anywhere within the territorial limits of the state, and when a statute or these rules so provide beyond the territorial limits of the state. A subpoena may be served within the territorial limits as provided in rule 45 and RCW 5.56.010.
(g) Return of Service. Proof of service shall be as follows:
(1) If served by the sheriff or his deputy, the return of the sheriff or his deputy endorsed upon or attached to the summons;
(2) If served by any other person, his affidavit of service endorsed upon or attached to the summons; or
(3) If served by publication, the affidavit of the publisher, foreman, principal clerk, or business manager of the newspaper showing the same, together with a printed copy of the summons as published; or (4) If served as provided in subsection (d)(4), the affidavit of the serving party stating that copies of the summons and other process were sent by mail in accordance with the rule and directions by the court, and stating to whom, and when, the envelopes were mailed.
(4) If served as provided in subsection (d)(4), the affidavit of the serving party stating that copies of the summons and other process were sent by mail in accordance with the rule and directions by the court, and stating to whom, and when, the envelopes were mailed.
(5) The written acceptance or admission of the defendant, his agent or attorney;
(6) In case of personal service out of the state, the affidavit of the person making the service, sworn to before a notary public, with a seal attached, or before a clerk of a court of record.
(7) In case of service otherwise than by publication, the return, acceptance, admission, or affidavit must state the time, place, and manner of service. Failure to make proof of service does not affect the validity of the service.
(h) Amendment of Process. 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.
(i) Alternative Provisions for Service in a Foreign Country.
(1) Manner. When a statute or rule authorizes service upon a party not an inhabitant of or found within the state, and service is to be effected upon the party in a foreign country, it is also sufficient if service of the summons and complaint is made: (A) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or (B) as directed by the foreign authority in response to a letter rogatory or a letter of request; or (C) upon an individual, by delivery to him personally, and upon a corporation or partnership or association, by delivery to an officer, a managing or general agent; or (D) by any form of mail, requiring a signed receipt, to be addressed and mailed to the party to be served; or (E) pursuant to the means and terms of any applicable treaty or convention; or (F) by diplomatic or consular officers when authorized by the United States Department of State; or (G) as directed by order of the court. Service under (C) or (G) above may be made by any person who is not a party and is not less than 21 years of age or who is designated by order of the court or by the foreign court. The method for service of process in a foreign country must comply with applicable treaties, if any, and must be reasonably calculated, under all the circumstances, to give actual notice.
(2) Return. Proof of service may be made as prescribed by section (g) of this rule, or by the law of the foreign country, or by a method provided in any applicable treaty or convention, or by order of the court. When service is made pursuant to subsection (1)(D) of this section, proof of service shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court.
(j) Other Process. These rules do not exclude the use of other forms of process authorized by law.
[Amended effective January 1, 1972; July 1, 1977; September 1, 1978; July 1, 1980; September 1, 1985; September 1, 1989; September 1, 1993; September 1, 1994.]
RULE 4.1 PROCESS–DOMESTIC RELATIONS ACTIONS
(a) Summons–General. Actions authorized by RCW 26.09 shall be commenced by filing a petition or by service of a copy of a summons together with a copy of the petition on respondent as provided in rule 4. Upon written demand by the respondent, the petitioner shall pay the filing fee and file the summons and petition within 14 days after service of the demand or the service shall be void. No summons is necessary if both spouses sign a joint petition or if the respondent files a written joinder in the proceeding.
(b) Summons–Content, Form.
(1) Content. The summons shall contain the title of the action, the name of the county and the court in which the action is brought, the names of the parties, as petitioner and respondent, a direction to the respondent to serve a copy of his or her response on the person who has signed the summons, the time limit within which the copy of the response must be served, notice that failure to serve a copy of the response within the stated time may result in a judgment by default, the signature and address of the petitioner or petitioner’s attorney, and the date.
(2) Form. The summons for personal service in the state in an action for dissolution of marriage shall be substantially in the form below. The summons for personal service in the state in any other action authorized by RCW 26.09 should be adapted from this form. The summons for personal service out of state should be adapted from this form and must include the modifications required by statute. See RCW 4.28.180.
SUPERIOR COURT OF WASHINGTON
FOR (_______________) COUNTY
In the Matter of the )
Marriage of )
_______________, )
Petitioner, ) No. ______
and )
_______________, ) SUMMONS FOR DISSOLUTION
) OF MARRIAGE
Respondent. )
TO THE RESPONDENT: The petitioner has started an action in the above court requesting that your marriage be dissolved. Additional requests, if any, are stated in the petition, a copy of which is attached to this summons.
You must respond to this summons and petition by serving a copy of your written response on the person signing this summons. If you do not serve your written response within 20 days after the date this summons was served on you, exclusive of the day of service, the court may enter an order of default against you, and at the end of 90 days after service and filing, the court may, without further notice to you, enter a decree dissolving your marriage and approving or providing for other relief requested in the petition. If you serve a notice of appearance on the undersigned person, you are entitled to notice before an order of default or a decree may be entered.
You may demand that the petitioner file this action with the court. If you do so, the demand must be in writing and must be served upon the person signing this summons. Within 14 days after you serve the demand, the petitioner must file this action with the court, or the service on you of this summons and petition will be void.
If you wish to seek the advice of an attorney in this matter, you should do so promptly so that your written response, if any, may be served on time.
One method of serving a copy of your response on the petitioner is to send it by certified mail with return receipt requested.
This summons is issued pursuant to rule 4.1 of the Superior Court Civil Rules of the State of Washington.
Dated________________________
(signed)______________________
_____________________________
Print or Type Name
SERVE A COPY OF
YOUR RESPONSE ON:
( ) Petitioner
( ) Petitioner’s Attorney
______________________________
(Address)
___________________, WA ______
(city) (zip)
[Adopted effective September 1, 1978; amended effective July 1, 1980; September 1, 1989.]

FORMS
1. Summons by Publication
2. Request for Order to Serve by Mail
3. Order Allowing Service by Mail
4. Summons by Mail
5. Summons for Modification of Child Support
6. Summons (Modification of Parenting Plan)

1. Summons by Publication

SUPERIOR COURT OF WASHINGTON
COUNTY OF
NO.
In re the Marriage of:
SUMMONS BY PUBLICATION

Petitioner
and

Respondent.
TO THE RESPONDENT:
1. The petitioner has started an action in the above court requesting:
[ ] that your marriage be dissolved.
[ ] a legal separation.
[ ] that your marriage be declared invalid.
2. The petition also requests that the Court grant the following relief:
[ ] Provide reasonable maintenance for the [ ] husband [ ] wife.
[ ] Approve a parenting plan for the dependent children.
[ ] Determine support for the dependent children pursuant to the
Washington State Support Schedule.
[ ] Approve a separation agreement;
[ ] Dispose of property and liabilities.
[ ] Change name of wife to: ___________________________
[ ] Change name of husband to: _______________________
[ ] Order payment of court costs and reasonable fees.
[ ] Enter a permanent restraining order.
[ ] Order payment of day care expenses for the children.
[ ] Award the tax exemptions for the dependent children as follows:
[ ] Order payment of attorney’s fees, other professional fees and costs.
[ ] Other:
3. You must respond to this summons by serving a copy of your written response on the person signing this summons and by filing the original with the clerk of the court. If you do not serve your written response within 60 days after the date of the first publication of this summons (60 days after the ________ day of __________, 20__), the court may enter an order of default against you, and at the end of 90 days after service and filing, the court may, without further notice to you, enter a decree and approve or provide for other relief requested in this summons. If you serve a notice of appearance on the undersigned person, you are entitled to notice before an order of default or a decree may be entered.
4. Your written response to the summons must be on forms approved by the Office of the Administrator for the Courts. These forms may be obtained by contacting the clerk of the court or the Office of the Administrator for the Courts at:
Office of the Administrator for the Courts
Temple of Justice, AV-01
Olympia, Washington 98504
(206) 357-2129
5. If this action has not been filed with the court, you may demand that the petitioner file this action with the court. If you do so, the demand must be in writing and must be served upon the person publishing this summons. Within 14 days after you serve the demand, the petitioner must file this action with the court, or the service on you of this summons will be void.
6. If you wish to seek the advice of an attorney in this matter, you should do so promptly so that your written response, if any, may be served on time.
7. One method of serving a copy of your response on the petitioner is to send it by certified mail with return receipt requested.
8. Other:
This summons is issued pursuant to RCW 4.28.100 and Superior Court Civil Rule 4.1 of the State of Washington.
Dated:______________ __________________________
Signature of Lawyer or
Petitioner (if petitioner
has no lawyer)
__________________________
Print or Type Name
(include Washington State
Bar Number, if applicable)
FILE ORIGINAL WITH THE CLERK SERVE A COPY OF YOUR
OF THE COURT AT: RESPONSE ON:
[ ] Petitioner
[ ] Petitioner’s Lawyer
__________________________ __________________
(Name of Court) (Name)
__________________________ __________________
(Address) (Address)
__________________________ __________________
Phone:____________________ ___________________

2. Request for Order to Serve by Mail

SUPERIOR COURT OF WASHINGTON
COUNTY OF
NO.
In re the Marriage of:
REQUEST FOR ORDER TO
Petitioner SERVE SUMMONS AND
and PETITION BY MAIL
Respondent.
1. I request that the court issue an order allowing the summons and petition in this matter to be served
on the respondent by mail.
2. I believe that service should be made by mail because:
[ ] the respondent is not a resident of this state.
[ ] the respondent cannot be found in this state.
[ ] I am indigent and cannot afford service by publication.
3. I have not been able to locate or serve the respondent, even through the respondent’s employer,
friends or family.
4. Service by mail is just as likely to provide actual notice as service by publication.
5. The mailings should be sent to the following address:
6. This address is:
[ ] The last known address of the respondent.
[ ] The respondent’s parent or nearest living relative.
[ ] Other:
Dated:______________ __________________________
Signature of Lawyer or
Petitioner (if petitioner
has no lawyer)
__________________________
Print or Type Name
(include Washington State
Bar Number, if applicable)
I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.
Signed at ______________________________ on _______
(City and State) (Date)
___________________________
Signature
___________________________
Print or Type Name

3. Order Allowing Service by Mail

SUPERIOR COURT OF WASHINGTON
COUNTY OF
NO.
In re the Marriage of:
ORDER ALLOWING SERVICE
Petitioner OF SUMMONS AND PETITION
and BY MAIL
Respondent.
I. BASIS
The court has considered an affidavit requesting an order allowing the summons and petition in this matter to be served on the respondent by mail.
II. FINDINGS
Based on the case record to date and the representations made in the affidavit, the court FINDS that the summons and petition in this matter should be served on the respondent by mail in accordance with CR 4(d)(4).
III. ORDER
IT IS ORDERED:
3.1 The summons and petition in this matter be served on the respondent by mail by a person 18 years
of age or over and competent to be a witness but not the petitioner.
3.2 Two (2) copies shall be mailed postage prepaid, one by ordinary first class mail, and the other by
certified mail, return receipt requested, showing when, and to whom, delivered, each showing a
return address for the sender or an address through which correspondence may be directed to the
sender.
3.3 The mailings shall be sent to the following address:
3.4 This address is:
[ ] The last known address of the respondent.
[ ] The respondent’s parent or nearest living relative.
[ ] Other:
3.5 A summons and petition mailed to the respondent care of parents or other individuals shall be
addressed directly to the parent or other individual with a note enclosed asking that the summons
and petition be delivered to the respondent.
3.6 The person mailing the summons and petition shall complete a Return of Service form approved by
the Office of the Administrator for the Courts.
Dated:_____________ _________________________
Judge/Commissioner
Presented by:
_____________________________________________
Signature and Washington State Bar Number, if applicable

4. Summons by Mail

SUPERIOR COURT OF WASHINGTON
COUNTY OF
NO.
In re the Marriage of:
SUMMONS BY MAIL
Petitioner
and
Respondent.
TO THE RESPONDENT:
1. The petitioner has started an action in the above court requesting:
[ ] that your marriage be dissolved.
[ ] a legal separation.
[ ] that your marriage be declared invalid.
Additional requests, if any, are stated in the petition, a copy of which is attached.
2. You must respond to this summons by serving a copy of your written response on the person signing this summons and by filing the original with the clerk of the court. If you do not serve your written response within 90 days from the date of mailing of this summons (90 days after the _______ day of ________, 20___), the court may enter an order of default against you, and at the end of 90 days after the service and filing, the court may, without further notice to you, enter a decree and approve or provide for other relief requested in this summons. If you serve a notice of appearance on the undersigned person, you are entitled to notice before an order of default or a decree may be entered.
3. Your written response to the summons must be on forms approved by the Office of the Administrator for the Courts. These forms may be obtained by contacting the clerk of the court or the Office of the Administrator for the Courts at:
Office of the Administrator for the Courts
Temple of Justice, AV-01
Olympia, Washington 98504
(206) 357-2129
4. If this action has not been filed with the court, you may demand that the petitioner file this action with the court. If you do so, the demand must be in writing and must be served upon the person publishing this summons. Within 14 days after you serve the demand, the petitioner must file this action with the court, or the service on you of this summons will be void.
5. If you wish to seek the advice of an attorney in this matter, you should do so promptly so that your written response, if any, may be served on time.
6. One method of serving a copy of your response on the petitioner is to send it by certified mail with return receipt requested.
This summons is issued pursuant to RCW 4.28.100 and Superior Court Civil Rule 4.1 of the State of Washington.
Dated:______________ __________________________
Signature of Lawyer or
Petitioner (if petitioner
has no lawyer)
__________________________
Print or Type Name
(include Washington State
Bar Number, if applicable)
FILE ORIGINAL WITH THE CLERK SERVE A COPY OF YOUR
OF THE COURT AT: RESPONSE ON:
[ ] Petitioner
[ ] Petitioner’s Lawyer
__________________________ __________________
(Name of Court) (Name)
__________________________ __________________
(Address) (Address)
__________________________ __________________
Phone:____________________ ___________________
Date Mailed: _______________

5. Summons for Modification of Child Support

SUPERIOR COURT OF WASHINGTON
COUNTY OF
NO.
In re:
SUMMONS FOR
Petitioner MODIFICATION OF
and CHILD SUPPORT
Respondent.
TO:
1. An action has been started against you in the above court requesting that the court modify the child support provisions of your support order. The requests are stated in the petition, a copy of which is served upon you with this summons.
2. You must respond to this summons and petition by filing a written answer with the clerk of the court and by serving a copy of your answer on the person signing this summons. You must also complete the Washington Child Support Schedule Worksheets served with this summons. The completed worksheets must be filed and served with your written answer.
3. Your written answer to the summons and petition must be on forms approved by the Office of the Administrator for the Courts. These forms may be obtained by contacting the clerk of the court, the Office of Support Enforcement, or the Office of the Administrator for the Courts at:
Office of the Administrator for the Courts
Temple of Justice, AV-01
Olympia, Washington 98504
(206) 357-2129
4. If you do not file and serve your written answer within 20 days (60 days if you are served outside of the State of Washington) after the date this summons was served on you, exclusive of the date of service, the court may, without further notice to you, enter a default judgment against you ordering the relief requested in the petition. If you serve a notice of appearance on the undersigned person, you are entitled to notice before an order of default may be entered.
5. You may demand that the other party file this action with the court. If you do so, the demand must be in writing and must be served upon the person signing this summons. Within 14 days after you serve the demand, the other party must file this action with the court, or the service of this summons and petition will be void.
6. If you wish to seek the advice of an attorney in this matter, you should do so promptly so that your written answer, if any, may be served on time. Copies of these papers have not been served upon your attorney.
7. One method of serving your written answer and completed worksheets is to send them by certified mail with return receipt requested. This summons is issued pursuant to Superior Court Civil Rule 4.1 of the State of Washington.
Dated:______________ __________________________
Signature of Lawyer or
Petitioner (if petitioner
has no lawyer)
__________________________
Print or Type Name
(include Washington State
Bar Number, if applicable)
FILE ORIGINAL WITH THE CLERK SERVE A COPY OF YOUR
OF THE COURT AT: RESPONSE ON:
[ ] Petitioner
[ ] Petitioner’s Lawyer
__________________________ __________________
(Name of Court) (Name)
__________________________ __________________
(Address) (Address)
__________________________ __________________
Phone:____________________ ___________________

6. Summons
(Modification of Parenting Plan)

SUPERIOR COURT OF WASHINGTON
COUNTY OF
NO.
In re:
SUMMONS (MODIFICATION
Petitioner OF CUSTODY DECREE OR
and PARENTING PLAN)
Respondent.
TO:
1. An action has been started in the above court requesting that a custody decree or parenting plan be modified. Additional requests, if any, are stated in the petition, a copy of which is attached to this notice.
2. You may file an opposing declaration. The court shall deny the motion unless it finds that adequate cause for hearing the petition is established by the declaration, in which case it shall set a date for hearing on an order to show cause why the requested order or modification should not be granted.
[ ] Temporary residential placement or custody is not being sought.
[ ] Temporary residential placement or custody is being sought. If adequate cause is found, the
court may proceed immediately to hear the motion for temporary placement/custody, or may
continue the matter to a later time.
3. You must respond to this notice and petition by serving a copy of your written response on the person signing this summons and by filing the original with the clerk of the court. If you do not serve your written response within 20 days (or 60 days if you are served outside of the State of Washington) after the date this summons was served on you, exclusive of the day of service, the court may enter an order of default against you, and after service and filing, the court may, without further notice to you, enter a decree to modify the custody decree or parenting plan and providing for other relief requested in the petition. If you serve a notice of appearance on the undersigned person, you are entitled to notice before an order of default or a decree may be entered.
4. Your written response to the petition (Form WPF DR 07.0200) must be on forms approved by the Office of the Administrator for the Courts. These forms may be obtained by contacting the clerk of the court, or by contacting the Office of the Administrator for the Courts at:
Office of the Administrator for the Courts
Temple of Justice, AV-01
Olympia, Washington 98504
(206) 357-2129
5. If this action has not been filed with the court, you may demand that the petitioner file this action with the court. If you do so, the demand must be in writing and must be served upon the person signing this notice. Within 14 days after you serve the demand, the petitioner must file this action with the court, or the service on you of that notice and motion will be void.
6. If you wish to seek the advice of an attorney in this matter, you should do so promptly so that your written response, if any, may be served on time.
7. One method of serving a copy of your response on the petitioner is to send it by certified mail with return receipt requested. This summons is issued pursuant to Superior Court Civil Rule 4.1 of the State of Washington.
Dated:______________ __________________________
Signature of Lawyer or
Petitioner (if petitioner
has no lawyer)
__________________________
Print or Type Name
(include Washington State
Bar Number, if applicable)
FILE ORIGINAL WITH THE CLERK SERVE A COPY OF YOUR
OF THE COURT AT: RESPONSE ON:
[ ] Petitioner
[ ] Petitioner’s Lawyer
__________________________ __________________
(Name of Court) (Name)
__________________________ __________________
(Address) (Address)
__________________________ __________________
Phone:____________________ ___________________

Revised Code of Washington
RCW 4.28.080 Summons, how served. Service made in the modes provided in this section shall be taken and held to be personal service. The summons shall be served by delivering a copy thereof, as follows:
(1) If the action be against any county in this state, to the county auditor or, during normal office hours, to the deputy auditor, or in the case of a charter county, summons may be served upon the agent, if any, designated by the legislative authority.
(2) If against any town or incorporated city in the state, to the mayor, city manager, or, during normal office hours, to the mayor’s or city manager’s designated agent or the city clerk thereof.
(3) If against a school or fire district, to the superintendent or commissioner thereof or by leaving the same in his or her office with an assistant superintendent, deputy commissioner, or business manager during normal business hours.
(4) If against a railroad corporation, to any station, freight, ticket or other agent thereof within this state.
(5) If against a corporation owning or operating sleeping cars, or hotel cars, to any person having charge of any of its cars or any agent found within the state.
(6) If against a domestic insurance company, to any agent authorized by such company to solicit insurance within this state.
(7) If against a foreign or alien insurance company, as provided in chapter 48.05 RCW.
(8) If against a company or corporation doing any express business, to any agent authorized by said company or corporation to receive and deliver express matters and collect pay therefor within this state.
(9) If the suit be against a company or corporation other than those designated in the preceding subdivisions of this section, to the president or other head of the company or corporation, the registered agent, secretary, cashier or managing agent thereof or to the secretary, stenographer or office assistant of the president or other head of the company or corporation, registered agent, secretary, cashier or managing agent.
(10) If the suit be against a foreign corporation or nonresident joint stock company, partnership or association doing business within this state, to any agent, cashier or secretary thereof.
(11) If against a minor under the age of fourteen years, to such minor personally, and also to his or her father, mother, guardian, or if there be none within this state, then to any person having the care or control of such minor, or with whom he or she resides, or in whose service he or she is employed, if such there be.
(12) If against any person for whom a guardian has been appointed for any cause, then to such guardian.
(13) If against a foreign or alien steamship company or steamship charterer, to any agent authorized by such company or charterer to solicit cargo or passengers for transportation to or from ports in the state of Washington.
(14) If against a self-insurance program regulated by chapter 48.62 RCW, as provided in chapter 48.62 RCW.
(15) In all other cases, to the defendant personally, or by leaving a copy of the summons at the house of his or her usual abode with some person of suitable age and discretion then resident therein.
(16) In lieu of service under subsection (15) of this section, where the person cannot with reasonable diligence be served as described, the summons may be served as provided in this subsection, and shall be deemed complete on the tenth day after the required mailing: By leaving a copy at his or her usual mailing address with a person of suitable age and discretion who is a resident, proprietor, or agent thereof, and by thereafter mailing a copy by first class mail, postage prepaid, to the person to be served at his or her usual mailing address. For the purposes of this subsection, “usual mailing address” shall not include a United States postal service post office box or the person’s place of employment.
[1997 c 380 Â§ 1; 1996 c 223 Â§ 1; 1991 sp.s. c 30 Â§ 28; 1987 c 361 Â§ 1; 1977 ex.s. c 120 Â§ 1; 1967 c 11 Â§ 1; 1957 c 202 Â§ 1; 1893 c 127 Â§ 7; RRS Â§ 226, part. FORMER PART OF SECTION: 1897 c 97 Â§ 1 now codified in RCW 4.28.081.]
NOTES:
Rules of court: Service of process – CR 4(d), (e).
Effective date, implementation, application – Severability – 1991 sp.s. c 30: See RCW 48.62.900 and 48.62.901.
Severability – 1977 ex.s. c 120: “If any provision of this 1977 amendatory act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected.” [1977 ex.s. c 120 Â§ 3.]
Service of process on:
foreign corporation: RCW 23B.15.100 and 23B.15.310.
foreign savings and loan association: RCW 33.32.050.
nonadmitted foreign corporation: RCW 23B.18.040.
nonresident motor vehicle operator: RCW 46.64.040.
Case Note:
Failing to come to door to receive service of process does not constitute evasion of service; those who are to be served with process are under no obligation to arrange time and place for service or to otherwise accommodate process server. Weiss v. Glemp, 127 Wash.2d 726, 903 P.2d 455 (1995).
RCW 4.28.180 Personal service out of state. Personal service of summons or other process may be made upon any party outside the state. If upon a citizen or resident of this state or upon a person who has submitted to the jurisdiction of the courts of this state, it shall have the force and effect of personal service within this state; otherwise it shall have the force and effect of service by publication. The summons upon the party out of the state shall contain the same and be served in like manner as personal summons within the state, except it shall require the party to appear and answer within sixty days after such personal service out of the state.
[1959 c 131 Â§ 1; 1895 c 86 Â§ 3; 1893 c 127 Â§ 11; RRS Â§ 234.]
NOTES:
Rules of court: Cf. CR 4(e), CR 12(a), CR 82(a).
Service of process on nonresident motor vehicle operator: RCW 46.64.040.
RULE 45 SUBPOENA
(a) For Attendance of Witnesses. The subpoena shall be issued as follows:
(1) Form. To require attendance before a court of record or at the trial of an issue therein, such subpoena may be issued in the name of the State of Washington and be under the seal of the court before which the attendance is required or in which the issue is pending: Provided, That such subpoena may be issued with like effect by the attorney of record of the party to the action in whose behalf the witness is required to appear, and the form of such subpoena in each case may be the same as when issued by the court except that it shall only be subscribed by the signature of such attorney.
(2) Issuance for Trial. To require attendance before a court of record or at the trial of an issue of fact, the subpoena may be issued by the clerk in response to a praecipe or by an attorney of record.
(3) Issuance for Deposition. To require attendance out of such court before a judge, justice of the peace, commissioner, referee or other officer authorized to administer oaths or to take testimony in any matter under the laws of this state, it shall be issued by an attorney of record or by such judge, justice of the peace, commissioner, referee or other officer before whom the attendance is required.
(b) For Production of Documentary Evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.
(c) Service. A subpoena may be served by any suitable person over 18 years of age, by exhibiting and reading it to the witness, or by giving him a copy thereof, or by leaving such copy at the place of his abode. When service is made by any other person than an officer authorized to serve process, proof of service shall be made by affidavit.
(d) Subpoena for Taking Depositions; Place of Examination.
(1) Authorization. Proof of service of a notice to take a deposition as provided in rules 30 (b) and 31 (a) constitutes a sufficient authorization for the issuance by the attorney of record or the officer taking the deposition of subpoenas for the persons named or described therein. The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain matters within the scope of the examination permitted by rule 26 (b), but in that event the subpoena will be subject to the provisions of rule 26 (c) and section (b) of this rule. The person to whom the subpoena is directed may, within 10 days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than 10 days after service, serve upon the attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursuant to an order of the court from which the subpoena was issued. The party serving the subpoena may, if objection has been made, move upon notice to the deponent for an order at any time before or during the taking of the deposition.
(2) Place of Examination. A resident of the state may be required to attend an examination only in the county wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of the court. A nonresident of the state may be required to attend only in the county wherein he is served with a subpoena, or within 40 miles from the place of service or at such other convenient place as is fixed by an order of the court.
(3) Foreign Depositions for Local Actions. When the place of examination is in another state, territory, or country, the party desiring to take the deposition may secure the issuance of a subpoena or equivalent process in accordance with the laws of such state, territory or country to require the deponent to attend the examination.
(4) Local Depositions for Foreign Actions. When any officer or person is authorized to take depositions in this state by the law of another state, territory or country, with or without a commission, a subpoena to require attendance before such officer or person may be issued by any judge or justice of the peace of this state for attendance at any places within his jurisdiction.
(e) Subpoena for Hearing or Trial. [Reserved. See RCW 5.56.010.]
(f) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued.
(g) When Excused. A witness subpoenaed to attend in a civil case is dismissed and excused from further attendance as soon as he has given his testimony in chief and has been cross-examined thereon, unless either party moves in open court that the witness remain in attendance and the court so orders; and witness fees will not be allowed any witness after the day on which his testimony is given, except when the witness has in open court been required to remain in further attendance, and when so required the clerk shall note that fact in the minutes.
[Amended effective July 1, 1972; September 1, 1983; September 1, 1993.]

FORMS

Subpoena – For Attendance of Witness

[Caption]
To: ___1______.
In the name of the State of Washington you are hereby required to appear before ___2___, a judge of the above court, in and for the County of ___3___, State of Washington, on the ___4___ day of ___5___, 19___6___, at ___7___ o’clock ___8___.m., at the courtroom of said court, to give evidence in a certain cause, then and there to be tried, between ___9___, plaintiff, and ___10___, defendant, on the part of ___11___.
Dated ___12___, 20___13___.
___14______
Attorney for ___15______

Affidavit of Service of Subpoena

[Caption]
State of Washington, ) ss.
County of ___1______, )
___2___, being first duly sworn, on oath, says and deposes:
That on the ___3___ day of ___4___, 20___5___, he served the attached subpoena by giving a copy thereof to the person named therein.
___6______
[Signature and Address]
[Jurat]

RCW 18.180.010 Registration – Exceptions.
(1) A person who serves legal process for a fee in the state of Washington shall register as a process server with the auditor of the county in which the process server resides or operates his or her principal place of business.
(2) The requirement to register under subsection (1) of this section does not apply to any of the following persons:
(a) A sheriff, deputy sheriff, marshal, constable, or government employee who is acting in the course of employment;
(b) An attorney or the attorney’s employees, who are not serving process on a fee basis;
(c) A person who is court appointed to serve the court’s process;
(d) An employee of a person who is registered under this section;
(e) A person who does not receive a fee or wage for serving process.
[1992 c 125 Â§ 1.]
RCW 18.180.020 Registration renewal. A process server required to register under RCW 18.180.010 must renew the registration within one year of the date of the initial registration or when the registrant changes his or her name, the name of his or her business, business address, or business telephone number, whichever occurs sooner. If the renewal is required because of a change in the information identifying the process server, the process server must renew the registration within ten days of the date the identifying information changes. The process server shall pay the registration fee upon renewal.
[1992 c 125 Â§ 3.]
RCW 18.180.030 Identification of process server on proof of service.
(1) A process server required to register under RCW 18.180.010 shall indicate the process server’s registration number and the process server’s county of registration on any proof of service the process server signs.
(2) Employees of a process server required to register under RCW 18.180.010 shall indicate the employer’s registration number and the employer’s county of registration on any proof of service the registrant’s employee signs.
[1992 c 125 Â§ 4.]
RCW 18.180.040 Collection of costs of service – Application.
(1) Except as provided in subsection (2) of this section, any person who is otherwise entitled to collect the costs of service of process shall not be entitled to collect those costs if the person does not use a process server who under this chapter either is required to register or is exempt from the registration requirement.
(2) The person may collect the costs of the service of process if the process server registers within forty-five days after serving the process.
(2) This section shall apply to all process served on or after August 1, 1992.
[1992 c 125 Â§ 5.]
RCW 18.180.050 Registration suspension – Nonpayment or default on educational loan or scholarship. The auditor of the county shall suspend the registration of any person who has been certified by a lending agency and reported to the auditor of the county for nonpayment or default on a federally or state-guaranteed educational loan or service-conditional scholarship. Prior to the suspension, the agency must provide the person an opportunity for a brief adjudicative proceeding under RCW 34.05.485 through 34.05.494 and issue a finding of nonpayment or default on a federally or state-guaranteed educational loan or service- conditional scholarship. The person’s registration shall not be reissued until the person provides the auditor of the county a written release issued by the lending agency stating that the person is making payments on the loan in accordance with a repayment agreement approved by the lending agency. If the person has continued to meet all other requirements for registration during the suspension, reinstatement shall be automatic upon receipt of the notice and payment of any reinstatement fee the auditor of the county may impose.
[1996 c 293 Â§ 25.]
NOTES: Severability – 1996 c 293: See note following RCW 18.04.420.

Topics: Process Service | No Comments »

Montana Foreclosure Process Server Laws

By admin | April 9, 2010

RULE 4. PERSONS SUBJECT TO JURISDICTION – PROCESS – SERVICE

A. Definition of Person. As used in this rule, the word “person,” whether or not a citizen or resident of this state and whether or not organized under the laws of this state, includes an individual whether operating in the individual’s own name or under a trade name; an individual’s agent or personal representative; a corporation; a limited liability company; a business trust; an estate; a trust; a partnership; an unincorporated association; and any two or more persons having a joint or common interest or any other legal or commercial entity.

B. Jurisdiction of Persons.

(1) Subject to Jurisdiction. All persons found within the state of Montana are subject to the jurisdiction of the courts of this state. In addition, any person is subject to the jurisdiction of the courts of this state as to any claim for relief arising from the doing personally, through an employee, or through an agent, of any of the following acts:

(a) the transaction of any business within this state;

(b) the commission of an act which results in accrual within this state of a court action;

(d) contracting to insure any person, property or risk located within this state at the time of contracting;

(e) entering into a contract for services to be rendered or for materials to be furnished in this state by such person; or

(f) acting as director, manager, trustee, or other officer of any corporation organized under the laws of, or having its principal place of business within this state, or as personal representative of any estate within this state

(2) Acquisition of Jurisdiction. Jurisdiction may be acquired by our courts over any person through service of process as herein provided; or by the voluntary appearance in an action by any person either personally, or through an attorney, or through any other authorized officer, agent or employee.

C. Process.

(1) Summons – Issuance. Upon or after filing the complaint the plaintiff or, if the plaintiff is represented by an attorney, the plaintiff’s attorney shall present a summons to the clerk for issuance. If the summons is in proper form, the clerk shall issue it and deliver it to the plaintiff or to the plaintiff’s attorney who shall thereafter deliver it for service upon the defendant in the manner prescribed by these rules. Issuance and service of the summons shall be accomplished within the times prescribed by Rule E of these rules. Upon request, the clerk shall issue separate or additional summons against any parties designated in the original action, or against any additional parties who may be brought into the action, which separate or additional summons shall also be served in the manner and within the times prescribed by these rules. The party requesting issuance of the summons shall bear the burden of having it properly issued and served.

(2) Summons – Form. The summons shall be signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, if any, otherwise the plaintiff’s address, and the time within which these rules require the defendant to appear and defend, and shall notify the defendant that in case of the defendant’s failure to do so judgment by default will be rendered against the defendant for the relief demanded in the complaint. In an action brought to quiet title to real estate, there shall be added to the foregoing, the following: “This action is brought for the purpose of quieting title to land situated in . . . County, Montana, and described as follows: (Here insert descriptions of land.).” For exceptions to this form of summons see 4D(4) “Other service,” set forth hereinafter.

D. Service.

(1) By whom served.

(a) Service of all process shall be made in the county where the party to be served is found by a sheriff, deputy sheriff, constable, or any other person over the age of 18 not a party to the action.

(b)(i) A summons and complaint may also be served upon a defendant who is an individual other than a minor or an incompetent person or upon a domestic or foreign corporation or partnership or other unincorporated association by mailing a copy of the summons and complaint (by first class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to form 18-A and a return envelope, postage prepaid, addressed to the sender. If no acknowledgment of service under this subdivision of this rule is received by the sender within 20 days after the date of mailing the summons and complaint, service of such summons and complaint shall be made by one of the persons mentioned in Rule 4D(1)(a) in the manner prescribed by Rule 4D(2) and Rule 4D(3).

(ii) Unless good cause is shown for not doing so, the court shall order the payment of costs of the personal service by the person served if such person does not complete and return within 20 days after mailing, the notice and acknowledgment of receipt of summons.

(iii) The notice and acknowledgment of receipt of summons and complaint shall be signed and dated. Service of summons and complaint will be deemed complete on the date of signature of the defendant as shown on the acknowledgment.

(2) Personal service within the state. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:

(a) Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to the individual personally or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process, provided that if the agent is one designated by statute to receive service, such further notice as the statute requires shall be given.

(b) Upon a minor over the age of 14 years, by delivering a copy of the summons and complaint to the minor personally, and by leaving a copy thereof at the minor’s dwelling house or usual place of abode with some adult of suitable discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.

(c) Upon a minor under the age of 14 years, by delivering a copy of the summons and complaint to the minor’s guardian, if the minor has one within the state, and if not, then to the minor’s father or mother or other person or agency having the minor’s care or control, or with whom the minor resides, or if service cannot be made upon any of them, then as provided by order of the court.

(d) Upon a person who has been adjudged of unsound mind by a court of this state, or for whom a guardian has been appointed in this state by reason of incompetency, by delivering a copy of the summons and complaint to the person’s guardian, if there be a guardian residing in this state appointed and acting under the laws of this state. If there be no such guardian, the court shall appoint a guardian ad litem for the incompetent person, with or without personal service on the incompetent, as the court may direct. When a party is alleged to be of unsound mind, but has not been so adjudged by a court of this state, such party may be brought into court by service of process personally upon that party. The court may also stay any action pending against a person on learning that such person is of unsound mind.

(e) Upon a domestic corporation, partnership or other unincorporated association, or upon a foreign corporation, partnership or other unincorporated association, established by the laws of any other state or country, and having a place of business within this state or doing business herein either permanently or temporarily, or which was doing business herein either permanently, or temporarily at the time the claim for relief accrued: (i) by delivering a copy of the summons and complaint to an officer, director, superintendent or managing or general agent, or partner, or associate for such corporation, partnership, or association; or by leaving such copies at the office or place of business of the corporation, partnership, or association within the state with the person in charge of such office; or (ii) by delivering a copy of the summons and complaint to the registered agent of said corporation named on the records of the secretary of state, or to any other agent or attorney in fact authorized by appointment or by statute to receive or accept service on behalf of the corporation, partnership, or association, provided that if the agent or attorney in fact is one designated by statute to receive service, such further notice as the statute requires shall also be given; or (iii) if the sheriff shall make return that no person upon whom service may be made can be found in the county, then service may be made by leaving a copy of the summons and complaint at any office of the corporation, partnership, or unincorporated association within this state with the person in charge of such office; or (iv) if the suit is against a corporation whose charter or right to do business in the state has expired or been forfeited, by delivering a copy thereof to any one of the persons who have become trustees for the corporation and its stockholders or members.

(f) When a claim for relief is pending in any court of this state against a corporation organized under the laws of this state, or against a corporation organized under the laws of any other state or country, that has filed a copy of its charter in the office of the secretary of state of Montana and qualified to do business in Montana; or against a corporation organized under the laws of any other state or country which is subject to the jurisdiction of the courts of this state under the provisions of Rule 4B above, even though such corporation has never qualified to do business in Montana; or against a national banking corporation which, through insolvency or lapse of charter, has ceased to do business in Montana; and none of the persons designated in D(2)(e) immediately above can with the exercise of reasonable diligence be found within Montana, the party causing summons to be issued shall exercise reasonable diligence to ascertain the last known address of any such person. Upon the filing with the clerk of court in which the claim for relief is pending of an affidavit reciting that none of the persons designated in D(2)(e) can after due diligence be found within Montana upon whom service of process can be made, and reciting the last known address of any such person, or reciting that after the exercise of reasonable diligence no such address for any such person could be found, and there has also been deposited with the said clerk the sum of $5 to be paid to the secretary of state as a fee for each of said defendants for whom the secretary of state is to receive said service, then the clerk of court shall issue an order directing process to be served upon the secretary of state of the state of Montana or, in the secretary of state’s absence from the secretary of state’s office, upon the deputy secretary of state of the state of Montana. Such affidavit shall be sufficient evidence of the diligence of inquiry made by affiant, if the affidavit recites that diligent inquiry was made, and the affidavit need not detail the facts constituting such inquiry. Whenever service is also to be made through publication as provided in 4D(5), or upon other persons as provided in 4D(6), the affidavit herein required may be combined in the same instrument with the affidavit required under 4D(5)(c) and 4D(6). The said clerk of court shall then mail to the secretary of state the original summons, one copy of the summons and one copy of the affidavit for the files of the secretary of state, one copy of the summons attached to a copy of the complaint for each of the defendants to be served by service upon the secretary of state, and the fee for service, to the office of the secretary of state. The secretary of state shall mail copy of the summons and complaint by certified or registered mail with a return receipt requested to the last known address of any of the persons designated in D(2)(e) above, if known, or, if none such is known and it is a corporation not organized in Montana, to the secretary of state of the state in which such corporation was originally incorporated, if known; and the secretary of state shall make a return as hereinafter provided under Rule 4D(6). When service is so made, it shall be deemed personal service on such corporation, and the said secretary of state, or a deputy when the secretary is absent from the secretary of state’s office, is hereby appointed agent of such corporation for service of process in cases herein before mentioned. In any action where due diligence has been exercised to locate and serve any of the persons designated in D(2)(e) above, service shall be deemed complete upon said corporation regardless of the receipt of any return receipt or advice of refusal of the addressee to receive the process mailed, as is hereinafter required by 4D(6); provided, however, that except in those actions where any of the persons designated in D(2)(e) above have been located and served personally as herein above provided, then service by publication shall also be made as provided hereafter in 4D(5)(d) and 4D(5)(h); the first publication must be made within 60 days from the date the original summons is mailed to the secretary of state as herein provided, and if said first publication is not so made, the action shall be deemed dismissed as to any such party intended to be served by such publication; and service shall be complete upon the date of the last publication of summons.

When service of process is made as herein provided, and there is no appearance thereafter made by any attorney for such corporation, service of all other notices required by law to be served in such action may be served upon the secretary of state.

(g) Upon a city, village, town, school district, county, or public agency or board of any such public bodies, by delivering a copy of the summons and complaint to any commissioner, trustee, board member, mayor or head of the legislative department thereof.

(h) Upon the state, or any state board or state agency, by delivering a copy of the summons and complaint to the attorney general and to any other party which may be prescribed by statute.

(i) Upon an estate by delivering a copy of the summons and complaint to the personal representative thereof; upon a trust by delivering a copy of the summons and complaint to any trustee thereof.

(3) Personal service outside the state. Where service upon any person cannot, with due diligence, be made personally within this state, service of summons and complaint may be made by service outside this state in the manner provided for service within this state, with the same force and effect as though service had been made within this state. Where service by publication is permitted as hereinafter provided, personal service of a summons and complaint upon the defendant out of the state shall be equivalent to and shall dispense with the procedures and the publication and mailing provided for hereafter in 4(5)(c), 4(5)(d) and 4(5)(e) of this rule.

(4) Other service. All process in any form of action shall be served in the manner specified in this rule with the exception that whenever a statute of this state or an order of the court or a citation by the court made pursuant thereto provides for the service of a notice or of an order or of a citation in lieu of summons upon any person, service shall be made under the circumstances and in the manner prescribed by the statute or order or citation; and with the further exception that all persons are required to comply with the provisions hereafter prescribed in D(5)(h), and with the provisions of 33-1-603, 33-1-613, 33-1-614, 33-2-314, 33-2-315, 70-28-207, 70-28-208, 70-28-209, and 70-28-212, Montana Code Annotated, when the action pertains to the provisions of such sections.

(5) Service by publication–when permitted–effect–manner–proof.

(a) When permitted. A defendant, whether known or unknown, who has not been served under the foregoing subsections of this rule can be served by publication in the following situations only:

(i) When the subject of the action is real or personal property in this state and the defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partially in excluding the defendant from any interest therein. This subsection shall apply whether any such defendant is known or unknown.

(ii) When the action is to foreclose, redeem from or satisfy a mortgage, claim or lien upon real or personal property within this state.

(iii) When the action is for dissolution or for a declaration of invalidity of a marriage of a resident of this state or for modification of a decree of dissolution granted by a court of this state.

(iv) When the defendant has property within this state which has been attached or has a debtor within this state, who has been garnished. Jurisdiction under this subsection may be independent of or supplementary to jurisdiction acquired under subsections (5)(a)(i), (5)(a)(ii), and (5)(a)(iii) herein.

(b) Effect of service by publication. When a defendant, whether known or unknown, has been served by publication as provided in this rule, any court of this state having jurisdiction may render a decree which will adjudicate any interest of such defendant in the status, property, or thing acted upon, but it may not bind the defendant personally to the personal jurisdiction of the court unless some ground for the exercise of personal jurisdiction exists.

(c) Filing of Pleading and Affidavit for Service by Publication; and Order for Publication. Before service of the summons by publication is authorized in any case, there shall be filed with the clerk in the district court of the county in which the action is commenced (i) a pleading setting forth a claim in favor of the plaintiff and against the defendant in one of the situations defined in (5)(a) above; and (ii) in situations defined in (5)(a)(i), (5)(a)(ii), (5)(a)(iii), upon return of the summons showing the failure to find any defendant designated in the complaint, an affidavit stating that such defendant resides out of the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals defendant’s person to avoid the service of summons; or, if the defendant is a domestic or foreign corporation, that none of the persons designated in D(2)(e) above can, after due diligence, be found within the state; or, if the defendant is an unknown claimant, by showing that the affiant has made diligent search and inquiry for all persons who claim, or might claim any right, title, estate, or interest in, or lien, or encumbrance upon, such property, or any thereof, adverse to plaintiff’s ownership, or any cloud upon plaintiff’s title thereto, whether such claim or possible claim be present or contingent, including any right of dower, inchoate or accrued, and that the affiant has specifically named as defendants in such action all such persons whose names can be ascertained; such affidavit shall be sufficient evidence of the diligence of any inquiry made by the affiant, if the affidavit recite the fact that diligent inquiry was made, and it need not detail the facts constituting such inquiry, and if desired, it may be combined in one instrument with the affidavit required under 4D(2)(f), or 4D(6); and (iii) in the situation defined in (5)(a)(iv) above, there must be first presented to the court proof that a valid attachment or garnishment has been effected. Upon complying herewith, the plaintiff may obtain an order for the service of summons to be made upon the defendants by publication, which order may be issued by either the judge or the clerk of the court.

(d) Number of Publications. Service of the summons by publication may be made by publishing the same three times, once each week for 3 successive weeks, in a newspaper published in the county in which the action is pending, if a newspaper is published in such county, and if no newspaper is published in such county then in a newspaper published in an adjoining county and having a general circulation therein.

(e) Mailing Summons and Complaint. A copy of the summons for publication and complaint, at any time after the filing of the affidavit for publication and not later than 10 days after the first publication of the summons, shall be deposited in some post office in this state, postage prepaid, and directed to the defendant at defendant’s place of residence unless the affidavit for publication states that the residence of the defendant is unknown. If the defendant is a corporation, and personal service cannot with due diligence be effected within Montana on any of the persons designated in D(2)(e) above, then service may be completed on said corporation by service upon the secretary of state in the manner, and following the procedure outlined in D(2)(f) above.

(f) Time When First Publication or Service Outside State Must Be Made. The first publication of summons, or personal service of the summons and complaint upon the defendant out of the state, must be made within 60 days after the filing of the affidavit for publication. If not so made, the action shall be deemed dismissed as to any party intended to be served by such publication.

(g) When Service by Publication or Outside State Complete. Service by publication is complete on the date of the last publication of the summons, or in case of personal service of the summons and complaint upon the defendant out of the state, on the date of such service.

(h) Additional Information to Be Published. In addition to the form of summons prescribed above in “C. Process, (2) Summons – Form,” the published summons shall state in general terms the nature of the action, and in all cases where publication of summons is made in an action in which the title to, or any interest in or lien upon real property is involved, or affected, or brought into question, the publication shall also contain a description of the real property involved, affected or brought into question thereby, and a statement of the object of the action.

(6)(a) Service on secretary of state. Whenever service is to be made upon certain corporations as provided hereinabove in D(2)(f) and D(5)(e), the requirements of said D(2)(f) must be complied with. In all other cases, unless otherwise provided by statute, whenever the secretary of state of the state of Montana has been appointed, or is deemed by law to have been appointed, as the agent to receive service of process for any person who cannot with due diligence be found or served personally within Montana, the party, or the party’s attorney, shall make an affidavit stating the facts showing that the secretary of state is such agent, and stating the residence and last known post-office address of the person to be served, and shall file such affidavit with the clerk of court in which such claim for relief is pending, accompanied by sufficient copies of the affidavit, summons and complaint for service upon the secretary of state, and there has also been deposited with the clerk of court in which such claim for relief is pending the sum of $10 to be paid to the secretary of state as a fee for each address of said defendants for whom the secretary of state is to receive such service; then the clerk shall forward the original summons, one copy of the summons and one copy of the affidavit for the files of the secretary of state, and one copy of the summons attached to copy of the complaint for each of the defendants to be served by service upon the secretary of state, and the fee, to the office of the secretary of state. Such service on the secretary of state shall be sufficient personal service upon the person to be served, provided that notice of such service and a copy of the summons and complaint are forthwith sent by registered or certified mail by the secretary of state or a deputy to the party to be served at that party’s last known address, marked “Deliver to Addressee Only” and “Return Receipt Requested,” and provided further that such return receipt shall be received by the secretary of state purporting to have been signed by said addressee, or the secretary of state shall be advised by the postal authority that delivery of said registered or certified mail was refused by said addressee, except in those cases where compliance is excused under the provisions of D(2)(f) above. The date upon which the secretary of state receives said return receipt, or receives advice by the postal authority that delivery of said registered or certified mail was refused by the addressee, shall be deemed the date of service. As an alternative to sending the summons and complaint by registered or certified mail, as herein provided, the secretary of state, or a deputy, may cause copy of the summons and complaint to be served by any qualified law enforcement officer, in accord with the procedure set out in D(1), (2) or (3) of this rule. The secretary of state, or a deputy, shall make an original and two copies of an affidavit reciting: (1) the fact of service upon the secretary of state by the clerk of court, including the day, and hour of such service; (2) the fact of mailing a copy of the summons and complaint and notice to the defendant, including the day and hour thereof, except in those cases where the secretary of state is relieved from doing so under the provisions of D(2)(f) in which cases the affidavit shall so recite; and (3) the fact of receipt of a return from the postal department including the date, and hour thereof, and attaching to the affidavit a copy of such return. The secretary of state, or a deputy, shall then transmit the original summons, and original affidavit along with copy of the notice to the defendant where such notice was required, to the clerk of court in which the claim for relief is pending, and it shall be filed in the claim for relief by said clerk of court; and the secretary of state shall also transmit to the attorney for the plaintiff copy of the affidavit of the secretary of state along with copy of the notice to the defendant where such notice was required. The secretary of state shall keep on file in the secretary of state’s office a copy of the summons, a copy of the affidavit served on the secretary of state by the clerk of court, and a copy of the affidavit executed and issued by the secretary of state.

(b) Continuance to allow defense. In any of the cases provided for in Rule 4D(2)(f) above, or provided for herein above in 4D(6)(a), the court in which the claim for relief is pending may order such continuance as may be necessary to afford reasonable opportunity to defend the action.

(7) Amendment. At any time, in its discretion, and upon such notice and 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.

(8) Proof of service. Proof of the service of the summons and of the complaint or notice, if any, accompanying the same must be as follows:

(a) If served by the sheriff or other officer, the sheriff’s or other officer’s certificate thereof;

(b) If by any other person, that person’s affidavit thereof;

(c) In case of publication an affidavit of the publisher and an affidavit of the deposit of a copy of the summons and complaint in the post office as required by law, if the same shall have been deposited; or

(d) The written admission of the defendant showing the date and place of service.

(e) If service is made under Rule 4D(1)(b) above, return shall be made by the sender’s filing with the court the acknowledgment received pursuant to such subdivision. Failure to make proof of service does not affect the validity of the service. The certificate or affidavit of service mentioned in this subdivision must state the time, date, place, and manner of service.

(9) Contents of affidavit of service. Whenever a process, pleading, order of court, or other paper is served personally by a person other than the sheriff or person designated by law, the affidavit of service when made, shall state that the person so serving is of legal age, and the date and place of making the service. It also shall state that the person making such service knew the person served to be the person named in the papers served and the person intended to be served.

(10) Procedure where only part of defendants are served. If the summons is served on one or more, but not all, of the defendants, the plaintiff may proceed to trial and judgment against the defendant or defendants on whom the process is served, and may at any time thereafter have a summons against the defendant not served with the first process to cause that defendant to appear in said court to show cause why that defendant should not be made a party to such judgment. Upon such defendant being duly served with such process, the court shall hear and determine the matter in the same manner as if such defendant had been originally brought into court, and such defendant shall also be allowed the benefit of any payment or satisfaction which may have been made on the judgment before recovered.

E. Time limit for issuance and service of process.

(1) A plaintiff shall have 3 years after filing a complaint to have a summons issued and accomplish service. Unless appearance has been made by the defendant(s), the court, upon motion or on its own initiative, shall dismiss an action without prejudice if a plaintiff fails to either have the summons issued or fails to accomplish service within 3 years from the date of the filing of a complaint.

(2) A plaintiff who names a fictitious defendant in the complaint, pursuant to Â§ 25-5-103, MCA, may amend the complaint to substitute a real defendant for the fictitious defendant within 3 years of filing the original complaint in the action. The 3 year time period set forth in subparagraph (1) of this rule for issuance and service begins to run, as to the newly identified defendant, from the date of the filing of the original complaint.

(3) The time limit imposed by subparagraphs (1) and (2) above shall apply to all lawsuits in which the original complaints were filed on or after January 1, 2000. The provisions of Rule 41(e), M.R.Civ.P., replaced by this rule, shall apply to all lawsuits in which the original complaint was filed before January 1, 2000.

[Amended effective May 1, 1990; March 26, 1993; February 14, 1996; August 15, 1999; November 16, 1999; amended effective January 1, 2000.]

RULE 45. SUBPOENA

(a) Form – Issuance.

(1) Every subpoena shall

(A) state the name of the court from which it is issued; and

(B) state the title of the action, and the name of the court in which it is pending, and its civil action number; and

(C) command each person to whom it is directed to attend and give testimony or to product and permit inspection and copy of designated books, documents, or tangible things in the possession, custody or control of the person, or to permit inspection of premises, at a time and place therein specified; and

(D) set forth the text of subparagraphs (c) and (d) of this rule.

A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately.

(2) A subpoena shall issue from the court in which the action is pending.

(3) The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney as officer of the Court may also issue and sign a subpoena on behalf of a court in which the action is pending.

(b) Service.

(1) A subpoena may be served by any person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and, if the person’s attendance is commanded, by tendering to that person the fees for one day’s attendance and the mileage allowed by law. Prior notice of any commanded production of documents and things or inspections of premises before trial shall be served on each party in the manner prescribed by rule 5(b).

(2) Subject to the provisions of clause (ii) of subparagraph (c)(3)(A) of this rule, a subpoena

(A) for attendance at a hearing or trial may be served at any place within the state and may require the person subpoenaed to appear at the hearing or trial irrespective of the person’s place of residence, place of employment, or where such person regularly transacts business in person;

(B) for the production of documentary evidence and/or the taking of a deposition may require a person to attend an examination or produce documentary evidence only at a place within the state; and

(i) in the case of residents or entities located within the state, within 100 miles of where that person resides or is employed or transacts business in person, or, if on any entity, within 100 miles of the principal location of the entity, or at such other convenient place as is fixed by order of court;

(ii) in the case of non-residents who have been served within the state, within 100 miles of where the non-resident is served, or at any other convenient place as is fixed by order of court.

(3) Proof of service when necessary shall be made by filling with the clerk of the court by which the subpoena is issued a statement of the date and manner of service and of the names of the persons served, certified by the person who made the service.

(2)(A) A person commanded to produce and permit inspections and copying of designated books, papers, documents or tangible things, or inspection of premises need not appearing person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.

(B) Subject to subparagraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying, or any person affected thereby, may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection in inspection or copying of any or all of the designated in the subpoena written objection to inspection or copying of any or all of the designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objections has been made, the party serving the subpoena may, upon notice to the person commanded to produce, and to any affected person who has served written objection, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.

(3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it

(i) fails to allow reasonable time for compliance; or

(ii) requires in the case of a deposition or production prior to hearing or trial, a person to travel beyond the 100 mile radius provided in subparagraph (b)(2) of this rule; or

(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or

(iv) subjects a person to undue burden.

(B) If a subpoena

(i) requires disclosure of a trade secret or other confidential research, development, or commercial information; or

(ii) requires disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study made not at the request of any party; or

(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.

(d) Duties in responding to subpoena.

(2) When information subject to a subpoena is withheld on a claim that is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communication, or things not produced that is sufficient to enable the demanding party to contest the claim.

(e) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. An adequate cause for failure to obey exists when a subpoena purports to require a non-party to attend or produce at a place not within the limits provided by clause (ii) of subparagraph (c)(3)(A) of this rule.

[Amended effective May 1, 1990; amended June 20, 1990; amended effective January 1, 2000.]

RULE 4. PERSONS SUBJECT TO JURISDICTION – PROCESS – SERVICEA. Definition of Person. As used in this rule, the word “person,” whether or not a citizen or resident of this state and whether or not organized under the laws of this state, includes an individual whether operating in the individual’s own name or under a trade name; an individual’s agent or personal representative; a corporation; a limited liability company; a business trust; an estate; a trust; a partnership; an unincorporated association; and any two or more persons having a joint or common interest or any other legal or commercial entity.B. Jurisdiction of Persons.(1) Subject to Jurisdiction. All persons found within the state of Montana are subject to the jurisdiction of the courts of this state. In addition, any person is subject to the jurisdiction of the courts of this state as to any claim for relief arising from the doing personally, through an employee, or through an agent, of any of the following acts:(a) the transaction of any business within this state;(b) the commission of an act which results in accrual within this state of a court action;(c) the ownership, use or possession of any property, or of any interest therein, situated within this state;(d) contracting to insure any person, property or risk located within this state at the time of contracting;(e) entering into a contract for services to be rendered or for materials to be furnished in this state by such person; or(f) acting as director, manager, trustee, or other officer of any corporation organized under the laws of, or having its principal place of business within this state, or as personal representative of any estate within this state(2) Acquisition of Jurisdiction. Jurisdiction may be acquired by our courts over any person through service of process as herein provided; or by the voluntary appearance in an action by any person either personally, or through an attorney, or through any other authorized officer, agent or employee.C. Process.(1) Summons – Issuance. Upon or after filing the complaint the plaintiff or, if the plaintiff is represented by an attorney, the plaintiff’s attorney shall present a summons to the clerk for issuance. If the summons is in proper form, the clerk shall issue it and deliver it to the plaintiff or to the plaintiff’s attorney who shall thereafter deliver it for service upon the defendant in the manner prescribed by these rules. Issuance and service of the summons shall be accomplished within the times prescribed by Rule E of these rules. Upon request, the clerk shall issue separate or additional summons against any parties designated in the original action, or against any additional parties who may be brought into the action, which separate or additional summons shall also be served in the manner and within the times prescribed by these rules. The party requesting issuance of the summons shall bear the burden of having it properly issued and served.(2) Summons – Form. The summons shall be signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, if any, otherwise the plaintiff’s address, and the time within which these rules require the defendant to appear and defend, and shall notify the defendant that in case of the defendant’s failure to do so judgment by default will be rendered against the defendant for the relief demanded in the complaint. In an action brought to quiet title to real estate, there shall be added to the foregoing, the following: “This action is brought for the purpose of quieting title to land situated in . . . County, Montana, and described as follows: (Here insert descriptions of land.).” For exceptions to this form of summons see 4D(4) “Other service,” set forth hereinafter.D. Service.(1) By whom served.(a) Service of all process shall be made in the county where the party to be served is found by a sheriff, deputy sheriff, constable, or any other person over the age of 18 not a party to the action.(b)(i) A summons and complaint may also be served upon a defendant who is an individual other than a minor or an incompetent person or upon a domestic or foreign corporation or partnership or other unincorporated association by mailing a copy of the summons and complaint (by first class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to form 18-A and a return envelope, postage prepaid, addressed to the sender. If no acknowledgment of service under this subdivision of this rule is received by the sender within 20 days after the date of mailing the summons and complaint, service of such summons and complaint shall be made by one of the persons mentioned in Rule 4D(1)(a) in the manner prescribed by Rule 4D(2) and Rule 4D(3).(ii) Unless good cause is shown for not doing so, the court shall order the payment of costs of the personal service by the person served if such person does not complete and return within 20 days after mailing, the notice and acknowledgment of receipt of summons.(iii) The notice and acknowledgment of receipt of summons and complaint shall be signed and dated. Service of summons and complaint will be deemed complete on the date of signature of the defendant as shown on the acknowledgment.(2) Personal service within the state. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:(a) Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to the individual personally or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process, provided that if the agent is one designated by statute to receive service, such further notice as the statute requires shall be given.(b) Upon a minor over the age of 14 years, by delivering a copy of the summons and complaint to the minor personally, and by leaving a copy thereof at the minor’s dwelling house or usual place of abode with some adult of suitable discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.(c) Upon a minor under the age of 14 years, by delivering a copy of the summons and complaint to the minor’s guardian, if the minor has one within the state, and if not, then to the minor’s father or mother or other person or agency having the minor’s care or control, or with whom the minor resides, or if service cannot be made upon any of them, then as provided by order of the court.(d) Upon a person who has been adjudged of unsound mind by a court of this state, or for whom a guardian has been appointed in this state by reason of incompetency, by delivering a copy of the summons and complaint to the person’s guardian, if there be a guardian residing in this state appointed and acting under the laws of this state. If there be no such guardian, the court shall appoint a guardian ad litem for the incompetent person, with or without personal service on the incompetent, as the court may direct. When a party is alleged to be of unsound mind, but has not been so adjudged by a court of this state, such party may be brought into court by service of process personally upon that party. The court may also stay any action pending against a person on learning that such person is of unsound mind.(e) Upon a domestic corporation, partnership or other unincorporated association, or upon a foreign corporation, partnership or other unincorporated association, established by the laws of any other state or country, and having a place of business within this state or doing business herein either permanently or temporarily, or which was doing business herein either permanently, or temporarily at the time the claim for relief accrued: (i) by delivering a copy of the summons and complaint to an officer, director, superintendent or managing or general agent, or partner, or associate for such corporation, partnership, or association; or by leaving such copies at the office or place of business of the corporation, partnership, or association within the state with the person in charge of such office; or (ii) by delivering a copy of the summons and complaint to the registered agent of said corporation named on the records of the secretary of state, or to any other agent or attorney in fact authorized by appointment or by statute to receive or accept service on behalf of the corporation, partnership, or association, provided that if the agent or attorney in fact is one designated by statute to receive service, such further notice as the statute requires shall also be given; or (iii) if the sheriff shall make return that no person upon whom service may be made can be found in the county, then service may be made by leaving a copy of the summons and complaint at any office of the corporation, partnership, or unincorporated association within this state with the person in charge of such office; or (iv) if the suit is against a corporation whose charter or right to do business in the state has expired or been forfeited, by delivering a copy thereof to any one of the persons who have become trustees for the corporation and its stockholders or members.(f) When a claim for relief is pending in any court of this state against a corporation organized under the laws of this state, or against a corporation organized under the laws of any other state or country, that has filed a copy of its charter in the office of the secretary of state of Montana and qualified to do business in Montana; or against a corporation organized under the laws of any other state or country which is subject to the jurisdiction of the courts of this state under the provisions of Rule 4B above, even though such corporation has never qualified to do business in Montana; or against a national banking corporation which, through insolvency or lapse of charter, has ceased to do business in Montana; and none of the persons designated in D(2)(e) immediately above can with the exercise of reasonable diligence be found within Montana, the party causing summons to be issued shall exercise reasonable diligence to ascertain the last known address of any such person. Upon the filing with the clerk of court in which the claim for relief is pending of an affidavit reciting that none of the persons designated in D(2)(e) can after due diligence be found within Montana upon whom service of process can be made, and reciting the last known address of any such person, or reciting that after the exercise of reasonable diligence no such address for any such person could be found, and there has also been deposited with the said clerk the sum of $5 to be paid to the secretary of state as a fee for each of said defendants for whom the secretary of state is to receive said service, then the clerk of court shall issue an order directing process to be served upon the secretary of state of the state of Montana or, in the secretary of state’s absence from the secretary of state’s office, upon the deputy secretary of state of the state of Montana. Such affidavit shall be sufficient evidence of the diligence of inquiry made by affiant, if the affidavit recites that diligent inquiry was made, and the affidavit need not detail the facts constituting such inquiry. Whenever service is also to be made through publication as provided in 4D(5), or upon other persons as provided in 4D(6), the affidavit herein required may be combined in the same instrument with the affidavit required under 4D(5)(c) and 4D(6). The said clerk of court shall then mail to the secretary of state the original summons, one copy of the summons and one copy of the affidavit for the files of the secretary of state, one copy of the summons attached to a copy of the complaint for each of the defendants to be served by service upon the secretary of state, and the fee for service, to the office of the secretary of state. The secretary of state shall mail copy of the summons and complaint by certified or registered mail with a return receipt requested to the last known address of any of the persons designated in D(2)(e) above, if known, or, if none such is known and it is a corporation not organized in Montana, to the secretary of state of the state in which such corporation was originally incorporated, if known; and the secretary of state shall make a return as hereinafter provided under Rule 4D(6). When service is so made, it shall be deemed personal service on such corporation, and the said secretary of state, or a deputy when the secretary is absent from the secretary of state’s office, is hereby appointed agent of such corporation for service of process in cases herein before mentioned. In any action where due diligence has been exercised to locate and serve any of the persons designated in D(2)(e) above, service shall be deemed complete upon said corporation regardless of the receipt of any return receipt or advice of refusal of the addressee to receive the process mailed, as is hereinafter required by 4D(6); provided, however, that except in those actions where any of the persons designated in D(2)(e) above have been located and served personally as herein above provided, then service by publication shall also be made as provided hereafter in 4D(5)(d) and 4D(5)(h); the first publication must be made within 60 days from the date the original summons is mailed to the secretary of state as herein provided, and if said first publication is not so made, the action shall be deemed dismissed as to any such party intended to be served by such publication; and service shall be complete upon the date of the last publication of summons.When service of process is made as herein provided, and there is no appearance thereafter made by any attorney for such corporation, service of all other notices required by law to be served in such action may be served upon the secretary of state.(g) Upon a city, village, town, school district, county, or public agency or board of any such public bodies, by delivering a copy of the summons and complaint to any commissioner, trustee, board member, mayor or head of the legislative department thereof.(h) Upon the state, or any state board or state agency, by delivering a copy of the summons and complaint to the attorney general and to any other party which may be prescribed by statute.(i) Upon an estate by delivering a copy of the summons and complaint to the personal representative thereof; upon a trust by delivering a copy of the summons and complaint to any trustee thereof.(3) Personal service outside the state. Where service upon any person cannot, with due diligence, be made personally within this state, service of summons and complaint may be made by service outside this state in the manner provided for service within this state, with the same force and effect as though service had been made within this state. Where service by publication is permitted as hereinafter provided, personal service of a summons and complaint upon the defendant out of the state shall be equivalent to and shall dispense with the procedures and the publication and mailing provided for hereafter in 4(5)(c), 4(5)(d) and 4(5)(e) of this rule.(4) Other service. All process in any form of action shall be served in the manner specified in this rule with the exception that whenever a statute of this state or an order of the court or a citation by the court made pursuant thereto provides for the service of a notice or of an order or of a citation in lieu of summons upon any person, service shall be made under the circumstances and in the manner prescribed by the statute or order or citation; and with the further exception that all persons are required to comply with the provisions hereafter prescribed in D(5)(h), and with the provisions of 33-1-603, 33-1-613, 33-1-614, 33-2-314, 33-2-315, 70-28-207, 70-28-208, 70-28-209, and 70-28-212, Montana Code Annotated, when the action pertains to the provisions of such sections.(5) Service by publication–when permitted–effect–manner–proof.(a) When permitted. A defendant, whether known or unknown, who has not been served under the foregoing subsections of this rule can be served by publication in the following situations only:(i) When the subject of the action is real or personal property in this state and the defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partially in excluding the defendant from any interest therein. This subsection shall apply whether any such defendant is known or unknown.(ii) When the action is to foreclose, redeem from or satisfy a mortgage, claim or lien upon real or personal property within this state.(iii) When the action is for dissolution or for a declaration of invalidity of a marriage of a resident of this state or for modification of a decree of dissolution granted by a court of this state.(iv) When the defendant has property within this state which has been attached or has a debtor within this state, who has been garnished. Jurisdiction under this subsection may be independent of or supplementary to jurisdiction acquired under subsections (5)(a)(i), (5)(a)(ii), and (5)(a)(iii) herein.(b) Effect of service by publication. When a defendant, whether known or unknown, has been served by publication as provided in this rule, any court of this state having jurisdiction may render a decree which will adjudicate any interest of such defendant in the status, property, or thing acted upon, but it may not bind the defendant personally to the personal jurisdiction of the court unless some ground for the exercise of personal jurisdiction exists.(c) Filing of Pleading and Affidavit for Service by Publication; and Order for Publication. Before service of the summons by publication is authorized in any case, there shall be filed with the clerk in the district court of the county in which the action is commenced (i) a pleading setting forth a claim in favor of the plaintiff and against the defendant in one of the situations defined in (5)(a) above; and (ii) in situations defined in (5)(a)(i), (5)(a)(ii), (5)(a)(iii), upon return of the summons showing the failure to find any defendant designated in the complaint, an affidavit stating that such defendant resides out of the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals defendant’s person to avoid the service of summons; or, if the defendant is a domestic or foreign corporation, that none of the persons designated in D(2)(e) above can, after due diligence, be found within the state; or, if the defendant is an unknown claimant, by showing that the affiant has made diligent search and inquiry for all persons who claim, or might claim any right, title, estate, or interest in, or lien, or encumbrance upon, such property, or any thereof, adverse to plaintiff’s ownership, or any cloud upon plaintiff’s title thereto, whether such claim or possible claim be present or contingent, including any right of dower, inchoate or accrued, and that the affiant has specifically named as defendants in such action all such persons whose names can be ascertained; such affidavit shall be sufficient evidence of the diligence of any inquiry made by the affiant, if the affidavit recite the fact that diligent inquiry was made, and it need not detail the facts constituting such inquiry, and if desired, it may be combined in one instrument with the affidavit required under 4D(2)(f), or 4D(6); and (iii) in the situation defined in (5)(a)(iv) above, there must be first presented to the court proof that a valid attachment or garnishment has been effected. Upon complying herewith, the plaintiff may obtain an order for the service of summons to be made upon the defendants by publication, which order may be issued by either the judge or the clerk of the court.(d) Number of Publications. Service of the summons by publication may be made by publishing the same three times, once each week for 3 successive weeks, in a newspaper published in the county in which the action is pending, if a newspaper is published in such county, and if no newspaper is published in such county then in a newspaper published in an adjoining county and having a general circulation therein.(e) Mailing Summons and Complaint. A copy of the summons for publication and complaint, at any time after the filing of the affidavit for publication and not later than 10 days after the first publication of the summons, shall be deposited in some post office in this state, postage prepaid, and directed to the defendant at defendant’s place of residence unless the affidavit for publication states that the residence of the defendant is unknown. If the defendant is a corporation, and personal service cannot with due diligence be effected within Montana on any of the persons designated in D(2)(e) above, then service may be completed on said corporation by service upon the secretary of state in the manner, and following the procedure outlined in D(2)(f) above.(f) Time When First Publication or Service Outside State Must Be Made. The first publication of summons, or personal service of the summons and complaint upon the defendant out of the state, must be made within 60 days after the filing of the affidavit for publication. If not so made, the action shall be deemed dismissed as to any party intended to be served by such publication.(g) When Service by Publication or Outside State Complete. Service by publication is complete on the date of the last publication of the summons, or in case of personal service of the summons and complaint upon the defendant out of the state, on the date of such service.(h) Additional Information to Be Published. In addition to the form of summons prescribed above in “C. Process, (2) Summons – Form,” the published summons shall state in general terms the nature of the action, and in all cases where publication of summons is made in an action in which the title to, or any interest in or lien upon real property is involved, or affected, or brought into question, the publication shall also contain a description of the real property involved, affected or brought into question thereby, and a statement of the object of the action.
(6)(a) Service on secretary of state. Whenever service is to be made upon certain corporations as provided hereinabove in D(2)(f) and D(5)(e), the requirements of said D(2)(f) must be complied with. In all other cases, unless otherwise provided by statute, whenever the secretary of state of the state of Montana has been appointed, or is deemed by law to have been appointed, as the agent to receive service of process for any person who cannot with due diligence be found or served personally within Montana, the party, or the party’s attorney, shall make an affidavit stating the facts showing that the secretary of state is such agent, and stating the residence and last known post-office address of the person to be served, and shall file such affidavit with the clerk of court in which such claim for relief is pending, accompanied by sufficient copies of the affidavit, summons and complaint for service upon the secretary of state, and there has also been deposited with the clerk of court in which such claim for relief is pending the sum of $10 to be paid to the secretary of state as a fee for each address of said defendants for whom the secretary of state is to receive such service; then the clerk shall forward the original summons, one copy of the summons and one copy of the affidavit for the files of the secretary of state, and one copy of the summons attached to copy of the complaint for each of the defendants to be served by service upon the secretary of state, and the fee, to the office of the secretary of state. Such service on the secretary of state shall be sufficient personal service upon the person to be served, provided that notice of such service and a copy of the summons and complaint are forthwith sent by registered or certified mail by the secretary of state or a deputy to the party to be served at that party’s last known address, marked “Deliver to Addressee Only” and “Return Receipt Requested,” and provided further that such return receipt shall be received by the secretary of state purporting to have been signed by said addressee, or the secretary of state shall be advised by the postal authority that delivery of said registered or certified mail was refused by said addressee, except in those cases where compliance is excused under the provisions of D(2)(f) above. The date upon which the secretary of state receives said return receipt, or receives advice by the postal authority that delivery of said registered or certified mail was refused by the addressee, shall be deemed the date of service. As an alternative to sending the summons and complaint by registered or certified mail, as herein provided, the secretary of state, or a deputy, may cause copy of the summons and complaint to be served by any qualified law enforcement officer, in accord with the procedure set out in D(1), (2) or (3) of this rule. The secretary of state, or a deputy, shall make an original and two copies of an affidavit reciting: (1) the fact of service upon the secretary of state by the clerk of court, including the day, and hour of such service; (2) the fact of mailing a copy of the summons and complaint and notice to the defendant, including the day and hour thereof, except in those cases where the secretary of state is relieved from doing so under the provisions of D(2)(f) in which cases the affidavit shall so recite; and (3) the fact of receipt of a return from the postal department including the date, and hour thereof, and attaching to the affidavit a copy of such return. The secretary of state, or a deputy, shall then transmit the original summons, and original affidavit along with copy of the notice to the defendant where such notice was required, to the clerk of court in which the claim for relief is pending, and it shall be filed in the claim for relief by said clerk of court; and the secretary of state shall also transmit to the attorney for the plaintiff copy of the affidavit of the secretary of state along with copy of the notice to the defendant where such notice was required. The secretary of state shall keep on file in the secretary of state’s office a copy of the summons, a copy of the affidavit served on the secretary of state by the clerk of court, and a copy of the affidavit executed and issued by the secretary of state.(b) Continuance to allow defense. In any of the cases provided for in Rule 4D(2)(f) above, or provided for herein above in 4D(6)(a), the court in which the claim for relief is pending may order such continuance as may be necessary to afford reasonable opportunity to defend the action.(7) Amendment. At any time, in its discretion, and upon such notice and 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.(8) Proof of service. Proof of the service of the summons and of the complaint or notice, if any, accompanying the same must be as follows:(a) If served by the sheriff or other officer, the sheriff’s or other officer’s certificate thereof;(b) If by any other person, that person’s affidavit thereof;(c) In case of publication an affidavit of the publisher and an affidavit of the deposit of a copy of the summons and complaint in the post office as required by law, if the same shall have been deposited; or(d) The written admission of the defendant showing the date and place of service.(e) If service is made under Rule 4D(1)(b) above, return shall be made by the sender’s filing with the court the acknowledgment received pursuant to such subdivision. Failure to make proof of service does not affect the validity of the service. The certificate or affidavit of service mentioned in this subdivision must state the time, date, place, and manner of service.(9) Contents of affidavit of service. Whenever a process, pleading, order of court, or other paper is served personally by a person other than the sheriff or person designated by law, the affidavit of service when made, shall state that the person so serving is of legal age, and the date and place of making the service. It also shall state that the person making such service knew the person served to be the person named in the papers served and the person intended to be served.(10) Procedure where only part of defendants are served. If the summons is served on one or more, but not all, of the defendants, the plaintiff may proceed to trial and judgment against the defendant or defendants on whom the process is served, and may at any time thereafter have a summons against the defendant not served with the first process to cause that defendant to appear in said court to show cause why that defendant should not be made a party to such judgment. Upon such defendant being duly served with such process, the court shall hear and determine the matter in the same manner as if such defendant had been originally brought into court, and such defendant shall also be allowed the benefit of any payment or satisfaction which may have been made on the judgment before recovered.E. Time limit for issuance and service of process.(1) A plaintiff shall have 3 years after filing a complaint to have a summons issued and accomplish service. Unless appearance has been made by the defendant(s), the court, upon motion or on its own initiative, shall dismiss an action without prejudice if a plaintiff fails to either have the summons issued or fails to accomplish service within 3 years from the date of the filing of a complaint.(2) A plaintiff who names a fictitious defendant in the complaint, pursuant to Â§ 25-5-103, MCA, may amend the complaint to substitute a real defendant for the fictitious defendant within 3 years of filing the original complaint in the action. The 3 year time period set forth in subparagraph (1) of this rule for issuance and service begins to run, as to the newly identified defendant, from the date of the filing of the original complaint.(3) The time limit imposed by subparagraphs (1) and (2) above shall apply to all lawsuits in which the original complaints were filed on or after January 1, 2000. The provisions of Rule 41(e), M.R.Civ.P., replaced by this rule, shall apply to all lawsuits in which the original complaint was filed before January 1, 2000.[Amended effective May 1, 1990; March 26, 1993; February 14, 1996; August 15, 1999; November 16, 1999; amended effective January 1, 2000.]RULE 45. SUBPOENA(a) Form – Issuance.(1) Every subpoena shall(A) state the name of the court from which it is issued; and(B) state the title of the action, and the name of the court in which it is pending, and its civil action number; and(C) command each person to whom it is directed to attend and give testimony or to product and permit inspection and copy of designated books, documents, or tangible things in the possession, custody or control of the person, or to permit inspection of premises, at a time and place therein specified; and(D) set forth the text of subparagraphs (c) and (d) of this rule.A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately.(2) A subpoena shall issue from the court in which the action is pending.(3) The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney as officer of the Court may also issue and sign a subpoena on behalf of a court in which the action is pending.(b) Service.(1) A subpoena may be served by any person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and, if the person’s attendance is commanded, by tendering to that person the fees for one day’s attendance and the mileage allowed by law. Prior notice of any commanded production of documents and things or inspections of premises before trial shall be served on each party in the manner prescribed by rule 5(b).(2) Subject to the provisions of clause (ii) of subparagraph (c)(3)(A) of this rule, a subpoena(A) for attendance at a hearing or trial may be served at any place within the state and may require the person subpoenaed to appear at the hearing or trial irrespective of the person’s place of residence, place of employment, or where such person regularly transacts business in person;(B) for the production of documentary evidence and/or the taking of a deposition may require a person to attend an examination or produce documentary evidence only at a place within the state; and(i) in the case of residents or entities located within the state, within 100 miles of where that person resides or is employed or transacts business in person, or, if on any entity, within 100 miles of the principal location of the entity, or at such other convenient place as is fixed by order of court;(ii) in the case of non-residents who have been served within the state, within 100 miles of where the non-resident is served, or at any other convenient place as is fixed by order of court.(3) Proof of service when necessary shall be made by filling with the clerk of the court by which the subpoena is issued a statement of the date and manner of service and of the names of the persons served, certified by the person who made the service.(c) Protection of persons subject to or affected by subpoenas.(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney’s fee.(2)(A) A person commanded to produce and permit inspections and copying of designated books, papers, documents or tangible things, or inspection of premises need not appearing person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.(B) Subject to subparagraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying, or any person affected thereby, may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection in inspection or copying of any or all of the designated in the subpoena written objection to inspection or copying of any or all of the designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objections has been made, the party serving the subpoena may, upon notice to the person commanded to produce, and to any affected person who has served written objection, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.(3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it(i) fails to allow reasonable time for compliance; or(ii) requires in the case of a deposition or production prior to hearing or trial, a person to travel beyond the 100 mile radius provided in subparagraph (b)(2) of this rule; or(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or(iv) subjects a person to undue burden.(B) If a subpoena(i) requires disclosure of a trade secret or other confidential research, development, or commercial information; or(ii) requires disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study made not at the request of any party; or(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.(d) Duties in responding to subpoena.(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.(2) When information subject to a subpoena is withheld on a claim that is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communication, or things not produced that is sufficient to enable the demanding party to contest the claim.(e) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. An adequate cause for failure to obey exists when a subpoena purports to require a non-party to attend or produce at a place not within the limits provided by clause (ii) of subparagraph (c)(3)(A) of this rule.[Amended effective May 1, 1990; amended June 20, 1990; amended effective January 1, 2000.]

Topics: Process Service | No Comments »

Hawaii Foreclosure Process Server Laws

By admin | April 9, 2010

Rule 3. COMMENCEMENT OF ACTION.

A civil action is commenced by filing a complaint with the court. “Complaint” includes any initial pleading required by statute.

(Amended October 11, 1999, effective January 1, 2000.)

Rule 4. PROCESS.

(a) Summons: Issuance. Upon the filing of the complaint, the clerk shall forthwith issue a summons and deliver it to the plaintiff for service by a person authorized to serve process. Upon request of the plaintiff, separate or additional summons shall issue against any defendant.

(b) Summons: Form. The summons shall

(1) be signed by the clerk under the seal of the court,

(2) contain the name of the court, the names of the parties, and the date when issued.

(3) be directed to the defendant or cross-defendant,

(4) state the name and address of the plaintiff’s attorney, if any, otherwise the plaintiff’s address,

(5) state the time within which these rules require the defendant or cross-defendant to appear and defend, and shall notify the defendant or cross-defendant that in case of the defendant’s or cross-defendant’s failure to do so judgment by default will be rendered against the defendant or cross-defendant for the relief demanded in the complaint,

(6) contain a prohibition against personal delivery of the summons between 10:00 p.m. and 6:00 a.m. on premises not open to the public, unless a judge of the family or circuit courts permits, in writing on the summons, personal delivery during those hours, and

(7) contain a warning to the person summoned that failure to obey the summons may result in an entry of default and default judgment.

When, under Rule 4(e), service is made pursuant to a statute or rule of court, the summons or notice, or order in lieu of summons, shall correspond as nearly as may be to that required by the statute or rule.

(c) Summons: By Whom Served. Service shall be made: (1) anywhere in the State by the sheriff or the sheriff’s deputy, by some other person specially appointed by the court for that purpose, or by any person who is not a party and is not less than 18 years of age; or (2) in any county by the chief of police of that county or the chief’s duly authorized subordinate. Subpoena, however, may be served as provided in Rule 45.

(d) Summons: Personal Service. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:

(1) Upon an individual other than a child or an incompetent person,

(A) by delivering a copy of the summons and of the complaint to the individual personally or in case the individual cannot be found by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or

(B) by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.

(2) Upon a child, by delivering a copy of the summons and of the complaint personally

(A) to the parent or parents, custodian, or guardian of the minor or as provided by order of the court and

(B) except as required by statute, if the child is 16 years or over, also to the child; and

(3) Upon an incompetent person, by delivering a copy of the summons and of the complaint personally

(A) to the guardian of the incompetent person or to the guardian of the incompetent person’s property, or if the incompetent person is living in an institution then to the director or chief executive officer of the institution, or if service cannot be made upon either of them, then as provided by order of the court, and

(B) unless the court otherwise orders, also to the incompetent person.

(4) Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to 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 mailing a copy to the defendant.

(5) Upon the State, by delivering a copy of the summons and of the complaint to the attorney general of the State or to the assistant attorney general or to any deputy attorney general who has been appointed by the attorney general.

(6) Upon an officer or agency of the State, by serving the State and by delivering a copy of the summons and of the complaint to such officer or agency. If the agency is a corporation, the copies shall be delivered as provided in paragraph (4) of this subdivision of this rule.

(7) Upon a county, as provided by statute or the county charter, or by delivering a copy of the summons and of the complaint to the corporation counsel or county attorney or any of the deputies.

(8) Upon an officer or agency of a county, by serving the county and by delivering a copy of the summons and of the complaint to such officer or agency. If the agency is a corporation the copies shall be delivered as provided in paragraph (4) of this subdivision of this rule.

(9) Upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule, it is also sufficient if the summons and complaint are served in the manner prescribed by any statute.

(e) Summons: Other Service. Whenever a statute or an order of court provides for service upon a party not an inhabitant of or found within the State of a summons, or of a notice, or of an order in lieu of summons, service shall be made under the circumstances and in the manner prescribed by the statute or order. Whenever a statute or an order of court requires or permits service by publication of a summons, or of a notice, or of an order in lieu of summons, any publication pursuant thereto shall be made under the circumstances and in the manner prescribed by the statute or order.

(f) Territorial Limits of Effective Service. All process may be served anywhere within the State and, when a statute or order so provides, beyond the limits of the State.

(g) Return. The person serving the process shall make proof of service thereof to the court promptly and in any event within the time during which the person served must respond to process. When service is made by any person specially appointed by the court, that person shall make affidavit of such service.

(h) Amendment. 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.

(Amended July 1, 1982, effective July 1, 1982; further amended March 19, 1986, effective March 19, 1986; further amended September 14, 1993, effective September 14, 1993; further amended May 12, 1995, effective June 1, 1995; further amended October 11, 1999, effective January 1, 2000.)

Rule 5. SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS.

(a) Service: When Required. Every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, brief or memorandum of law, offer of judgment, bill of costs, designation of record on appeal, and similar paper shall be served upon each of the parties, except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.

(b) Service: How Made. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or party or by mailing it to the attorney or party at the attorney’s or party’s last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at the attorney’s or party’s office with a clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at the person’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing.

(c) Service: Numerous Defendants. In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.

(d) Filing. Except as otherwise provided in subdivision (f) of this rule, all papers after the complaint required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter.

(e) Filing With the Court Defined. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. Any other rule to the contrary notwithstanding, the clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules. Proposed findings, conclusions, orders, or judgments submitted for signature shall be dated and stamped “lodged” or “received” by the clerk and transmitted to the court for consideration.

(f) Nonfiling of Discovery Materials. A deposition, interrogatory, request for discovery production or inspection, request for documents, request for admissions, and answers and responses thereto shall not be filed automatically with the court; provided that on a motion or at trial any such document shall be filed when offered in evidence or submitted as an exhibit; and further provided that a deposition taken outside this state or a deposition taken by an officer who is discontinuing the occupation of taking depositions shall be promptly filed pursuant to Rule 30(f)(1). In addition the court may at any time, on ex parte request or sua sponte, order the filing of any discovery material.

(Amended July 1, 1982, effective July 1, 1982; further amended March 16, 1984, partly effective March 16, 1984, fully effective May 1, 1984; further amended June 23, 1997, effective August 1, 1997; further amended July 2, 1997, effective July 2, 1997; further amended October 11, 1999, effective January 1, 2000; further amended November 5, 1999, effective November 5, 1999.)

Rule 6. TIME.

(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday or a holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation. As used in this rule, “holiday” includes any day designated as such pursuant to section 8-1 of the Hawai`i Revised Statutes.

(b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 52(b), 59(b), (d) and (e) and 60(b) of these rules and Rule 4(a) of the Hawai`i Rules of Appellate Procedure, except to the extent and under the conditions stated in them.

(d) For Motions; Affidavits. A written motion, other than a motion pursuant to Rule 56 and one which may be heard ex parte, and notice of the hearing thereof, shall be served not later than 48 hours before the time specified for hearing, provided that whenever a motion which seeks relief pendente lite is served on the adverse party by mail in a circuit other than where the motion is filed, such service shall be made not later than 5 days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court, and provided further that whenever the motion is served upon the adverse party outside of the State, such service shall be made not later than 20 days before the time specified for hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59(c), opposing affidavits may be served not later than the day preceding the hearing, unless the court permits them to be served at some other time.

(e) Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 2 days shall be added to the prescribed period.

(Amended July 1, 1982, effective July 1, 1982; further amended April 23, 1985, effective April 23, 1985; further amended October 11, 1999, effective January 1, 2000.)

Rule 71. PROCESS IN BEHALF OF AND AGAINST PERSONS NOT PARTIES.

When an order is made in favor of a person who is not a party to the action, that person may enforce obedience to the order by the same process as if a party; and, when obedience to an order may be lawfully enforced against a person who is not a party, that person is liable to the same process for enforcing obedience to the order as if a party.

(Amended October 11, 1999, effective January 1, 2000)

Rule 3. COMMENCEMENT OF ACTION.A civil action is commenced by filing a complaint with the court. “Complaint” includes any initial pleading required by statute.(Amended October 11, 1999, effective January 1, 2000.)
Rule 4. PROCESS.(a) Summons: Issuance. Upon the filing of the complaint, the clerk shall forthwith issue a summons and deliver it to the plaintiff for service by a person authorized to serve process. Upon request of the plaintiff, separate or additional summons shall issue against any defendant.
(b) Summons: Form. The summons shall
(1) be signed by the clerk under the seal of the court,
(2) contain the name of the court, the names of the parties, and the date when issued.
(3) be directed to the defendant or cross-defendant,
(4) state the name and address of the plaintiff’s attorney, if any, otherwise the plaintiff’s address,
(5) state the time within which these rules require the defendant or cross-defendant to appear and defend, and shall notify the defendant or cross-defendant that in case of the defendant’s or cross-defendant’s failure to do so judgment by default will be rendered against the defendant or cross-defendant for the relief demanded in the complaint,
(6) contain a prohibition against personal delivery of the summons between 10:00 p.m. and 6:00 a.m. on premises not open to the public, unless a judge of the family or circuit courts permits, in writing on the summons, personal delivery during those hours, and
(7) contain a warning to the person summoned that failure to obey the summons may result in an entry of default and default judgment.
When, under Rule 4(e), service is made pursuant to a statute or rule of court, the summons or notice, or order in lieu of summons, shall correspond as nearly as may be to that required by the statute or rule.
(c) Summons: By Whom Served. Service shall be made: (1) anywhere in the State by the sheriff or the sheriff’s deputy, by some other person specially appointed by the court for that purpose, or by any person who is not a party and is not less than 18 years of age; or (2) in any county by the chief of police of that county or the chief’s duly authorized subordinate. Subpoena, however, may be served as provided in Rule 45.
(d) Summons: Personal Service. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:
(1) Upon an individual other than a child or an incompetent person,
(A) by delivering a copy of the summons and of the complaint to the individual personally or in case the individual cannot be found by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or
(B) by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.
(2) Upon a child, by delivering a copy of the summons and of the complaint personally
(A) to the parent or parents, custodian, or guardian of the minor or as provided by order of the court and
(B) except as required by statute, if the child is 16 years or over, also to the child; and
(3) Upon an incompetent person, by delivering a copy of the summons and of the complaint personally
(A) to the guardian of the incompetent person or to the guardian of the incompetent person’s property, or if the incompetent person is living in an institution then to the director or chief executive officer of the institution, or if service cannot be made upon either of them, then as provided by order of the court, and
(B) unless the court otherwise orders, also to the incompetent person.
(4) Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to 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 mailing a copy to the defendant.
(5) Upon the State, by delivering a copy of the summons and of the complaint to the attorney general of the State or to the assistant attorney general or to any deputy attorney general who has been appointed by the attorney general.
(6) Upon an officer or agency of the State, by serving the State and by delivering a copy of the summons and of the complaint to such officer or agency. If the agency is a corporation, the copies shall be delivered as provided in paragraph (4) of this subdivision of this rule.
(7) Upon a county, as provided by statute or the county charter, or by delivering a copy of the summons and of the complaint to the corporation counsel or county attorney or any of the deputies.
(8) Upon an officer or agency of a county, by serving the county and by delivering a copy of the summons and of the complaint to such officer or agency. If the agency is a corporation the copies shall be delivered as provided in paragraph (4) of this subdivision of this rule.
(9) Upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule, it is also sufficient if the summons and complaint are served in the manner prescribed by any statute.
(e) Summons: Other Service. Whenever a statute or an order of court provides for service upon a party not an inhabitant of or found within the State of a summons, or of a notice, or of an order in lieu of summons, service shall be made under the circumstances and in the manner prescribed by the statute or order. Whenever a statute or an order of court requires or permits service by publication of a summons, or of a notice, or of an order in lieu of summons, any publication pursuant thereto shall be made under the circumstances and in the manner prescribed by the statute or order.
(f) Territorial Limits of Effective Service. All process may be served anywhere within the State and, when a statute or order so provides, beyond the limits of the State.
(g) Return. The person serving the process shall make proof of service thereof to the court promptly and in any event within the time during which the person served must respond to process. When service is made by any person specially appointed by the court, that person shall make affidavit of such service.
(h) Amendment. 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.(Amended July 1, 1982, effective July 1, 1982; further amended March 19, 1986, effective March 19, 1986; further amended September 14, 1993, effective September 14, 1993; further amended May 12, 1995, effective June 1, 1995; further amended October 11, 1999, effective January 1, 2000.)
Rule 5. SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS.(a) Service: When Required. Every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, brief or memorandum of law, offer of judgment, bill of costs, designation of record on appeal, and similar paper shall be served upon each of the parties, except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.
(b) Service: How Made. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or party or by mailing it to the attorney or party at the attorney’s or party’s last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at the attorney’s or party’s office with a clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at the person’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing.
(c) Service: Numerous Defendants. In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.
(d) Filing. Except as otherwise provided in subdivision (f) of this rule, all papers after the complaint required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter.
(e) Filing With the Court Defined. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. Any other rule to the contrary notwithstanding, the clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules. Proposed findings, conclusions, orders, or judgments submitted for signature shall be dated and stamped “lodged” or “received” by the clerk and transmitted to the court for consideration.
(f) Nonfiling of Discovery Materials. A deposition, interrogatory, request for discovery production or inspection, request for documents, request for admissions, and answers and responses thereto shall not be filed automatically with the court; provided that on a motion or at trial any such document shall be filed when offered in evidence or submitted as an exhibit; and further provided that a deposition taken outside this state or a deposition taken by an officer who is discontinuing the occupation of taking depositions shall be promptly filed pursuant to Rule 30(f)(1). In addition the court may at any time, on ex parte request or sua sponte, order the filing of any discovery material.(Amended July 1, 1982, effective July 1, 1982; further amended March 16, 1984, partly effective March 16, 1984, fully effective May 1, 1984; further amended June 23, 1997, effective August 1, 1997; further amended July 2, 1997, effective July 2, 1997; further amended October 11, 1999, effective January 1, 2000; further amended November 5, 1999, effective November 5, 1999.)
Rule 6. TIME.(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday or a holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation. As used in this rule, “holiday” includes any day designated as such pursuant to section 8-1 of the Hawai`i Revised Statutes.
(b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 52(b), 59(b), (d) and (e) and 60(b) of these rules and Rule 4(a) of the Hawai`i Rules of Appellate Procedure, except to the extent and under the conditions stated in them.
(c) (Deleted)
(d) For Motions; Affidavits. A written motion, other than a motion pursuant to Rule 56 and one which may be heard ex parte, and notice of the hearing thereof, shall be served not later than 48 hours before the time specified for hearing, provided that whenever a motion which seeks relief pendente lite is served on the adverse party by mail in a circuit other than where the motion is filed, such service shall be made not later than 5 days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court, and provided further that whenever the motion is served upon the adverse party outside of the State, such service shall be made not later than 20 days before the time specified for hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59(c), opposing affidavits may be served not later than the day preceding the hearing, unless the court permits them to be served at some other time.
(e) Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 2 days shall be added to the prescribed period.(Amended July 1, 1982, effective July 1, 1982; further amended April 23, 1985, effective April 23, 1985; further amended October 11, 1999, effective January 1, 2000.)

Rule 71. PROCESS IN BEHALF OF AND AGAINST PERSONS NOT PARTIES.When an order is made in favor of a person who is not a party to the action, that person may enforce obedience to the order by the same process as if a party; and, when obedience to an order may be lawfully enforced against a person who is not a party, that person is liable to the same process for enforcing obedience to the order as if a party.(Amended October 11, 1999, effective January 1, 2000)

Topics: Process Service | No Comments »

Kansas Foreclosure Process Server Laws

By admin | April 9, 2010

Chapter 60, Article 3 – Process

60-303. Methods of service of process.

(a) Methods of service of process within this state, except service by publication as provided in K.S.A. 60-307, and amendments thereto, are described in this section. Methods of out-of-state service of process are described in K.S.A. 60-308, and amendments thereto.

(b) Service by certified mail. Except if the attorney for the party or the party, if the party is not represented by an attorney, requests personal or residence service pursuant to subsection (c); if the attorney or the party requesting service elects to serve process by certified mail pursuant to this subsection; as provided in K.S.A. 60-903, 60-2401 or 60-3104, and amendments thereto; or as otherwise provided by law, the sheriff of the county wherein the action is filed shall serve any process by certified mail, evidenced by return receipt signed by any person or by restricted delivery, unless otherwise permitted by this article. The sheriff, attorney for the party seeking service or the party, if the party is not represented by an attorney, shall cause a copy of the process and petition or other document to be placed in an envelope addressed to the person to be served in accordance with K.S.A. 60-304, and amendments thereto, adequate postage to be affixed and the sealed envelope to be placed in the United States mail as certified mail return receipt requested with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. The sheriff, party’s attorney or the party, if the party is not represented by an attorney, shall execute a return on service stating the nature of the process, the date on which the process was mailed, and the name and address on the envelope containing the process mailed as certified mail return receipt requested. The sheriff, party or the party’s attorney shall file the return on service and the return receipt or return envelope in the records of the action. Service of process shall be considered obtained under K.S.A. 60-203, and amendments thereto, upon the delivery of the certified mail envelope. If the certified mail envelope is returned with an endorsement showing refusal of delivery, the sheriff, serving party or the party’s attorney shall send a copy of the process and petition or other document to be served to the defendant by ordinary, first-class mail. The mailing shall be evidenced by a certificate of mailing which shall be filed with the clerk. Service shall be considered obtained upon the mailing by ordinary, first-class mail. Failure to claim certified mail service is not refusal of service within the meaning of this subsection.

(1) When the plaintiff files a written request with the clerk for service other than by certified mail, service of process shall be made by personal or residence service. Personal service shall be made by delivering or offering to deliver a copy of the process and accompanying documents to the person to be served. Residence service shall be made by leaving a copy of the process and petition, or other document to be served, at the dwelling house or usual place of abode of the person to be served with some person of suitable age and discretion residing therein. If service cannot be made upon an individual, other than a minor or a disabled person, by personal or residence service, service may be made by leaving a copy of the process and petition, or other document to be served, at the defendant’s dwelling house or usual place of abode and mailing a notice that such copy has been left at such house or place of abode to the individual by first-class mail.

(2) When process is to be served under this subsection, the clerk of the court shall deliver the process and sufficient copies of the process and petition, or other document to be served, to the sheriff of the county where the process is to be served or, if requested, to a person appointed to serve process or to the plaintiff’s attorney.

(3) Service, levy and execution of all process under this subsection, including, but not limited to, writs of execution, orders of attachment, replevin orders, orders for delivery, writs of restitution and writs of assistance, shall be made by a sheriff within the sheriff’s county, by the sheriff’s deputy, by an attorney admitted to the practice of law before the supreme court of Kansas or by some person appointed as a process server by a judge or clerk of the district court, except that a subpoena may also be served by any other person who is not a party and is not less than 18 years of age. Process servers shall be appointed freely and may be authorized either to serve process in a single case or in cases generally during a fixed period of time. A process server or an authorized attorney may make the service anywhere in or out of the state and shall be allowed the fees prescribed in K.S.A. 28-110, and amendments thereto, for the sheriff and such other fees and costs as the court shall allow. All persons authorized under this subsection to serve, levy and execute process shall be considered an “officer” as used in K.S.A. 60-706 and 60-2401 and amendments thereto.

(4) In all cases when the person to be served, or an agent authorized by the person to accept service of process, refuses to receive copies thereof, the offer of the duly authorized process server to deliver copies thereof, and the refusal, shall be a sufficient service of the process.

(d) Acknowledgment or appearance. An acknowledgment of service on the summons is equivalent to service. The voluntary appearance by a defendant is equivalent to service as of the date of appearance.

History: L. 1963, ch. 303, 60-303; L. 1976, ch. 251, Â§ 14; L. 1982, ch. 244, Â§ 1; L. 1986, ch. 215, Â§ 14; L. 1990, ch. 202, Â§ 4; L. 1992, ch. 290, Â§ 1; L. 1994, ch. 273, Â§ 12; July 1.

60-304. Service of process, on whom made.

As used in this section, “serving” means making service by any of the methods described in K.S.A. 60-303, and amendments thereto, unless a specific method of making service is prescribed in this section. Except for service by publication under K.S.A. 60-307, and amendments thereto, service of process under this article shall be made as follows:

(a) Individual. Upon an individual other than a minor or a disabled person, by serving the individual or by serving an agent authorized by appointment or by law to receive service of process, but if the agent is one designated by statute to receive service, such further notice as the statute requires shall be given. Service by certified mail shall be addressed to an individual at the individual’s dwelling house or usual place of abode and to an authorized agent at the agent’s usual or designated address. If service by certified mail to the individual’s dwelling house or usual place of abode is refused or unclaimed, the sheriff, party or party’s attorney seeking service may complete service by certified mail, restricted delivery, by serving the individual at a business address after filing a return on service stating the certified mailing to the individual at such individual’s dwelling house or usual place of abode has been refused or unclaimed and a business address is known for such individual.

(b) Minor. Upon a minor, by serving the minor and also either the minor’s guardian or conservator if the minor has one within the state or the minor’s father or mother or other person having the minor’s care or control or with whom such minor resides, or if service cannot be made upon any of them, then as provided by order of the judge. Service by certified mail shall be addressed to an individual at the individual’s dwelling house or usual place of abode and to a corporate guardian or conservator at such guardian or conservator’s usual place of business.

(c) Disabled person. Upon a disabled person, as defined in K.S.A. 59-3002, and amendments thereto, by serving (1) such person’s guardian, conservator or a competent adult member of such person’s family with whom the person resides, or if such person is living in an institution, then the director or chief executive officer of the institution or, if service cannot be made upon any of them, then as provided by order of the judge, and (2) unless the judge otherwise orders, the disabled person. Service by certified mail shall be addressed to a director or chief executive officer of an institution at the institution, to any other individual at the individual’s dwelling house or usual place of abode, and to a corporate guardian or conservator at such guardian or conservator’s usual place of business.

(d) Governmental bodies. (1) Upon a county, by serving one of the county commissioners or the county clerk or the county treasurer; (2) upon a township, by serving the clerk or the trustee; (3) upon a city, by serving the clerk or the mayor; (4) upon any other public corporation, body politic, district or authority by serving the clerk or secretary or, if not to be found, to any officer, director or manager thereof; and (5) upon the state or any governmental agency of the state, when subject to suit, by serving the attorney general or an assistant attorney general. Service by certified mail shall be addressed to the appropriate official at the official’s governmental office. Income withholding orders for support and orders of garnishment of earnings of state officers and employees shall be served upon the state or governmental agency of the state in the manner provided by K.S.A. 60-723 and amendments thereto.

(e) Corporations and partnerships. Upon a domestic or foreign corporation or upon a partnership or other unincorporated association, when by law it may be sued as such, (1) by serving an officer, partner or a resident, managing or general agent, or (2) by leaving a copy of the summons and petition at any business office of the defendant with the person having charge thereof, or (3) by serving any agent authorized by appointment or required by law to receive service of process, and if the agent is one authorized by law to receive service and the law so requires, by also mailing a copy to the defendant. Service by certified mail on an officer, partner or agent shall be addressed to such person at the person’s usual place of business.

(f) Foreign corporation or foreign limited partnership resident agent. Service of process or service of any notice or demand required or permitted by law to be served on a foreign corporation or foreign limited partnership may also be made on the corporation or limited partnership by service thereof on the resident agent of the corporation or limited partnership. Whenever any foreign corporation or foreign limited partnership authorized to transact business or transacting business without authority in this state fails to appoint or maintain in this state a resident agent upon whom service of legal process or service of any such notice or demand may be had, whenever the resident agent of such corporation or limited partnership cannot with reasonable diligence be found at the registered office in this state or whenever the certificate of authority of any foreign corporation or foreign limited partnership is forfeited, the secretary of state shall be irrevocably authorized as the agent and representative of the foreign corporation or foreign limited partnership to accept service of any process or service of any notice or demand required or permitted by law to be served upon the corporation or limited partnership. Service on the secretary of state of any process, notice or demand against the foreign corporation or foreign limited partnership shall be made by delivering to and leaving with the secretary of state, or with any clerk having charge of the corporation department of the secretary of state’s office, the original and two copies of the process and two copies of the petition, notice or demand, or the clerk of the court may send the original process and two copies of both the process and the petition, notice or demand directly to the secretary of state by restricted mail. In the event that any process, notice or demand is served on the secretary of state, the secretary shall immediately cause a copy thereof to be forwarded by restricted mail, addressed to the corporation or limited partnership at its principal office as it appears in the records of the secretary of state, or to the registered or principal office of the corporation or limited partnership in the state of its incorporation or formation. The secretary of state shall keep a record of all processes, notices and demands served upon the secretary under this subsection, and shall record in the record the time of the service and the action of the secretary with reference to it. A fee of $30 shall be paid to the secretary of state by the party requesting the service of process, to cover the cost thereof. That fee shall not be included within or paid from any deposit as security for any costs or docket fee required by K.S.A. 60-2001 or 61-2501, and amendments thereto.

(g) Insurance companies or associations. Service of summons or other process may also be made on any insurance company or association, organized under the laws of the state of Kansas by service on the commissioner of insurance in the same manner as that provided for service on foreign insurance companies. All the requirements of law relating to service on foreign insurance companies so far as applicable shall also apply to domestic insurance companies.

(h) Service upon an employee. If the plaintiff or the plaintiff’s agent or attorney files an affidavit that to the best of the affiant’s knowledge and belief the defendant is a nonresident who is employed in this state, or that the place of residence of the defendant is unknown, the affiant may direct that the service of summons or other process be made by the sheriff or other duly authorized person by directing an officer, partner, managing or general agent, or the person having charge of the office or place of employment at which the defendant is employed, to make the defendant available for the purpose of permitting the sheriff or other duly authorized person to serve the summons or other process.

History: L. 1963, ch. 303, 60-304; L. 1965, ch. 354, Â§ 5; L. 1970, ch. 235, Â§ 1; L. 1973, ch. 234, Â§ 1; L. 1976, ch. 251, Â§ 15; L. 1981, ch. 232, Â§ 2; L. 1982, ch. 363, Â§ 9; L. 1983, ch. 88, Â§ 74; L. 1986, ch. 215, Â§ 15; L. 1990, ch. 202, Â§ 5; L. 1994, ch. 273, Â§ 1; July 1.

60-305. Process agents for public utilities, except motor common and contract carriers.

Every individual, partnership, association or corporation engaged in the business of transmission of communications, or the distribution of electricity, gas, water or petroleum products, which is subject to regulation by the state corporation commission, doing business in this state, shall designate, in accordance with K.S.A. 60-306, and amendments thereto, a resident of the state of Kansas upon whom process may be served. Any company or corporation may revoke the appointment and designation of such person upon whom process may be served, by appointing any other person qualified as above specified and filing an instrument of appointment as provided in K.S.A. 60-306, and amendments thereto. Every second or subsequent appointment shall also designate the person whose place is filled by such appointment. If any such company or corporation fails to designate and appoint such person, as required by this section, such process may be served as provided by the other provisions of this article 3 of chapter 60 of the Kansas Statutes Annotated, and amendments thereto.

History: L. 1963, ch. 303, 60-305; L. 1973, ch. 134, Â§ 49; L. 1982, ch. 245, Â§ 1; L. 1990, ch. 202, Â§ 6; L. 1992, ch. 67, Â§ 1; July 1.

60-305a. Process agents for motor common carriers and motor contract carriers.

Every individual, partnership, association or corporation engaged in the business of transportation as a common carrier or contract carrier, which is subject to regulation by the state corporation commission, doing business in this state shall designate some person residing in this state on whom all process and notices issued by any court of record may be served. In every case such individual, partnership, company or corporation shall file a certificate of the appointment and designation of such person in the office of the state corporation commission or as required pursuant to 49 U.S.C. Â§ 11506. The service of the process upon the person so designated, in any civil action, shall be deemed and held to be as effectual and complete as if service of such process were made upon the president or other chief officer of such individual, partnership, company or corporation. Any individual, partnership, company or corporation may revoke the appointment and designation of such person upon whom process may be served, by appointing any other person qualified as above specified and filing a certificate of such appointment. Every second or subsequent appointment shall also designate the person whose place is filled by such appointment. If any such individual, partnership, company or corporation fails to designate and appoint such person, as required by this section, such process may be served in any county as provided by provisions of article 3 of chapter 60 of Kansas Statutes Annotated, and amendments thereto.

History: L. 1982, ch. 245, Â§ 2; L. 1990, ch. 202, Â§ 7; L. 1993, ch. 263, Â§ 2; July 1.

60-306. Process service agent.

(a) Generally. Any individual, partnership, association or corporation may file in the office of the secretary of state an instrument appointing a resident of the state of Kansas as agent upon whom process for such person, fiduciary, company or corporation may be served, and consenting without limitation or exception other than as provided in this act that service of process may be issued out of any court upon such service agent as the agent of such individual, partnership, association or corporation. The instrument appointing such service agent shall be acknowledged, shall state the residence or office address of the service agent, and shall be recorded at length upon the register of service agents and shall state that such designation is made pursuant to this section.

(b) Change of address. An appointment shall be amended, in writing, and filed with the secretary of state whenever the name or address of the service agent is no longer accurate.

(c) Period of appointment. The appointment shall remain in effect for a period of three years from the date of its filing unless revoked in writing, executed in the same manner as such appointment, which revocation shall be recorded and indexed in the register of service agents.

(d) Collection of fee. The fee for filing an appointment, amendment or revocation shall be $20. The secretary of state shall remit to the state treasurer at least monthly all fees received pursuant to this section. The state treasurer shall deposit the entire amount in the state treasury and credit the amount to the information and copy service fee fund created in K.S.A. 75-438, and amendments thereto.

(e) Effect of service upon agent. When any person, fiduciary or corporation shall have appointed such a service agent and such appointment remains unexpired and unrevoked, process issued in any action or proceeding against such person, fiduciary or corporation in any court may be served upon such service agent. Service by publication shall be of no force or effect where an appointment of service agent made and filed as herein provided remains in effect, unless process showing upon its face the name and address of such service agent shall have been duly issued to the proper officer of the county of such service agent’s residence as shown on the register of service agents and returned by such officer to whom it has been directed, with a notation, that such officer cannot find such service agent in the county. Such notation shall also state the name of the service agent who could not be found.

History: L. 1963, ch. 303, 60-306; L. 1976, ch. 196, Â§ 3; L. 1992, ch. 67, Â§ 2; July 1.

60-307. Service by publication.

(a) When permissible. Service may be made by publication in any of the following cases:

(1) In actions to obtain a divorce, maintenance or an annulment of the contract of marriage if the defendant resides out of the state or if the party with due diligence is unable to make service of summons upon the defendant within the state.

(2) In actions brought against a person who is a nonresident of the state or a foreign corporation having in this state property or debts owing to the person sought to be taken by any of provisional remedies or to be appropriated in any way.

(3) In actions which relate to or the subject of which is real or personal property in this state, if any defendant has or claims a lien or interest, vested or contingent, in the property, or the relief demanded consists wholly or partly in excluding the defendant from any interest in the property, or in actions for partition or for foreclosure of a lien, if the defendant is a nonresident of the state or a foreign corporation or if the party with due diligence is unable to make service of summons upon the defendant within the state.

(4) In all actions in which the defendant, being a resident of this state, has departed from this state or from the county of the defendant’s residence, with the intent to delay or defraud creditors or to avoid the service of a summons, or hides in the state or county with that intent, or in an action against a domestic corporation which has not been legally dissolved, if the officers thereof have departed from the state or cannot be found.

(5) In any of the actions mentioned in this subsection, publication service may be had on any of the following who are made defendants as such: The unknown heirs, executors, administrators, devisees, trustees, creditors and assigns of any deceased defendants; the unknown spouses of any defendants; the unknown officers, successors, trustees, creditors and assigns of any defendants that are existing, dissolved or dormant corporations; the unknown executors, administrators, devisees, trustees, creditors, successors and assigns of any defendants that are or were partners or in partnership; the unknown guardians, conservators and trustees of any defendants that are minors or are under any legal disability; and the unknown heirs, executors, administrators, devisees, trustees, creditors and assigns of any person alleged to be deceased.

(b) Construction and effect. The process provisions of this section shall be construed as separate and permissive methods of obtaining service. If the defendant served in accordance with this section does not appear, judgment may be rendered affecting the property, res or status within the jurisdiction of the court as to the defendant, but the service shall not warrant a personal judgment against the defendant.

(c) Affidavit for service by publication. Before service by publication as provided in this section can be made, one of the parties or the party’s attorney shall file an affidavit stating any of the following facts that are applicable:

(1) The residences of all named defendants sought to be served, if known, and the names of all defendants whose residences are unknown after reasonable effort to ascertain the same.

(2) The affiant has made a reasonable but unsuccessful effort to ascertain the names and residences of any defendants sought to be served as unknown parties in accordance with subsection (a)(5).

(3) The party seeking service by publication is unable to procure service of summons on the defendants in this state.

(4) The case is one of those mentioned in clauses (1) through (4) of subsection (a). The affidavit shall be in substantially the following form:

(Name of Court)

______________, Plaintiff, vs.

______________, (Name of first defendant), et al. Defendants.

(affidavit)

State of Kansas, ______ County, ss:

______, of lawful age, being first duly sworn, states that

1. The affiant is (the plaintiff or defendant, or an attorney for the plaintiff or defendant) in the above action and makes this affidavit for the purpose of obtaining service by publication upon the parties named herein.

2. The defendants on whom service by publication is sought and whose names and addresses are known are as follows: (Names and addresses).

3. The defendants on whom service by publication is sought whose names are known but whose residences are unknown notwithstanding reasonable effort of the affiant to ascertain the same are as follows: (Names).

4. The affiant does not know and with reasonable diligence is unable to ascertain the names or residences of any of those classes of unknown persons who are or may be concerned in the subject of this litigation, as mentioned in subsection (a)(5) of K.S.A. 60-307, and amendments thereto, but that the affiant desires to include all such in the affiant’s constructive service.

5. The affiant is unable to procure service of summons on any of the specified defendants within this state.

6. This action is one of those mentioned in K.S.A. subsections (a)(1) through (4) of 60-307, and amendments thereto. ____________

(Jurat)(Signature)

When the affidavit is filed, service may proceed by publication.

(d) Publication; form of notice; description of property, when. The notice shall be published once a week for three consecutive weeks in some newspaper published in the county where the petition is filed and which newspaper is authorized by law to publish legal notices. If there is no newspaper published in the county, the notice may be published in a newspaper having general circulation in the county. The notice must name the defendants to be served and notify them and all other persons who are or may be concerned that the defendants have been sued in a named court and must answer or plead otherwise to the petition, or other pleading, filed in the court, on or before a date to be stated, which date shall be not less than 41 days from the date the notice is first published, or the petition or other pleading filed will be taken as true, and judgment, the nature of which shall be stated, will be rendered accordingly. The notice shall be in substantially the following form:

Notice of Suit

The state of Kansas to (names of defendants to whom notice is given) and all other persons who are or may be concerned:

You are hereby notified that a (petition or other pleading) has been filed in (name of court) by (name of pleader) praying for (state briefly the nature of the pleading and the judgment or other relief sought), and you are hereby required to plead to the (petition or other pleading) on or before ______________, 20__, in the court at __________, Kansas. If you fail to plead, judgment and decree will be entered in due course upon the (petition or other pleading).

_____________________________________ (Name of plaintiff or other party.)

Where the action affects property, the notice need not expressly describe the property, unless the description is otherwise required by law, but the property may be identified by reference to the pleading.

(e) Mailing copy of notice. The party seeking to secure service by publication shall, within seven days after the first publication, mail a copy of the publication notice to each defendant whose address is stated in the affidavit for service by publication.

(f) When service complete. Service by publication shall be deemed complete when it has been made in the manner and for the time prescribed in subsections (d) and (e), and the service shall be proved. No judgment by default shall be entered on the service until proof of service is made, approved by the court and filed.

History: L. 1963, ch. 303, 60-307; L. 1965, ch. 355, Â§ 1; L. 1970, ch. 232, Â§ 2; L. 1982, ch. 152, Â§ 22; L. 1990, ch. 202, Â§ 8; L. 1994, ch. 68, Â§ 3; July 1.

60-308. Service outside state.

(a) Proof and effect.

(1) Service of process may be made upon any party outside the state. If upon a person domiciled in this state or upon a person who has submitted to the jurisdiction of the courts of this state, it shall have the force and effect of service of process within this state; otherwise it shall have the force and effect of service by publication.

(2) The service of process shall be made (A) in the same manner as service within this state, by any officer authorized to make service of process in this state or in the state where the defendant is served or (B) by sending a copy of the process and of the petition or other document to the person to be served in the manner provided in subsection (e). No order of a court is required. An affidavit, or any other competent proofs, of the server shall be filed stating the time, manner and place of service. The court may consider the affidavit, or any other competent proofs, in determining whether service has been properly made.

(3) No default shall be entered until the expiration of at least 30 days after service. A default judgment rendered on service outside this state may be set aside only on a showing which would be timely and sufficient to set aside a default judgment under subsection (b) of K.S.A. 60-260, and amendments thereto.

(b) Submitting to jurisdiction – process. Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person and, if an individual, the individual’s personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts:

(1) Transaction of any business within this state;

(2) commission of a tortious act within this state;

(3) ownership, use or possession of any real estate situated in this state;

(4) contracting to insure any person, property or risk located within this state at the time of contracting;

(5) entering into an express or implied contract, by mail or otherwise, with a resident of this state to be performed in whole or in part by either party in this state;

(6) acting within this state as director, manager, trustee or other officer of any corporation organized under the laws of or having a place of business within this state or acting as executor or administrator of any estate within this state;

(7) causing to persons or property within this state any injury arising out of an act or omission outside of this state by the defendant if, at the time of the injury either (A) the defendant was engaged in solicitation or service activities within this state; or (B) products, materials or things processed, serviced or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of trade or use;

(8) living in the marital relationship within the state notwithstanding subsequent departure from the state, as to all obligations arising for maintenance, child support or property settlement under article 16 of this chapter, if the other party to the marital relationship continues to reside in the state;

(9) serving as the insurer of any person at the time of any act by the person which is the subject of an action in a court of competent jurisdiction within the state of Kansas which results in judgment being taken against the person;

(10) performing an act of sexual intercourse within the state, as to an action against a person seeking to adjudge the person to be a parent of a child and as to an action to require the person to provide support for a child as provided by law, if (A) the conception of the child results from the act and (B) the other party to the act or the child continues to reside in the state; or

(11) entering into an express or implied arrangement, whether by contract, tariff or otherwise, with a corporation or partnership, either general or limited, residing or doing business in this state under which such corporation or partnership has supplied transportation services, or communication services or equipment, including, without limitation, telephonic communication services, for a business or commercial user where the services supplied to such user are managed, operated or monitored within the state of Kansas, provided that such person is put on reasonable notice that arranging or continuing such transportation services or telecommunication services may result in the extension of jurisdiction pursuant to this section.

(c) Service of process upon any person who is subject to the jurisdiction of the courts of this state, as provided in subsection (b), may be made by serving the process upon the defendant outside this state, as provided in subsection (a)(2), with the same force and effect as though process had been served within this state, but only causes of action arising from acts enumerated in subsection (b) may be asserted against a defendant in an action in which jurisdiction over the defendant is based upon this subsection.

(d) Nothing contained in this section limits or affects the right to serve any process in any other manner provided by law.

(e) Service by certified mail. Service of any out-of-state process may be by certified mail, evidenced by return receipt signed by any person or by restricted delivery. The attorney for the party seeking service or the party, if the party is not represented by an attorney, shall cause a copy of the process and petition or other document to be placed in an envelope addressed to the person to be served in accordance with K.S.A. 60-304, and amendments thereto, adequate postage to be affixed and the sealed envelope to be placed in the United States mail as certified mail return receipt requested with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. The party’s attorney or the party, if the party is not represented by an attorney, shall execute a return on service stating the nature of the process, the date on which the process was mailed, and the name and address on the envelope containing the process mailed as certified mail return receipt requested. The party or the party’s attorney shall file the return on service and the return receipt or return envelope in the records of the action. Service of process shall be considered obtained under K.S.A. 60-203, and amendments thereto, upon the delivery of the certified mail envelope. If the certified mail envelope is returned with an endorsement showing refusal of delivery, the serving party or the party’s attorney may send a copy of the process and petition or other document to be served to the defendant by ordinary, first-class mail. The mailing shall be evidenced by a certificate of mailing which shall be filed with the clerk. Service shall be considered obtained upon the mailing by ordinary, first-class mail. Failure to claim certified mail service is not refusal of service within the meaning of this subsection.

History: L. 1963, ch. 303, 60-308; L. 1971, ch. 195, Â§ 1; L. 1972, ch. 221, Â§ 1; L. 1976, ch. 253, Â§ 1; L. 1982, ch. 152, Â§ 23; L. 1986, ch. 215, Â§ 16; L. 1989, ch. 178, Â§ 1; L. 1990, ch. 202, Â§ 9; Jan. 1, 1991.

60-310. Procedure where only part of defendants served.

(a) Same. Where the action is against two or more defendants, and one or more shall have been served, but not all of them, the plaintiff may proceed as follows: First. If the action be against defendants jointly indebted upon contract, the plaintiff may proceed against the defendants served, unless the court otherwise direct; and if he or she recover judgment it may be entered against all the defendants thus jointly indebted so far only as that it may be enforced against the joint property of all, and the separate property of the defendants served. Second. If the action be against defendants severally liable, the plaintiff may, without prejudice to his or her rights against those not served, proceed against the defendants served in the same manner as if they were the only defendants.

(b) Same. Nothing in this section shall be so construed as to make a judgment against one or more defendants jointly or severally liable a bar to another action against those not served.

History: L. 1963, ch. 303, 60-310; Jan. 1, 1964.

60-311. Where process may be served. All process issued for service from any court within the state may be served anywhere within the territorial limits of the state and, when authorized by law, may be served outside this state.

History: L. 1963, ch. 303, 60-311; L. 1990, ch. 202, Â§ 10; Jan. 1, 1991.

60-312. Proof of service. Proof of service shall be made as follows:

(a) Personal and residence service.

(1) Every officer to whom summons or other process shall be delivered for service within or without the state, shall make a statement subject to penalty of perjury as provided in K.S.A. 21-3805 and amendments thereto as to the time, place and manner of service of such writ.

(2) If service of such process is directed to and delivered to a person, other than an officer, for service, such person shall make affidavit as to the time, place and manner of such person’s service thereof.

(b) Service by certified mail. Service by certified mail shall be proven in the manner provided by subsection (b) of K.S.A. 60-303 or subsection (e) of K.S.A. 60-308, and amendments thereto.

(c) Publication service. Service by publication shall be proven by an affidavit showing the dates upon which and the newspaper in which the notice of publication was published. A copy of the notice shall be attached to the affidavit which shall be filed in the cause. When mailing of copies of the publication notice is required in accordance with subsection (e) of K.S.A. 60-307 and amendments thereto, the proof of such mailing shall be by affidavit of the person who mailed such copies and such affidavit shall be filed with the clerk of the court in which the action has been filed. If such mailing was by certified mail, the return receipt shall be made a part of the affidavit and filed therewith.

(d) Time for return. The officer or other person receiving a summons or other process shall make a return of service promptly and in any event within 10 days after the service is effected. If the process cannot be served it shall be returned to the court within 30 days after the date of issue with a statement of the reason for the failure to serve the same, except the time for service thereof may be extended up to 90 days from the date of issue by order of the court or judge of the court to which it is returnable. Immediately upon receipt of the return upon any summons or other process by the clerk of the court issuing the same, such clerk shall mail a copy of such return to the attorney for the party requesting the issuance of such summons or other process or, if such party has no attorney, then to the requesting party’s self.

History: L. 1963, ch. 303, 60-312; L. 1969, ch. 283, Â§ 1; L. 1970, ch. 235, Â§ 2; amended by Supreme Court order dated July 28, 1976; L. 1986, ch. 215, Â§ 17; L. 1990, ch. 202, Â§ 11; L. 1998, ch. 100, Â§ 1; July 1.

Case Notes:

1. Special process server must be authorized to make service of summons in state where defendant served. Hall v. Quivira Square Dev. Co., 675 P.2d 931 (1984).

2. Whether service void because of out-of-state corporate process server not officer of state in which service made is examined. In re Marriage of Welliver, 869 P.2d 653 (1994).

3. Untimely return of service does not void an otherwise valid service; the rights of defendant were not impaired. Cook v. Freeman, 825 P.2d 1185 (1992).

60-313. Amendment of return. At any time in his or her discretion and upon such terms as he or she deems just, the judge may allow any process, return 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. History: L. 1963, ch. 303, 60-313; Jan. 1, 1964.

60-245. Subpoenas.

(a) Form; issuance.

(1) Every subpoena shall:

(A) State the name of the court from which it is issued;

(B) state the title of the action, the name of the court in which it is pending and the file number of the action;

(C) command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place specified in the subpoena; and

(D) set forth the text of subsections (c) and (d) of this section.

A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately. Subpoena and production of records of a business which is not a party shall be in accordance with K.S.A. 60-245a and amendments thereto.

(2) A subpoena commanding attendance at a trial or hearing shall issue from the district court in which the hearing or trial is to be held. A subpoena for attendance at a deposition shall issue from the district court in which the action is pending or the officer before whom the deposition is to be taken or, if the deposition is to be taken outside the state, from an officer authorized by the law of the other state to issue the subpoena. If separate from a subpoena commanding the attendance of a person, a subpoena for production or inspection shall issue from the district court in which the action is pending or, if the production or inspection is to be made outside the state, an officer authorized by the law of the other state to issue the subpoena.

(3) Every subpoena issued by the court shall be issued by the clerk under the seal of the court or by a judge. Upon request of a party, the clerk shall issue a blank subpoena. The blank subpoena shall bear the seal of the court, the title and file number of the action and the clerk’s signature or a facsimile of the clerk’s signature. The party to whom a blank subpoena is issued shall fill it in before service.

(b) Service. Service of a subpoena upon a person named therein may be made anywhere within the state, shall be made in accordance with K.S.A. 60-303, and amendments thereto, and shall, if the person’s attendance is commanded, be accompanied by the fees for one day’s attendance and the mileage allowed by law. When sought independently of a deposition, prior notice of any commanded production of documents or inspection of premises before trial shall be served on each party in the manner prescribed by subsection (b) of K.S.A. 60-205 and amendments thereto.

(2) (A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.

(B) Subject to subsection (d)(2), a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.

(3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it:

(i) fails to allow reasonable time for compliance;

(ii) requires a resident of this state who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business in person or requires a nonresident who is not a party or an officer of a party to travel to a place more than 100 miles from the place where the nonresident was served with the subpoena, is employed or regularly transacts business, except that, subject to the provisions of subsection (c)(3)(B)(iii), such a nonparty may in order to attend trial be commanded to travel to the place of trial;

(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or

(iv) subjects a person to undue burden.

(B) If a subpoena:

(i) requires disclosure of a trade secret or other confidential research, development or commercial information; or

(4) A person confined in prison may be required to appear for examination by deposition only in the county where the person is imprisoned.

(d) Duties in responding to subpoena.

(2) When information subject to a subpoena is withheld on a claim that such information is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications or things not produced that is sufficient to enable the demanding party to contest the claim.

(e) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon the person may be considered a contempt of the court in which the action is pending or the court of the county in which the deposition is to be taken. Punishment for contempt shall be in accordance with K.S.A. 20-1204 and amendments thereto. An adequate cause for failure to obey exists when a subpoena purports to require a nonparty to attend or produce at a place not within the limits provided by subsection (c)(3)(A)(iii).

History: L. 1963, ch. 303, 60-245; amended by Supreme Court order dated July 20, 1972; amended by Supreme Court order dated July 28, 1976; L. 1982, ch. 243, Â§ 1; L. 1985, ch. 196, Â§ 2; L. 1990, ch. 202, Â§ 2; L. 1997, ch. 173, Â§ 24; July 1.

60-245a. Subpoena of records of a business not a party.

(a) As used in this section:

(1) “Business” means any kind of business, profession, occupation, calling or operation of institutions, whether carried on for profit or not.

(2) “Business records” means writings made by personnel or staff of a business, or persons acting under their control, which are memoranda or records of acts, conditions or events made in the regular course of business at or about the time of the act, condition or event recorded.

(b) A subpoena duces tecum which commands the production of business records in an action in which the business is not a party shall inform the person to whom it is directed that the person may serve upon the attorney designated in the subpoena written objection to production of any or all of the business records designated in the subpoena within 14 days after the service of the subpoena or at or before the time for compliance, if the time is less than 14 days after service. If such objection is made, the business records need not be produced except pursuant to an order of the court upon motion with notice to the person to whom the subpoena was directed. Unless the personal attendance of a custodian of the business records and the production of original business records are required under subsection (d), it is sufficient compliance with a subpoena of business records if a custodian of the business records delivers to the clerk of the court by mail or otherwise a true and correct copy of all the records described in the subpoena and mails a copy of the affidavit accompanying the records to the party or attorney requesting them within 14 days after receipt of the subpoena. The records described in the subpoena shall be accompanied by the affidavit of a custodian of the records, stating in substance each of the following: (1) The affiant is a duly authorized custodian of the records and has authority to certify records; (2) the copy is a true copy of all the records described in the subpoena; and (3) the records were prepared by the personnel or staff of the business, or persons acting under their control, in the regular course of the business at or about the time of the act, condition or event recorded. If the business has none of the records described in the subpoena, or only part thereof, the affiant shall so state in the affidavit and shall send only those records of which the affiant has custody. When more than one person has knowledge of the facts required to be stated in the affidavit, more than one affidavit may be made. The copy of the records shall be separately enclosed in a sealed envelope or wrapper on which the title and number of the action, name and address of the witness and the date of the subpoena are clearly inscribed. If return of the copy is desired, the words “return requested” must be inscribed clearly on the sealed envelope or wrapper. The sealed envelope or wrapper shall be delivered to the clerk of the court. The reasonable costs of copying the records may be demanded of the party causing the subpoena to be issued. If the costs are demanded, the records need not be produced until the costs of copying are advanced.

(c) The subpoena shall be accompanied by an affidavit to be used by the records custodian. The subpoena and affidavit shall be in substantially the following form:

Subpoena of Business Records

State of Kansas

County of ___________

(1) You are commanded to produce the records listed below before ____________________ (Officer at Deposition)(Judge of the District Court) at ____________________(Address) in the City of _________, County of ______________, on the _____ day of _____________, 20__, at ____ o’clock __ m., and to testify on behalf of the ___________________ in an action now pending between ________________, plaintiff, and ______________, defendant. Failure to comply with this subpoena may be deemed a contempt of the court.

(2) Records to be produced:

____________________

(3) You may make written objection to the production of any or all of the records listed above by serving such written objection upon ___________________(Attorney) at __________________________(Attorney’s Address) (within 14 days after service of this subpoena) (on or before ___________, 20__). If such objection is made, the records need not be produced except upon order of the court.

(4) Instead of appearing at the time and place listed above, it is sufficient compliance with this subpoena if a custodian of the business records delivers to the clerk of the court by mail or otherwise a true and correct copy of all the records described above and mails a copy of the affidavit below to _______________________(Requesting Party or Attorney) at___________________________(Address of Party or Attorney) within 14 days after receipt of this subpoena.

(5) The copy of the records shall be separately enclosed in a sealed envelope or wrapper on which the title and number of the action, name and address of the witness and the date of this subpoena are clearly inscribed. If return of the copy is desired, the words “return requested” must be inscribed clearly on the sealed envelope or wrapper. The sealed envelope or wrapper shall be delivered to the clerk of the court.

(6) The records described in this subpoena shall be accompanied by the affidavit of a custodian of the records, a form for which is attached to this subpoena.

(7) If the business has none of the records described in this subpoena, or only part thereof, the affidavit shall so state, and the custodian shall send only those records of which the custodian has custody. When more than one person has knowledge of the facts required to be stated in the affidavit, more than one affidavit may be made.

(8) The reasonable costs of copying the records may be demanded of the party causing this subpoena to be issued. If the costs are demanded, the records need not be produced until the costs of copying are advanced.

(9) The copy of the records will not be returned unless requested by the witness.

___________________________

Clerk of the District Court

[Seal of the District Court]

Dated __________, 20__.

Affidavit of Custodian of Business Records

State of ___________________

County of __________________

I, _____________, being first duly sworn, on oath, depose and say that:

(1) I am a duly authorized custodian of the business records of ____________ and have the authority to certify those records.

(2) The copy of the records attached to this affidavit is a true copy of the records described in the subpoena.

(3) The records were prepared by the personnel or staff of the business, or persons acting under their control, in the regular course of the business at or about the time of the act, condition or event recorded.

______________________________

Signature of Custodian

Subscribed and sworn to before the undersigned on _________.

____________________________

Notary Public

My Appointment Expires: ______________________

Certificate of Mailing

I hereby certify that on _________, 20____, I mailed a copy of the above affidavit to ______________________________(Requesting Party or Attorney) at ______________________________(Address of Party or Attorney) by depositing it with the United States Postal Service for delivery with postage prepaid.

_________________________

Signature of Custodian

Subscribed and sworn to before the undersigned on ____________.

___________________________

Notary Public

My Appointment Expires: _____________.

(d) Any party may require the personal attendance of a custodian of business records and the production of original business records by causing a subpoena duces tecum to be issued which contains the following statements in lieu of paragraphs (4), (5), (6), (7) and (8) of the subpoena form described in subsection (c):

The personal attendance of a custodian of business records and the production of original records is required by this subpoena. The procedure for delivering copies of the records to the clerk of the court shall not be deemed sufficient compliance with this subpoena and should be disregarded. A custodian of the records must personally appear with the original records.

(e) Notice of the issuance of a subpoena pursuant to this section where the attendance of the custodian of the business records is not required shall be given to all parties to the action at least 10 days prior to the issuance thereof. A copy of the proposed subpoena shall also be served upon all parties along with such notice. In the event any party objects to the production of the documents sought by such subpoena prior to its issuance, the subpoena shall not be issued until further order of the court in which the action is pending.

(f) Upon receipt of business records the clerk of the court shall so notify the party who caused the subpoena for the business records to be issued. If receipt of the records makes the taking of a deposition unnecessary, the party shall cancel the deposition and shall notify the other parties to the action in writing of the receipt of the records and the cancellation of the deposition. After the copy of the record is filed, a party desiring to inspect or copy it shall give reasonable notice to every other party to the action. The notice shall state the time and place of inspection. Records which are not introduced in evidence or required as part of the record shall be destroyed or returned to the custodian of the records who submitted them if return has been requested.

History: L. 1985, ch. 196, Â§ 1; L. 1997, ch. 173, Â§ 25; July 1.

Chapter 60, Article 3 – Process60-303. Methods of service of process.(a) Methods of service of process within this state, except service by publication as provided in K.S.A. 60-307, and amendments thereto, are described in this section. Methods of out-of-state service of process are described in K.S.A. 60-308, and amendments thereto.(b) Service by certified mail. Except if the attorney for the party or the party, if the party is not represented by an attorney, requests personal or residence service pursuant to subsection (c); if the attorney or the party requesting service elects to serve process by certified mail pursuant to this subsection; as provided in K.S.A. 60-903, 60-2401 or 60-3104, and amendments thereto; or as otherwise provided by law, the sheriff of the county wherein the action is filed shall serve any process by certified mail, evidenced by return receipt signed by any person or by restricted delivery, unless otherwise permitted by this article. The sheriff, attorney for the party seeking service or the party, if the party is not represented by an attorney, shall cause a copy of the process and petition or other document to be placed in an envelope addressed to the person to be served in accordance with K.S.A. 60-304, and amendments thereto, adequate postage to be affixed and the sealed envelope to be placed in the United States mail as certified mail return receipt requested with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. The sheriff, party’s attorney or the party, if the party is not represented by an attorney, shall execute a return on service stating the nature of the process, the date on which the process was mailed, and the name and address on the envelope containing the process mailed as certified mail return receipt requested. The sheriff, party or the party’s attorney shall file the return on service and the return receipt or return envelope in the records of the action. Service of process shall be considered obtained under K.S.A. 60-203, and amendments thereto, upon the delivery of the certified mail envelope. If the certified mail envelope is returned with an endorsement showing refusal of delivery, the sheriff, serving party or the party’s attorney shall send a copy of the process and petition or other document to be served to the defendant by ordinary, first-class mail. The mailing shall be evidenced by a certificate of mailing which shall be filed with the clerk. Service shall be considered obtained upon the mailing by ordinary, first-class mail. Failure to claim certified mail service is not refusal of service within the meaning of this subsection.(c) Personal and residence service.(1) When the plaintiff files a written request with the clerk for service other than by certified mail, service of process shall be made by personal or residence service. Personal service shall be made by delivering or offering to deliver a copy of the process and accompanying documents to the person to be served. Residence service shall be made by leaving a copy of the process and petition, or other document to be served, at the dwelling house or usual place of abode of the person to be served with some person of suitable age and discretion residing therein. If service cannot be made upon an individual, other than a minor or a disabled person, by personal or residence service, service may be made by leaving a copy of the process and petition, or other document to be served, at the defendant’s dwelling house or usual place of abode and mailing a notice that such copy has been left at such house or place of abode to the individual by first-class mail.(2) When process is to be served under this subsection, the clerk of the court shall deliver the process and sufficient copies of the process and petition, or other document to be served, to the sheriff of the county where the process is to be served or, if requested, to a person appointed to serve process or to the plaintiff’s attorney.(3) Service, levy and execution of all process under this subsection, including, but not limited to, writs of execution, orders of attachment, replevin orders, orders for delivery, writs of restitution and writs of assistance, shall be made by a sheriff within the sheriff’s county, by the sheriff’s deputy, by an attorney admitted to the practice of law before the supreme court of Kansas or by some person appointed as a process server by a judge or clerk of the district court, except that a subpoena may also be served by any other person who is not a party and is not less than 18 years of age. Process servers shall be appointed freely and may be authorized either to serve process in a single case or in cases generally during a fixed period of time. A process server or an authorized attorney may make the service anywhere in or out of the state and shall be allowed the fees prescribed in K.S.A. 28-110, and amendments thereto, for the sheriff and such other fees and costs as the court shall allow. All persons authorized under this subsection to serve, levy and execute process shall be considered an “officer” as used in K.S.A. 60-706 and 60-2401 and amendments thereto.(4) In all cases when the person to be served, or an agent authorized by the person to accept service of process, refuses to receive copies thereof, the offer of the duly authorized process server to deliver copies thereof, and the refusal, shall be a sufficient service of the process.(d) Acknowledgment or appearance. An acknowledgment of service on the summons is equivalent to service. The voluntary appearance by a defendant is equivalent to service as of the date of appearance.History: L. 1963, ch. 303, 60-303; L. 1976, ch. 251, Â§ 14; L. 1982, ch. 244, Â§ 1; L. 1986, ch. 215, Â§ 14; L. 1990, ch. 202, Â§ 4; L. 1992, ch. 290, Â§ 1; L. 1994, ch. 273, Â§ 12; July 1.60-304. Service of process, on whom made.As used in this section, “serving” means making service by any of the methods described in K.S.A. 60-303, and amendments thereto, unless a specific method of making service is prescribed in this section. Except for service by publication under K.S.A. 60-307, and amendments thereto, service of process under this article shall be made as follows:(a) Individual. Upon an individual other than a minor or a disabled person, by serving the individual or by serving an agent authorized by appointment or by law to receive service of process, but if the agent is one designated by statute to receive service, such further notice as the statute requires shall be given. Service by certified mail shall be addressed to an individual at the individual’s dwelling house or usual place of abode and to an authorized agent at the agent’s usual or designated address. If service by certified mail to the individual’s dwelling house or usual place of abode is refused or unclaimed, the sheriff, party or party’s attorney seeking service may complete service by certified mail, restricted delivery, by serving the individual at a business address after filing a return on service stating the certified mailing to the individual at such individual’s dwelling house or usual place of abode has been refused or unclaimed and a business address is known for such individual.(b) Minor. Upon a minor, by serving the minor and also either the minor’s guardian or conservator if the minor has one within the state or the minor’s father or mother or other person having the minor’s care or control or with whom such minor resides, or if service cannot be made upon any of them, then as provided by order of the judge. Service by certified mail shall be addressed to an individual at the individual’s dwelling house or usual place of abode and to a corporate guardian or conservator at such guardian or conservator’s usual place of business.(c) Disabled person. Upon a disabled person, as defined in K.S.A. 59-3002, and amendments thereto, by serving (1) such person’s guardian, conservator or a competent adult member of such person’s family with whom the person resides, or if such person is living in an institution, then the director or chief executive officer of the institution or, if service cannot be made upon any of them, then as provided by order of the judge, and (2) unless the judge otherwise orders, the disabled person. Service by certified mail shall be addressed to a director or chief executive officer of an institution at the institution, to any other individual at the individual’s dwelling house or usual place of abode, and to a corporate guardian or conservator at such guardian or conservator’s usual place of business.(d) Governmental bodies. (1) Upon a county, by serving one of the county commissioners or the county clerk or the county treasurer; (2) upon a township, by serving the clerk or the trustee; (3) upon a city, by serving the clerk or the mayor; (4) upon any other public corporation, body politic, district or authority by serving the clerk or secretary or, if not to be found, to any officer, director or manager thereof; and (5) upon the state or any governmental agency of the state, when subject to suit, by serving the attorney general or an assistant attorney general. Service by certified mail shall be addressed to the appropriate official at the official’s governmental office. Income withholding orders for support and orders of garnishment of earnings of state officers and employees shall be served upon the state or governmental agency of the state in the manner provided by K.S.A. 60-723 and amendments thereto.(e) Corporations and partnerships. Upon a domestic or foreign corporation or upon a partnership or other unincorporated association, when by law it may be sued as such, (1) by serving an officer, partner or a resident, managing or general agent, or (2) by leaving a copy of the summons and petition at any business office of the defendant with the person having charge thereof, or (3) by serving any agent authorized by appointment or required by law to receive service of process, and if the agent is one authorized by law to receive service and the law so requires, by also mailing a copy to the defendant. Service by certified mail on an officer, partner or agent shall be addressed to such person at the person’s usual place of business.(f) Foreign corporation or foreign limited partnership resident agent. Service of process or service of any notice or demand required or permitted by law to be served on a foreign corporation or foreign limited partnership may also be made on the corporation or limited partnership by service thereof on the resident agent of the corporation or limited partnership. Whenever any foreign corporation or foreign limited partnership authorized to transact business or transacting business without authority in this state fails to appoint or maintain in this state a resident agent upon whom service of legal process or service of any such notice or demand may be had, whenever the resident agent of such corporation or limited partnership cannot with reasonable diligence be found at the registered office in this state or whenever the certificate of authority of any foreign corporation or foreign limited partnership is forfeited, the secretary of state shall be irrevocably authorized as the agent and representative of the foreign corporation or foreign limited partnership to accept service of any process or service of any notice or demand required or permitted by law to be served upon the corporation or limited partnership. Service on the secretary of state of any process, notice or demand against the foreign corporation or foreign limited partnership shall be made by delivering to and leaving with the secretary of state, or with any clerk having charge of the corporation department of the secretary of state’s office, the original and two copies of the process and two copies of the petition, notice or demand, or the clerk of the court may send the original process and two copies of both the process and the petition, notice or demand directly to the secretary of state by restricted mail. In the event that any process, notice or demand is served on the secretary of state, the secretary shall immediately cause a copy thereof to be forwarded by restricted mail, addressed to the corporation or limited partnership at its principal office as it appears in the records of the secretary of state, or to the registered or principal office of the corporation or limited partnership in the state of its incorporation or formation. The secretary of state shall keep a record of all processes, notices and demands served upon the secretary under this subsection, and shall record in the record the time of the service and the action of the secretary with reference to it. A fee of $30 shall be paid to the secretary of state by the party requesting the service of process, to cover the cost thereof. That fee shall not be included within or paid from any deposit as security for any costs or docket fee required by K.S.A. 60-2001 or 61-2501, and amendments thereto.(g) Insurance companies or associations. Service of summons or other process may also be made on any insurance company or association, organized under the laws of the state of Kansas by service on the commissioner of insurance in the same manner as that provided for service on foreign insurance companies. All the requirements of law relating to service on foreign insurance companies so far as applicable shall also apply to domestic insurance companies.(h) Service upon an employee. If the plaintiff or the plaintiff’s agent or attorney files an affidavit that to the best of the affiant’s knowledge and belief the defendant is a nonresident who is employed in this state, or that the place of residence of the defendant is unknown, the affiant may direct that the service of summons or other process be made by the sheriff or other duly authorized person by directing an officer, partner, managing or general agent, or the person having charge of the office or place of employment at which the defendant is employed, to make the defendant available for the purpose of permitting the sheriff or other duly authorized person to serve the summons or other process.History: L. 1963, ch. 303, 60-304; L. 1965, ch. 354, Â§ 5; L. 1970, ch. 235, Â§ 1; L. 1973, ch. 234, Â§ 1; L. 1976, ch. 251, Â§ 15; L. 1981, ch. 232, Â§ 2; L. 1982, ch. 363, Â§ 9; L. 1983, ch. 88, Â§ 74; L. 1986, ch. 215, Â§ 15; L. 1990, ch. 202, Â§ 5; L. 1994, ch. 273, Â§ 1; July 1.60-305. Process agents for public utilities, except motor common and contract carriers.Every individual, partnership, association or corporation engaged in the business of transmission of communications, or the distribution of electricity, gas, water or petroleum products, which is subject to regulation by the state corporation commission, doing business in this state, shall designate, in accordance with K.S.A. 60-306, and amendments thereto, a resident of the state of Kansas upon whom process may be served. Any company or corporation may revoke the appointment and designation of such person upon whom process may be served, by appointing any other person qualified as above specified and filing an instrument of appointment as provided in K.S.A. 60-306, and amendments thereto. Every second or subsequent appointment shall also designate the person whose place is filled by such appointment. If any such company or corporation fails to designate and appoint such person, as required by this section, such process may be served as provided by the other provisions of this article 3 of chapter 60 of the Kansas Statutes Annotated, and amendments thereto.History: L. 1963, ch. 303, 60-305; L. 1973, ch. 134, Â§ 49; L. 1982, ch. 245, Â§ 1; L. 1990, ch. 202, Â§ 6; L. 1992, ch. 67, Â§ 1; July 1.60-305a. Process agents for motor common carriers and motor contract carriers.Every individual, partnership, association or corporation engaged in the business of transportation as a common carrier or contract carrier, which is subject to regulation by the state corporation commission, doing business in this state shall designate some person residing in this state on whom all process and notices issued by any court of record may be served. In every case such individual, partnership, company or corporation shall file a certificate of the appointment and designation of such person in the office of the state corporation commission or as required pursuant to 49 U.S.C. Â§ 11506. The service of the process upon the person so designated, in any civil action, shall be deemed and held to be as effectual and complete as if service of such process were made upon the president or other chief officer of such individual, partnership, company or corporation. Any individual, partnership, company or corporation may revoke the appointment and designation of such person upon whom process may be served, by appointing any other person qualified as above specified and filing a certificate of such appointment. Every second or subsequent appointment shall also designate the person whose place is filled by such appointment. If any such individual, partnership, company or corporation fails to designate and appoint such person, as required by this section, such process may be served in any county as provided by provisions of article 3 of chapter 60 of Kansas Statutes Annotated, and amendments thereto.History: L. 1982, ch. 245, Â§ 2; L. 1990, ch. 202, Â§ 7; L. 1993, ch. 263, Â§ 2; July 1.60-306. Process service agent.(a) Generally. Any individual, partnership, association or corporation may file in the office of the secretary of state an instrument appointing a resident of the state of Kansas as agent upon whom process for such person, fiduciary, company or corporation may be served, and consenting without limitation or exception other than as provided in this act that service of process may be issued out of any court upon such service agent as the agent of such individual, partnership, association or corporation. The instrument appointing such service agent shall be acknowledged, shall state the residence or office address of the service agent, and shall be recorded at length upon the register of service agents and shall state that such designation is made pursuant to this section.(b) Change of address. An appointment shall be amended, in writing, and filed with the secretary of state whenever the name or address of the service agent is no longer accurate.(c) Period of appointment. The appointment shall remain in effect for a period of three years from the date of its filing unless revoked in writing, executed in the same manner as such appointment, which revocation shall be recorded and indexed in the register of service agents.(d) Collection of fee. The fee for filing an appointment, amendment or revocation shall be $20. The secretary of state shall remit to the state treasurer at least monthly all fees received pursuant to this section. The state treasurer shall deposit the entire amount in the state treasury and credit the amount to the information and copy service fee fund created in K.S.A. 75-438, and amendments thereto.(e) Effect of service upon agent. When any person, fiduciary or corporation shall have appointed such a service agent and such appointment remains unexpired and unrevoked, process issued in any action or proceeding against such person, fiduciary or corporation in any court may be served upon such service agent. Service by publication shall be of no force or effect where an appointment of service agent made and filed as herein provided remains in effect, unless process showing upon its face the name and address of such service agent shall have been duly issued to the proper officer of the county of such service agent’s residence as shown on the register of service agents and returned by such officer to whom it has been directed, with a notation, that such officer cannot find such service agent in the county. Such notation shall also state the name of the service agent who could not be found.History: L. 1963, ch. 303, 60-306; L. 1976, ch. 196, Â§ 3; L. 1992, ch. 67, Â§ 2; July 1.60-307. Service by publication.(a) When permissible. Service may be made by publication in any of the following cases:(1) In actions to obtain a divorce, maintenance or an annulment of the contract of marriage if the defendant resides out of the state or if the party with due diligence is unable to make service of summons upon the defendant within the state.(2) In actions brought against a person who is a nonresident of the state or a foreign corporation having in this state property or debts owing to the person sought to be taken by any of provisional remedies or to be appropriated in any way.(3) In actions which relate to or the subject of which is real or personal property in this state, if any defendant has or claims a lien or interest, vested or contingent, in the property, or the relief demanded consists wholly or partly in excluding the defendant from any interest in the property, or in actions for partition or for foreclosure of a lien, if the defendant is a nonresident of the state or a foreign corporation or if the party with due diligence is unable to make service of summons upon the defendant within the state.(4) In all actions in which the defendant, being a resident of this state, has departed from this state or from the county of the defendant’s residence, with the intent to delay or defraud creditors or to avoid the service of a summons, or hides in the state or county with that intent, or in an action against a domestic corporation which has not been legally dissolved, if the officers thereof have departed from the state or cannot be found.(5) In any of the actions mentioned in this subsection, publication service may be had on any of the following who are made defendants as such: The unknown heirs, executors, administrators, devisees, trustees, creditors and assigns of any deceased defendants; the unknown spouses of any defendants; the unknown officers, successors, trustees, creditors and assigns of any defendants that are existing, dissolved or dormant corporations; the unknown executors, administrators, devisees, trustees, creditors, successors and assigns of any defendants that are or were partners or in partnership; the unknown guardians, conservators and trustees of any defendants that are minors or are under any legal disability; and the unknown heirs, executors, administrators, devisees, trustees, creditors and assigns of any person alleged to be deceased.(b) Construction and effect. The process provisions of this section shall be construed as separate and permissive methods of obtaining service. If the defendant served in accordance with this section does not appear, judgment may be rendered affecting the property, res or status within the jurisdiction of the court as to the defendant, but the service shall not warrant a personal judgment against the defendant.(c) Affidavit for service by publication. Before service by publication as provided in this section can be made, one of the parties or the party’s attorney shall file an affidavit stating any of the following facts that are applicable:(1) The residences of all named defendants sought to be served, if known, and the names of all defendants whose residences are unknown after reasonable effort to ascertain the same.(2) The affiant has made a reasonable but unsuccessful effort to ascertain the names and residences of any defendants sought to be served as unknown parties in accordance with subsection (a)(5).(3) The party seeking service by publication is unable to procure service of summons on the defendants in this state.(4) The case is one of those mentioned in clauses (1) through (4) of subsection (a). The affidavit shall be in substantially the following form:(Name of Court)______________, Plaintiff, vs.______________, (Name of first defendant), et al. Defendants.(affidavit)State of Kansas, ______ County, ss:______, of lawful age, being first duly sworn, states that1. The affiant is (the plaintiff or defendant, or an attorney for the plaintiff or defendant) in the above action and makes this affidavit for the purpose of obtaining service by publication upon the parties named herein.2. The defendants on whom service by publication is sought and whose names and addresses are known are as follows: (Names and addresses).3. The defendants on whom service by publication is sought whose names are known but whose residences are unknown notwithstanding reasonable effort of the affiant to ascertain the same are as follows: (Names).4. The affiant does not know and with reasonable diligence is unable to ascertain the names or residences of any of those classes of unknown persons who are or may be concerned in the subject of this litigation, as mentioned in subsection (a)(5) of K.S.A. 60-307, and amendments thereto, but that the affiant desires to include all such in the affiant’s constructive service.5. The affiant is unable to procure service of summons on any of the specified defendants within this state.6. This action is one of those mentioned in K.S.A. subsections (a)(1) through (4) of 60-307, and amendments thereto. ____________(Jurat)(Signature)When the affidavit is filed, service may proceed by publication.
(d) Publication; form of notice; description of property, when. The notice shall be published once a week for three consecutive weeks in some newspaper published in the county where the petition is filed and which newspaper is authorized by law to publish legal notices. If there is no newspaper published in the county, the notice may be published in a newspaper having general circulation in the county. The notice must name the defendants to be served and notify them and all other persons who are or may be concerned that the defendants have been sued in a named court and must answer or plead otherwise to the petition, or other pleading, filed in the court, on or before a date to be stated, which date shall be not less than 41 days from the date the notice is first published, or the petition or other pleading filed will be taken as true, and judgment, the nature of which shall be stated, will be rendered accordingly. The notice shall be in substantially the following form:
Notice of SuitThe state of Kansas to (names of defendants to whom notice is given) and all other persons who are or may be concerned:You are hereby notified that a (petition or other pleading) has been filed in (name of court) by (name of pleader) praying for (state briefly the nature of the pleading and the judgment or other relief sought), and you are hereby required to plead to the (petition or other pleading) on or before ______________, 20__, in the court at __________, Kansas. If you fail to plead, judgment and decree will be entered in due course upon the (petition or other pleading)._____________________________________ (Name of plaintiff or other party.)Where the action affects property, the notice need not expressly describe the property, unless the description is otherwise required by law, but the property may be identified by reference to the pleading.
(e) Mailing copy of notice. The party seeking to secure service by publication shall, within seven days after the first publication, mail a copy of the publication notice to each defendant whose address is stated in the affidavit for service by publication.(f) When service complete. Service by publication shall be deemed complete when it has been made in the manner and for the time prescribed in subsections (d) and (e), and the service shall be proved. No judgment by default shall be entered on the service until proof of service is made, approved by the court and filed.History: L. 1963, ch. 303, 60-307; L. 1965, ch. 355, Â§ 1; L. 1970, ch. 232, Â§ 2; L. 1982, ch. 152, Â§ 22; L. 1990, ch. 202, Â§ 8; L. 1994, ch. 68, Â§ 3; July 1.60-308. Service outside state.(a) Proof and effect.(1) Service of process may be made upon any party outside the state. If upon a person domiciled in this state or upon a person who has submitted to the jurisdiction of the courts of this state, it shall have the force and effect of service of process within this state; otherwise it shall have the force and effect of service by publication.(2) The service of process shall be made (A) in the same manner as service within this state, by any officer authorized to make service of process in this state or in the state where the defendant is served or (B) by sending a copy of the process and of the petition or other document to the person to be served in the manner provided in subsection (e). No order of a court is required. An affidavit, or any other competent proofs, of the server shall be filed stating the time, manner and place of service. The court may consider the affidavit, or any other competent proofs, in determining whether service has been properly made.(3) No default shall be entered until the expiration of at least 30 days after service. A default judgment rendered on service outside this state may be set aside only on a showing which would be timely and sufficient to set aside a default judgment under subsection (b) of K.S.A. 60-260, and amendments thereto.(b) Submitting to jurisdiction – process. Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person and, if an individual, the individual’s personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts:(1) Transaction of any business within this state;(2) commission of a tortious act within this state;(3) ownership, use or possession of any real estate situated in this state;(4) contracting to insure any person, property or risk located within this state at the time of contracting;(5) entering into an express or implied contract, by mail or otherwise, with a resident of this state to be performed in whole or in part by either party in this state;(6) acting within this state as director, manager, trustee or other officer of any corporation organized under the laws of or having a place of business within this state or acting as executor or administrator of any estate within this state;(7) causing to persons or property within this state any injury arising out of an act or omission outside of this state by the defendant if, at the time of the injury either (A) the defendant was engaged in solicitation or service activities within this state; or (B) products, materials or things processed, serviced or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of trade or use;(8) living in the marital relationship within the state notwithstanding subsequent departure from the state, as to all obligations arising for maintenance, child support or property settlement under article 16 of this chapter, if the other party to the marital relationship continues to reside in the state;(9) serving as the insurer of any person at the time of any act by the person which is the subject of an action in a court of competent jurisdiction within the state of Kansas which results in judgment being taken against the person;(10) performing an act of sexual intercourse within the state, as to an action against a person seeking to adjudge the person to be a parent of a child and as to an action to require the person to provide support for a child as provided by law, if (A) the conception of the child results from the act and (B) the other party to the act or the child continues to reside in the state; or(11) entering into an express or implied arrangement, whether by contract, tariff or otherwise, with a corporation or partnership, either general or limited, residing or doing business in this state under which such corporation or partnership has supplied transportation services, or communication services or equipment, including, without limitation, telephonic communication services, for a business or commercial user where the services supplied to such user are managed, operated or monitored within the state of Kansas, provided that such person is put on reasonable notice that arranging or continuing such transportation services or telecommunication services may result in the extension of jurisdiction pursuant to this section.(c) Service of process upon any person who is subject to the jurisdiction of the courts of this state, as provided in subsection (b), may be made by serving the process upon the defendant outside this state, as provided in subsection (a)(2), with the same force and effect as though process had been served within this state, but only causes of action arising from acts enumerated in subsection (b) may be asserted against a defendant in an action in which jurisdiction over the defendant is based upon this subsection.(d) Nothing contained in this section limits or affects the right to serve any process in any other manner provided by law.(e) Service by certified mail. Service of any out-of-state process may be by certified mail, evidenced by return receipt signed by any person or by restricted delivery. The attorney for the party seeking service or the party, if the party is not represented by an attorney, shall cause a copy of the process and petition or other document to be placed in an envelope addressed to the person to be served in accordance with K.S.A. 60-304, and amendments thereto, adequate postage to be affixed and the sealed envelope to be placed in the United States mail as certified mail return receipt requested with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. The party’s attorney or the party, if the party is not represented by an attorney, shall execute a return on service stating the nature of the process, the date on which the process was mailed, and the name and address on the envelope containing the process mailed as certified mail return receipt requested. The party or the party’s attorney shall file the return on service and the return receipt or return envelope in the records of the action. Service of process shall be considered obtained under K.S.A. 60-203, and amendments thereto, upon the delivery of the certified mail envelope. If the certified mail envelope is returned with an endorsement showing refusal of delivery, the serving party or the party’s attorney may send a copy of the process and petition or other document to be served to the defendant by ordinary, first-class mail. The mailing shall be evidenced by a certificate of mailing which shall be filed with the clerk. Service shall be considered obtained upon the mailing by ordinary, first-class mail. Failure to claim certified mail service is not refusal of service within the meaning of this subsection.History: L. 1963, ch. 303, 60-308; L. 1971, ch. 195, Â§ 1; L. 1972, ch. 221, Â§ 1; L. 1976, ch. 253, Â§ 1; L. 1982, ch. 152, Â§ 23; L. 1986, ch. 215, Â§ 16; L. 1989, ch. 178, Â§ 1; L. 1990, ch. 202, Â§ 9; Jan. 1, 1991.60-310. Procedure where only part of defendants served.(a) Same. Where the action is against two or more defendants, and one or more shall have been served, but not all of them, the plaintiff may proceed as follows: First. If the action be against defendants jointly indebted upon contract, the plaintiff may proceed against the defendants served, unless the court otherwise direct; and if he or she recover judgment it may be entered against all the defendants thus jointly indebted so far only as that it may be enforced against the joint property of all, and the separate property of the defendants served. Second. If the action be against defendants severally liable, the plaintiff may, without prejudice to his or her rights against those not served, proceed against the defendants served in the same manner as if they were the only defendants.(b) Same. Nothing in this section shall be so construed as to make a judgment against one or more defendants jointly or severally liable a bar to another action against those not served.History: L. 1963, ch. 303, 60-310; Jan. 1, 1964.60-311. Where process may be served. All process issued for service from any court within the state may be served anywhere within the territorial limits of the state and, when authorized by law, may be served outside this state.History: L. 1963, ch. 303, 60-311; L. 1990, ch. 202, Â§ 10; Jan. 1, 1991.60-312. Proof of service. Proof of service shall be made as follows:(a) Personal and residence service.(1) Every officer to whom summons or other process shall be delivered for service within or without the state, shall make a statement subject to penalty of perjury as provided in K.S.A. 21-3805 and amendments thereto as to the time, place and manner of service of such writ.(2) If service of such process is directed to and delivered to a person, other than an officer, for service, such person shall make affidavit as to the time, place and manner of such person’s service thereof.(b) Service by certified mail. Service by certified mail shall be proven in the manner provided by subsection (b) of K.S.A. 60-303 or subsection (e) of K.S.A. 60-308, and amendments thereto.(c) Publication service. Service by publication shall be proven by an affidavit showing the dates upon which and the newspaper in which the notice of publication was published. A copy of the notice shall be attached to the affidavit which shall be filed in the cause. When mailing of copies of the publication notice is required in accordance with subsection (e) of K.S.A. 60-307 and amendments thereto, the proof of such mailing shall be by affidavit of the person who mailed such copies and such affidavit shall be filed with the clerk of the court in which the action has been filed. If such mailing was by certified mail, the return receipt shall be made a part of the affidavit and filed therewith.(d) Time for return. The officer or other person receiving a summons or other process shall make a return of service promptly and in any event within 10 days after the service is effected. If the process cannot be served it shall be returned to the court within 30 days after the date of issue with a statement of the reason for the failure to serve the same, except the time for service thereof may be extended up to 90 days from the date of issue by order of the court or judge of the court to which it is returnable. Immediately upon receipt of the return upon any summons or other process by the clerk of the court issuing the same, such clerk shall mail a copy of such return to the attorney for the party requesting the issuance of such summons or other process or, if such party has no attorney, then to the requesting party’s self.History: L. 1963, ch. 303, 60-312; L. 1969, ch. 283, Â§ 1; L. 1970, ch. 235, Â§ 2; amended by Supreme Court order dated July 28, 1976; L. 1986, ch. 215, Â§ 17; L. 1990, ch. 202, Â§ 11; L. 1998, ch. 100, Â§ 1; July 1.
Case Notes:1. Special process server must be authorized to make service of summons in state where defendant served. Hall v. Quivira Square Dev. Co., 675 P.2d 931 (1984).2. Whether service void because of out-of-state corporate process server not officer of state in which service made is examined. In re Marriage of Welliver, 869 P.2d 653 (1994).3. Untimely return of service does not void an otherwise valid service; the rights of defendant were not impaired. Cook v. Freeman, 825 P.2d 1185 (1992).60-313. Amendment of return. At any time in his or her discretion and upon such terms as he or she deems just, the judge may allow any process, return 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. History: L. 1963, ch. 303, 60-313; Jan. 1, 1964.60-245. Subpoenas.(a) Form; issuance.(1) Every subpoena shall:(A) State the name of the court from which it is issued;(B) state the title of the action, the name of the court in which it is pending and the file number of the action;(C) command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place specified in the subpoena; and(D) set forth the text of subsections (c) and (d) of this section.A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately. Subpoena and production of records of a business which is not a party shall be in accordance with K.S.A. 60-245a and amendments thereto.(2) A subpoena commanding attendance at a trial or hearing shall issue from the district court in which the hearing or trial is to be held. A subpoena for attendance at a deposition shall issue from the district court in which the action is pending or the officer before whom the deposition is to be taken or, if the deposition is to be taken outside the state, from an officer authorized by the law of the other state to issue the subpoena. If separate from a subpoena commanding the attendance of a person, a subpoena for production or inspection shall issue from the district court in which the action is pending or, if the production or inspection is to be made outside the state, an officer authorized by the law of the other state to issue the subpoena.(3) Every subpoena issued by the court shall be issued by the clerk under the seal of the court or by a judge. Upon request of a party, the clerk shall issue a blank subpoena. The blank subpoena shall bear the seal of the court, the title and file number of the action and the clerk’s signature or a facsimile of the clerk’s signature. The party to whom a blank subpoena is issued shall fill it in before service.(b) Service. Service of a subpoena upon a person named therein may be made anywhere within the state, shall be made in accordance with K.S.A. 60-303, and amendments thereto, and shall, if the person’s attendance is commanded, be accompanied by the fees for one day’s attendance and the mileage allowed by law. When sought independently of a deposition, prior notice of any commanded production of documents or inspection of premises before trial shall be served on each party in the manner prescribed by subsection (b) of K.S.A. 60-205 and amendments thereto.(c) Protection of persons subject to subpoenas.(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, a reasonable attorney fee.(2) (A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.(B) Subject to subsection (d)(2), a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.(3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it:(i) fails to allow reasonable time for compliance;(ii) requires a resident of this state who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business in person or requires a nonresident who is not a party or an officer of a party to travel to a place more than 100 miles from the place where the nonresident was served with the subpoena, is employed or regularly transacts business, except that, subject to the provisions of subsection (c)(3)(B)(iii), such a nonparty may in order to attend trial be commanded to travel to the place of trial;(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or(iv) subjects a person to undue burden.(B) If a subpoena:(i) requires disclosure of a trade secret or other confidential research, development or commercial information; or(ii) requires disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study made not at the request of any party; or(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.(4) A person confined in prison may be required to appear for examination by deposition only in the county where the person is imprisoned.(d) Duties in responding to subpoena.(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.(2) When information subject to a subpoena is withheld on a claim that such information is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications or things not produced that is sufficient to enable the demanding party to contest the claim.(e) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon the person may be considered a contempt of the court in which the action is pending or the court of the county in which the deposition is to be taken. Punishment for contempt shall be in accordance with K.S.A. 20-1204 and amendments thereto. An adequate cause for failure to obey exists when a subpoena purports to require a nonparty to attend or produce at a place not within the limits provided by subsection (c)(3)(A)(iii).History: L. 1963, ch. 303, 60-245; amended by Supreme Court order dated July 20, 1972; amended by Supreme Court order dated July 28, 1976; L. 1982, ch. 243, Â§ 1; L. 1985, ch. 196, Â§ 2; L. 1990, ch. 202, Â§ 2; L. 1997, ch. 173, Â§ 24; July 1.60-245a. Subpoena of records of a business not a party.(a) As used in this section:(1) “Business” means any kind of business, profession, occupation, calling or operation of institutions, whether carried on for profit or not.(2) “Business records” means writings made by personnel or staff of a business, or persons acting under their control, which are memoranda or records of acts, conditions or events made in the regular course of business at or about the time of the act, condition or event recorded.(b) A subpoena duces tecum which commands the production of business records in an action in which the business is not a party shall inform the person to whom it is directed that the person may serve upon the attorney designated in the subpoena written objection to production of any or all of the business records designated in the subpoena within 14 days after the service of the subpoena or at or before the time for compliance, if the time is less than 14 days after service. If such objection is made, the business records need not be produced except pursuant to an order of the court upon motion with notice to the person to whom the subpoena was directed. Unless the personal attendance of a custodian of the business records and the production of original business records are required under subsection (d), it is sufficient compliance with a subpoena of business records if a custodian of the business records delivers to the clerk of the court by mail or otherwise a true and correct copy of all the records described in the subpoena and mails a copy of the affidavit accompanying the records to the party or attorney requesting them within 14 days after receipt of the subpoena. The records described in the subpoena shall be accompanied by the affidavit of a custodian of the records, stating in substance each of the following: (1) The affiant is a duly authorized custodian of the records and has authority to certify records; (2) the copy is a true copy of all the records described in the subpoena; and (3) the records were prepared by the personnel or staff of the business, or persons acting under their control, in the regular course of the business at or about the time of the act, condition or event recorded. If the business has none of the records described in the subpoena, or only part thereof, the affiant shall so state in the affidavit and shall send only those records of which the affiant has custody. When more than one person has knowledge of the facts required to be stated in the affidavit, more than one affidavit may be made. The copy of the records shall be separately enclosed in a sealed envelope or wrapper on which the title and number of the action, name and address of the witness and the date of the subpoena are clearly inscribed. If return of the copy is desired, the words “return requested” must be inscribed clearly on the sealed envelope or wrapper. The sealed envelope or wrapper shall be delivered to the clerk of the court. The reasonable costs of copying the records may be demanded of the party causing the subpoena to be issued. If the costs are demanded, the records need not be produced until the costs of copying are advanced.(c) The subpoena shall be accompanied by an affidavit to be used by the records custodian. The subpoena and affidavit shall be in substantially the following form:Subpoena of Business RecordsState of KansasCounty of ___________(1) You are commanded to produce the records listed below before ____________________ (Officer at Deposition)(Judge of the District Court) at ____________________(Address) in the City of _________, County of ______________, on the _____ day of _____________, 20__, at ____ o’clock __ m., and to testify on behalf of the ___________________ in an action now pending between ________________, plaintiff, and ______________, defendant. Failure to comply with this subpoena may be deemed a contempt of the court.(2) Records to be produced:____________________________________________________________(3) You may make written objection to the production of any or all of the records listed above by serving such written objection upon ___________________(Attorney) at __________________________(Attorney’s Address) (within 14 days after service of this subpoena) (on or before ___________, 20__). If such objection is made, the records need not be produced except upon order of the court.(4) Instead of appearing at the time and place listed above, it is sufficient compliance with this subpoena if a custodian of the business records delivers to the clerk of the court by mail or otherwise a true and correct copy of all the records described above and mails a copy of the affidavit below to _______________________(Requesting Party or Attorney) at___________________________(Address of Party or Attorney) within 14 days after receipt of this subpoena.(5) The copy of the records shall be separately enclosed in a sealed envelope or wrapper on which the title and number of the action, name and address of the witness and the date of this subpoena are clearly inscribed. If return of the copy is desired, the words “return requested” must be inscribed clearly on the sealed envelope or wrapper. The sealed envelope or wrapper shall be delivered to the clerk of the court.(6) The records described in this subpoena shall be accompanied by the affidavit of a custodian of the records, a form for which is attached to this subpoena.(7) If the business has none of the records described in this subpoena, or only part thereof, the affidavit shall so state, and the custodian shall send only those records of which the custodian has custody. When more than one person has knowledge of the facts required to be stated in the affidavit, more than one affidavit may be made.(8) The reasonable costs of copying the records may be demanded of the party causing this subpoena to be issued. If the costs are demanded, the records need not be produced until the costs of copying are advanced.(9) The copy of the records will not be returned unless requested by the witness.___________________________Clerk of the District Court[Seal of the District Court]Dated __________, 20__.
Affidavit of Custodian of Business RecordsState of ___________________County of __________________I, _____________, being first duly sworn, on oath, depose and say that:(1) I am a duly authorized custodian of the business records of ____________ and have the authority to certify those records.(2) The copy of the records attached to this affidavit is a true copy of the records described in the subpoena.(3) The records were prepared by the personnel or staff of the business, or persons acting under their control, in the regular course of the business at or about the time of the act, condition or event recorded.______________________________Signature of CustodianSubscribed and sworn to before the undersigned on _________.____________________________Notary PublicMy Appointment Expires: ______________________
Certificate of MailingI hereby certify that on _________, 20____, I mailed a copy of the above affidavit to ______________________________(Requesting Party or Attorney) at ______________________________(Address of Party or Attorney) by depositing it with the United States Postal Service for delivery with postage prepaid._________________________Signature of CustodianSubscribed and sworn to before the undersigned on ____________.___________________________Notary PublicMy Appointment Expires: _____________.
(d) Any party may require the personal attendance of a custodian of business records and the production of original business records by causing a subpoena duces tecum to be issued which contains the following statements in lieu of paragraphs (4), (5), (6), (7) and (8) of the subpoena form described in subsection (c):The personal attendance of a custodian of business records and the production of original records is required by this subpoena. The procedure for delivering copies of the records to the clerk of the court shall not be deemed sufficient compliance with this subpoena and should be disregarded. A custodian of the records must personally appear with the original records.(e) Notice of the issuance of a subpoena pursuant to this section where the attendance of the custodian of the business records is not required shall be given to all parties to the action at least 10 days prior to the issuance thereof. A copy of the proposed subpoena shall also be served upon all parties along with such notice. In the event any party objects to the production of the documents sought by such subpoena prior to its issuance, the subpoena shall not be issued until further order of the court in which the action is pending.(f) Upon receipt of business records the clerk of the court shall so notify the party who caused the subpoena for the business records to be issued. If receipt of the records makes the taking of a deposition unnecessary, the party shall cancel the deposition and shall notify the other parties to the action in writing of the receipt of the records and the cancellation of the deposition. After the copy of the record is filed, a party desiring to inspect or copy it shall give reasonable notice to every other party to the action. The notice shall state the time and place of inspection. Records which are not introduced in evidence or required as part of the record shall be destroyed or returned to the custodian of the records who submitted them if return has been requested.History: L. 1985, ch. 196, Â§ 1; L. 1997, ch. 173, Â§ 25; July 1.

Topics: Process Service | No Comments »

Minnesota Foreclosure Process Server Laws

By admin | April 9, 2010

RULE 1 SCOPE OF RULES

These rules govern the procedure in the district courts of the State of Minnesota in all suits of a civil nature, with the exceptions stated in Rule 81. They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.

ADVISORY COMMITTEE COMMENTSâ€”1996 AMENDMENTS

This change conforms the rule to its federal counterpart. The amendment is intended to make clear that the goals of just, speedy, and inexpensive resolution of litigation are just as importantâ€”if not more important â€”in questions that do not involve interpretation of the rules. These goals should guide all aspects of judicial administration, and this amendment expressly so states.

RULE 4 SERVICE

* * *

4.04 Service by Publications; Personal Service out of State

(a) Service by Publications. Service by publication shall be sufficient to confer jurisdiction:

(a1) When the defendant is a resident individual domiciliary having departed from the state with intent to defraud creditors, or to avoid service, or remains concealed therein with the like intent;

(b2) When the plaintiff has acquired a lien upon property or credits within the state by attachment or garnishment, and

(1A) The defendant is a resident individual who has departed from the state, or cannot be found therein, or

(2B) The defendant is a nonresident individual or a foreign corporation, partnership or association;

When quasi in rem jurisdiction has been obtained, a party defending the action thereby submits personally to the jurisdiction of the court. An appearance solely to contest the validity of quasi in rem jurisdiction is not such a submission.

(c3) When the action is for marriage dissolution or separate maintenance and the court has ordered service by published notice;

(d4) When the subject of the action is real or personal property within the state in or upon which the defendant has or claims a lien or interest, or the relief demanded consists wholly or partly in excluding the defendant from any such interest or lien;

(e5) When the action is to foreclose a mortgage or to enforce a lien on real estate within the state.

The summons may be served by three weeks’ published notice in any of the cases enumerated herein when the complaint and an affidavit of the plaintiff or the plaintiff’s attorney have been filed with the court. The affidavit shall state the existence of one of the enumerated cases, and that affiant believes the defendant is not a resident of the state or cannot be found therein, and either that the affiant has mailed a copy of the summons to the defendant at the defendant’s place of residence or that such residence is not known to the affiant. The service of the summons shall be deemed complete 21 days after the first publication.

(b) Personal Service Outside State. Personal service of such summons outside the state, proved by the affidavit of the person making the same sworn to before a person authorized to administer an oath, shall have the same effect as the published notice provided for herein.

(c) Service Outside United States. Unless otherwise provided by law, service upon an individual, other than an infant or an incompetent person, may be effected in a place not within the state:

(1) by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or

(2) if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice:

(A) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or

(B) as directed by the foreign authority in response to a letter rogatory or letter of request; or

(i) delivery to the individual personally of a copy of the summons and the complaint; or

(ii) any form of mail requiring a signed receipt, to be addressed and dispatched by the court administrator to the party to be served; or

(3) by other means not prohibited by international agreement as may be directed by the court.

ADVISORY COMMITTEE COMMENTSâ€”1996 AMENDMENTS

Rule 4.04 is amended to conform the rule to its federal counterpart, in part. The new provision adopts verbatim the provisions for service of process outside the United States contained in the federal rules. This modification is appropriate because this subject is handled well by the federal rule and because it is advantageous to have the two rules similar. This is particularly valuable given the dearth of state-court authority on foreign service of process. Existing portions of the rule are renumbered for clarity.

RULE 5 SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS

* * *

5.02 Service; How Made

Whenever under these rules service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the court. Written admission of service by the party or the party’s attorney shall be sufficient proof of service. Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or party; transmitting a copy by facsimile machine to the attorney or partyâ€™s office; or by mailing a copy to the attorney or party at either’s the attorney’s or party’s last known address or, if no address is known, by leaving it with the court administrator. Delivery of a copy within this rule means: Handing it to the attorney or to the party; or leaving it at either’s the attorney’s or party’s office with a clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at the attorney’s or party’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing. Service by facsimile is complete upon completion of the facsimile transmission.

* * *

5.04 Filing Certificate of Service

Upon the filing of any paper with the court, all papers required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter; but unless filing is ordered by the court on motion or upon its own initiative, depositions, interrogatories, requests to admit, and requests for production and answers and responses thereto shall not be filed. Unless required to be filed for issuance of a subpoena for a deposition, a notice of taking deposition need not be filed. All papers after the complaint required to be served upon a party, together with a certificate of service, shall be filed with the court within a reasonable time after service, except expert disclosures and reports, depositions upon oral examination and interrogatories, requests for documents, requests for admission, and answers and responses thereto shall not be filed unless upon order of the court or for use in the proceeding.

5.05 Filing; Facsimile Transmission

Any paper may be filed with the court by facsimile transmission. Filing shall be deemed complete at the time that the facsimile transmission is received by the court and the filed facsimile shall have the same force and effect as the original. Only facsimile transmission equipment that satisfies the published criteria of the Supreme Court shall be used for filing in accordance with this rule.

Within 5 days after the court has received the transmission, the party filing the document shall forward the following to the court:

(a) a $5 transmission fee; and

(b) the original signed document; and

Upon failure to comply with the requirements of this rule, the court in which the action is pending may make such orders as are just, including but not limited to, an order striking pleadings or parts thereof, staying further proceedings until compliance is complete, or dismissing the action, proceeding, or any part thereof.

The administrator shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices.

ADVISORY COMMITTEE COMMENTSâ€”1996 AMENDMENTS

Most of Rule 5.02 is new and for the first time provides for service by facsimile. Service by this method has become widespread, generally handled either by express agreement of counsel or acquiescence in a service method not explicitly authorized by rule.

The committee considered a suggestion that the provision for leaving a document with the court administrator be changed, deleted, or clarified. Although it is not clear from the rule what the administrator should do in the rare event that a document is filed with the administrator rather than delivered or mailed to the attorney, the committee believes the rule should be retained as it provides notice to the court that although service may comply with the rule, effective notice has not been received by the party entitled to notice. This will facilitate the courtâ€™s consideration of the sufficiency of service under all of the circumstances.

The amendment to Rule 5.02 provides an express mechanism for service by facsimile. Service by facsimile has become widely accepted and is used in Minnesota either by agreement or presumption that it is acceptable under the rules or at least has not been objected to by the parties. The committee believes an express authorization for service by facsimile is appropriate and preferable to the existing silence on the subject. The committeeâ€™s recommendation is modeled on similar provisions in the Wisconsin and Florida rules. See Wis. Stat. Â§Â§ 801.14(2) & .15(5)(b); Fla. R. Civ. P. 1.080(b)(5). Service by facsimile is allowed in other jurisdictions as well. See, e.g., Ill. S. Ct. R. 11(b)(4); S. Dak. R. 15-6-5(b); Cal. R. Civ. P. 2008.

In addition providing for service by facsimile, Rule 6.05 is amended to create a specific deadline for timely service. This rule adds an additional day for response to any paper served by any means other than mail (where 3 extra days are allowed under existing Rule 6.05, which is retained) and where service is not effected until after 5:00 p.m., local time. This rule is intended to discourage, or at least make unrewarding, the inappropriate practice of serving papers after the close of a normal business day. Service after 5:00 p.m. is still timely as of the day of service if the deadline for service is that day, but if a response is permitted, the party served has an additional day to respond. This structure parallels directly the mechanism for dealing with service by mail under the existing rule.

Rule 5.05 is amended to add a provision relating to filing that was adopted as part of Fed. R. Civ. P. 5(e) in 1991. It is important that Rule 5 specifically provide that the court administrator must accept for filing documents tendered for that purpose regardless of any technical deficiencies they may contain. The court may, of course, direct that those deficiencies be remedied or give substantive importance to the deficiencies of the documents. The sanction of closing the courthouse to the filing should not be imposed or if imposed, should be imposed by a judge only after reviewing the document and the circumstances surrounding its filing. The rejection of documents for filing may have dire consequences for litigants and is not authorized by statute or rule.

RULE 6 TIME

6.01 Computation

In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the court administrator inaccessible, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday one of the aforementioned days. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule and in Rule 77(c), “legal holiday” includes any holiday defined or designated by statute.

* * *

6.04 For Motions; Affidavits

A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served no later than 5 days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. A motion may be supported by papers on file by reference; supporting papers not on file When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59.04, opposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time.

6.05 Additional Time After Service by Mail or Service Late in Day

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party, or whenever such service is required to be made a prescribed period before a specified event, and the notice or paper is served upon the party by mail, three days shall be added to the prescribed period. If service is made by any means other than mail and accomplished after 5:00 p.m. local time on the day of service, one additional day shall be added to the prescribed period.

ADVISORY COMMITTEE COMMENTSâ€”1996 AMENDMENTS

The amendment to Rule 6.01 conforms the rule to its federal counterpart. The committee believes it is desirable to define explicitly what constitutes a “legal holiday.” Given the nature of Minnesotaâ€™s weather, the committee believes specific provision for dealing with inclement weather should be made in the rules. The federal rule enumerates specific holidays. That drafting approach is not feasible in Minnesota because Minn. Stat. Â§ 645.44, subd. 5, defines legal holidays, but allows the judiciary to pick either Columbus Day or the Friday after Thanksgiving as a holiday. Whichever is selected is defined to be a holiday under the rule.

The amendment to Rule 6.05 conforms the rule to the federal rule except for the last sentence which is new and has no federal counterpart. This provision is intended to discourage the unseemly practices of sliding a “service” under the door of opposing counsel or sending a facsimile transmission after the close of business and asserting timely service. Such service will be timely under the rules, but will add a day to the time to respond. If the paper is due to be served a fixed number of days before an event, that number should be increased by one as well, making it necessary to serve late in the day before the deadline.

RULE 1 SCOPE OF RULES
These rules govern the procedure in the district courts of the State of Minnesota in all suits of a civil nature, with the exceptions stated in Rule 81. They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.
ADVISORY COMMITTEE COMMENTSâ€”1996 AMENDMENTS
This change conforms the rule to its federal counterpart. The amendment is intended to make clear that the goals of just, speedy, and inexpensive resolution of litigation are just as importantâ€”if not more important â€”in questions that do not involve interpretation of the rules. These goals should guide all aspects of judicial administration, and this amendment expressly so states.

RULE 4 SERVICE
* * *
4.04 Service by Publications; Personal Service out of State
(a) Service by Publications. Service by publication shall be sufficient to confer jurisdiction:
(a1) When the defendant is a resident individual domiciliary having departed from the state with intent to defraud creditors, or to avoid service, or remains concealed therein with the like intent;
(b2) When the plaintiff has acquired a lien upon property or credits within the state by attachment or garnishment, and
(1A) The defendant is a resident individual who has departed from the state, or cannot be found therein, or
(2B) The defendant is a nonresident individual or a foreign corporation, partnership or association;
When quasi in rem jurisdiction has been obtained, a party defending the action thereby submits personally to the jurisdiction of the court. An appearance solely to contest the validity of quasi in rem jurisdiction is not such a submission.
(c3) When the action is for marriage dissolution or separate maintenance and the court has ordered service by published notice;
(d4) When the subject of the action is real or personal property within the state in or upon which the defendant has or claims a lien or interest, or the relief demanded consists wholly or partly in excluding the defendant from any such interest or lien;
(e5) When the action is to foreclose a mortgage or to enforce a lien on real estate within the state.
The summons may be served by three weeks’ published notice in any of the cases enumerated herein when the complaint and an affidavit of the plaintiff or the plaintiff’s attorney have been filed with the court. The affidavit shall state the existence of one of the enumerated cases, and that affiant believes the defendant is not a resident of the state or cannot be found therein, and either that the affiant has mailed a copy of the summons to the defendant at the defendant’s place of residence or that such residence is not known to the affiant. The service of the summons shall be deemed complete 21 days after the first publication.
(b) Personal Service Outside State. Personal service of such summons outside the state, proved by the affidavit of the person making the same sworn to before a person authorized to administer an oath, shall have the same effect as the published notice provided for herein.
(c) Service Outside United States. Unless otherwise provided by law, service upon an individual, other than an infant or an incompetent person, may be effected in a place not within the state:
(1) by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or
(2) if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice:
(A) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or
(B) as directed by the foreign authority in response to a letter rogatory or letter of request; or
(C) unless prohibited by the law of the foreign country, by
(i) delivery to the individual personally of a copy of the summons and the complaint; or
(ii) any form of mail requiring a signed receipt, to be addressed and dispatched by the court administrator to the party to be served; or
(3) by other means not prohibited by international agreement as may be directed by the court.
ADVISORY COMMITTEE COMMENTSâ€”1996 AMENDMENTS
Rule 4.04 is amended to conform the rule to its federal counterpart, in part. The new provision adopts verbatim the provisions for service of process outside the United States contained in the federal rules. This modification is appropriate because this subject is handled well by the federal rule and because it is advantageous to have the two rules similar. This is particularly valuable given the dearth of state-court authority on foreign service of process. Existing portions of the rule are renumbered for clarity.

RULE 5 SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS
* * *
5.02 Service; How Made
Whenever under these rules service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the court. Written admission of service by the party or the party’s attorney shall be sufficient proof of service. Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or party; transmitting a copy by facsimile machine to the attorney or partyâ€™s office; or by mailing a copy to the attorney or party at either’s the attorney’s or party’s last known address or, if no address is known, by leaving it with the court administrator. Delivery of a copy within this rule means: Handing it to the attorney or to the party; or leaving it at either’s the attorney’s or party’s office with a clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at the attorney’s or party’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing. Service by facsimile is complete upon completion of the facsimile transmission.
* * *
5.04 Filing Certificate of Service
Upon the filing of any paper with the court, all papers required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter; but unless filing is ordered by the court on motion or upon its own initiative, depositions, interrogatories, requests to admit, and requests for production and answers and responses thereto shall not be filed. Unless required to be filed for issuance of a subpoena for a deposition, a notice of taking deposition need not be filed. All papers after the complaint required to be served upon a party, together with a certificate of service, shall be filed with the court within a reasonable time after service, except expert disclosures and reports, depositions upon oral examination and interrogatories, requests for documents, requests for admission, and answers and responses thereto shall not be filed unless upon order of the court or for use in the proceeding.
5.05 Filing; Facsimile Transmission
Any paper may be filed with the court by facsimile transmission. Filing shall be deemed complete at the time that the facsimile transmission is received by the court and the filed facsimile shall have the same force and effect as the original. Only facsimile transmission equipment that satisfies the published criteria of the Supreme Court shall be used for filing in accordance with this rule.
Within 5 days after the court has received the transmission, the party filing the document shall forward the following to the court:
(a) a $5 transmission fee; and
(b) the original signed document; and
(c) the applicable filing fee, if any.
Upon failure to comply with the requirements of this rule, the court in which the action is pending may make such orders as are just, including but not limited to, an order striking pleadings or parts thereof, staying further proceedings until compliance is complete, or dismissing the action, proceeding, or any part thereof.
The administrator shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices.
ADVISORY COMMITTEE COMMENTSâ€”1996 AMENDMENTS
Most of Rule 5.02 is new and for the first time provides for service by facsimile. Service by this method has become widespread, generally handled either by express agreement of counsel or acquiescence in a service method not explicitly authorized by rule.
The committee considered a suggestion that the provision for leaving a document with the court administrator be changed, deleted, or clarified. Although it is not clear from the rule what the administrator should do in the rare event that a document is filed with the administrator rather than delivered or mailed to the attorney, the committee believes the rule should be retained as it provides notice to the court that although service may comply with the rule, effective notice has not been received by the party entitled to notice. This will facilitate the courtâ€™s consideration of the sufficiency of service under all of the circumstances.
The amendment to Rule 5.02 provides an express mechanism for service by facsimile. Service by facsimile has become widely accepted and is used in Minnesota either by agreement or presumption that it is acceptable under the rules or at least has not been objected to by the parties. The committee believes an express authorization for service by facsimile is appropriate and preferable to the existing silence on the subject. The committeeâ€™s recommendation is modeled on similar provisions in the Wisconsin and Florida rules. See Wis. Stat. Â§Â§ 801.14(2) & .15(5)(b); Fla. R. Civ. P. 1.080(b)(5). Service by facsimile is allowed in other jurisdictions as well. See, e.g., Ill. S. Ct. R. 11(b)(4); S. Dak. R. 15-6-5(b); Cal. R. Civ. P. 2008.
In addition providing for service by facsimile, Rule 6.05 is amended to create a specific deadline for timely service. This rule adds an additional day for response to any paper served by any means other than mail (where 3 extra days are allowed under existing Rule 6.05, which is retained) and where service is not effected until after 5:00 p.m., local time. This rule is intended to discourage, or at least make unrewarding, the inappropriate practice of serving papers after the close of a normal business day. Service after 5:00 p.m. is still timely as of the day of service if the deadline for service is that day, but if a response is permitted, the party served has an additional day to respond. This structure parallels directly the mechanism for dealing with service by mail under the existing rule.
Rule 5.05 is amended to add a provision relating to filing that was adopted as part of Fed. R. Civ. P. 5(e) in 1991. It is important that Rule 5 specifically provide that the court administrator must accept for filing documents tendered for that purpose regardless of any technical deficiencies they may contain. The court may, of course, direct that those deficiencies be remedied or give substantive importance to the deficiencies of the documents. The sanction of closing the courthouse to the filing should not be imposed or if imposed, should be imposed by a judge only after reviewing the document and the circumstances surrounding its filing. The rejection of documents for filing may have dire consequences for litigants and is not authorized by statute or rule.

RULE 6 TIME
6.01 Computation
In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the court administrator inaccessible, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday one of the aforementioned days. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule and in Rule 77(c), “legal holiday” includes any holiday defined or designated by statute.
* * *
6.04 For Motions; Affidavits
A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served no later than 5 days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. A motion may be supported by papers on file by reference; supporting papers not on file When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59.04, opposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time.
6.05 Additional Time After Service by Mail or Service Late in Day
Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party, or whenever such service is required to be made a prescribed period before a specified event, and the notice or paper is served upon the party by mail, three days shall be added to the prescribed period. If service is made by any means other than mail and accomplished after 5:00 p.m. local time on the day of service, one additional day shall be added to the prescribed period.
ADVISORY COMMITTEE COMMENTSâ€”1996 AMENDMENTS
The amendment to Rule 6.01 conforms the rule to its federal counterpart. The committee believes it is desirable to define explicitly what constitutes a “legal holiday.” Given the nature of Minnesotaâ€™s weather, the committee believes specific provision for dealing with inclement weather should be made in the rules. The federal rule enumerates specific holidays. That drafting approach is not feasible in Minnesota because Minn. Stat. Â§ 645.44, subd. 5, defines legal holidays, but allows the judiciary to pick either Columbus Day or the Friday after Thanksgiving as a holiday. Whichever is selected is defined to be a holiday under the rule.
The amendment to Rule 6.05 conforms the rule to the federal rule except for the last sentence which is new and has no federal counterpart. This provision is intended to discourage the unseemly practices of sliding a “service” under the door of opposing counsel or sending a facsimile transmission after the close of business and asserting timely service. Such service will be timely under the rules, but will add a day to the time to respond. If the paper is due to be served a fixed number of days before an event, that number should be increased by one as well, making it necessary to serve late in the day before the deadline.

Topics: Process Service | No Comments »

Utah Foreclosure Process Server Laws

By admin | April 9, 2010

Rule 4. Process.

(a) Signing of summons. The summons shall be signed and issued by the plaintiff or the plaintiff’s attorney. Separate summonses may be signed and served.

(b) Time of service. In an action commenced under Rule 3(a)(1), the summons together with a copy of the complaint shall be served no later than 120 days after the filing of the complaint unless the court allows a longer period of time for good cause shown. If the summons and complaint are not timely served, the action shall be dismissed, without prejudice on application of any party or upon the court’s own initiative. In any action brought against two or more defendants on which service has been obtained upon one of them within the 120 days or such longer period as may be allowed by the court, the other or others may be served or appear at any time prior to trial.

(1) The summons shall contain the name of the court, the address of the court, the names of the parties to the action, and the county in which it is brought. It shall be directed to the defendant, state the name, address and telephone number of the plaintiff’s attorney, if any, and otherwise the plaintiff’s address and telephone number. It shall state the time within which the defendant is required to answer the complaint in writing, and shall notify the defendant that in case of failure to do so, judgment by default will be rendered against the defendant. It shall state either that the complaint is on file with the court or that the complaint will be filed with the court within ten days of service.

(2) If the action is commenced under Rule 3(a)(2), the summons shall state that the defendant need not answer if the complaint is not filed within 10 days after service and shall state the telephone number of the clerk of the court where the defendant may call at least 13 days after service to determine if the complaint has been filed.

(3) If service is made by publication, the summons shall briefly state the subject matter and the sum of money or other relief demanded, and that the complaint is on file.

(d) By whom served. The summons and complaint may be served in this state or any other state or territory of the United States, by the sheriff or constable, or by the deputy of either, by a United States Marshal or by the marshal’s deputy, or by any other person 18 years of age or older at the time of service, and not a party to the action or a party’s attorney.

(e) Personal service. Personal service shall be made as follows:

(1) Upon any individual other than one covered by subparagraphs (2), (3) or (4) below, by delivering a copy of the summons and/or the complaint to the individual personally, or by leaving a copy at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion there residing, or by delivering a copy of the summons and/or the complaint to an agent authorized by appointment or by law to receive service of process;

(2) Upon an infant (being a person under 14 years) by delivering a copy to the infant and also to the infant’s father, mother or guardian or, if none can be found within the state, then to any person having the care and control of the infant, or with whom the infant resides, or in whose service the infant is employed;

(3) Upon a natural person judicially declared to be of unsound mind or incapable of conducting his own affairs, by delivering a copy to the person and to the person’s legal representative if one has been appointed and in the absence of such representative, to the individual, if any, who has care, custody or control of the person;

(4) Upon an individual incarcerated or committed at a facility operated by the state or any of its political subdivisions, by delivering a copy to the person who has the care, custody, or control of the individual to be served, or to that person’s designee or to the guardian or conservator of the individual to be served if one has been appointed, who shall, in any case, promptly deliver the process to the individual served;

(5) Upon any corporation, not herein otherwise provided for, upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy thereof to an officer, a managing or general agent, or 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 defendant. If no such officer or agent can be found within the state, and the defendant has, or advertises or holds itself out as having, an office or place of business within the state or elsewhere, or does business within this state or elsewhere, then upon the person in charge of such office or place of business;

(6) Upon an incorporated city or town, by delivering a copy thereof to the recorder;

(7) Upon a county, by delivering a copy to the county clerk of such county;

(8) Upon a school district or board of education, by delivering a copy to the superintendent or business administrator of the board;

(9) Upon an irrigation or drainage district, by delivering a copy to the president or secretary of its board;

(10) Upon the state of Utah, in such cases as by law are authorized to be brought against the state, by delivering a copy to the attorney general and any other person or agency required by statute to be served; and

(11) Upon a department or agency of the state of Utah, or upon any public board, commission or body, subject to suit, by delivering a copy to any member of its governing board, or to its executive employee or secretary.

(f) Service and proof of service in a foreign country. Service in a foreign country shall be made as follows:

(1) In the manner prescribed by the law of the foreign country for service in an action in any of its courts of general jurisdiction; or

(2) Upon an individual, by personal delivery; and upon a corporation, partnership or association, by delivering a copy to an officer or a managing general agent; provided that such service be made by a person who is not a party to the action, not a party’s attorney, and is not less than 18 years of age, or who is designated by order of the court or by the foreign court; or

(3) By any form of mail, requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served as ordered by the court. Proof of service in a foreign country shall be made as prescribed in these rules for service within this state, or by the law of the foreign country, or by order of the court. When service is made pursuant to subpart (3) of this subdivision, proof of service shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court.

(g) Other service. Where the identity or whereabouts of the person to be served are unknown and cannot be ascertained through reasonable diligence, where service upon all of the individual parties is impracticable under the circumstances, or where there exists good cause to believe that the person to be served is avoiding service of process, the party seeking service of process may file a motion supported by affidavit requesting an order allowing service by publication, by mail, or by some other means. The supporting affidavit shall set forth the efforts made to identify, locate or serve the party to be served, or the circumstances which make it impracticable to serve all of the individual parties. If the motion is granted, the court shall order service of process by publication, by mail from the clerk of the court, by other means, or by some combination of the above, provided that the means of notice employed shall be reasonably calculated, under all the circumstances, to apprise the interested parties of the pendency of the action to the extent reasonably possible or practicable. The court’s order shall also specify the content of the process to be served and the event or events as of which service shall be deemed complete. A copy of the court’s order shall be served upon the defendant with the process specified by the court.

(h) Manner of proof. In a case commenced under Rule 3(a)(1), the party serving the process shall file proof of service with the court promptly, and in any event within the time during which the person served must respond to the process, and proof of service must be made within ten days after such service. Failure to file proof of service does not affect the validity of the service. In all cases commenced under Rule 3(a)(1) or Rule 3(a)(2), the proof of service shall be made as follows:

(1) If served by a sheriff, constable, United States Marshal, or the deputy of any of them, by certificate with a statement as to the date, place, and manner of service;

(2) If served by any other person, by affidavit with a statement as to the date, place, and manner of service, together with the affiant’s age at the time of service;

(3) If served by publication, by the affidavit of the publisher or printer or that person’s designated agent, showing publication, and specifying the date of the first and last publications; and an affidavit by the clerk of the court of a deposit of a copy of the summons and complaint in the United States mail, if such mailing shall be required under this rule or by court order;

(4) If served by United States mail, by the affidavit of the clerk of the court showing a deposit of a copy of the summons and complaint in the United States mail, as may be ordered by the court, together with any proof of receipt;

(5) By the written admission or waiver of service by the person to be served, duly acknowledged, or otherwise proved.

(i) Amendment. 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.

(j) Refusal of copy. If the person to be served refuses to accept a copy of the process, service shall be sufficient if the person serving the same shall state the name of the process and offer to deliver a copy thereof.

(k) Date of service to be endorsed on copy. At the time of service, the person making such service shall endorse upon the copy of the summons left for the person being served, the date upon which the same was served, and shall sign his or her name thereto, and, if an officer, add his or her official title.

(l) Designation of newspaper for publication of notice. In any proceeding where summons or other notice is required to be published, the court shall, upon the request of the party applying for such publication, designate the newspaper and authorize and direct that such publication shall be made therein; provided, that the newspaper selected shall be a newspaper of general circulation in the county where such publication is required to be made and shall be published in the English language.

(Amended effective March 1, 1988; April 1, 1990; April 1, 1996.)

Rule 45. Subpoena.

(a) Form; issuance.

(1) Every subpoena shall:

(A) issue from the court in which the action is pending;

(B) state the title of the action, the name of the court from which it is issued, the name and address of the party or attorney serving the subpoena, and its civil action number;

(C) command each person to whom it is directed to appear to give testimony at trial, or at hearing, or at deposition, or to produce or to permit inspection and copying of documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified; and

(D) set forth the text of Notice to Persons Served with a Subpoena, in substantially similar form to Form 30 in the Appendix of Forms to these rules.

(2) A command to produce or to permit inspection and copying of documents or tangible things, or to permit inspection of premises, may be joined with a command to appear at trial, or at hearing, or at deposition, or may be issued separately.

(3) The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney admitted to practice in the court in which the action is pending may also issue and sign a subpoena as an officer of the court.

(b) Service; scope.

(1) Generally.

(A) A subpoena may be served by any person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made as provided in Rule 4(e) for the service of process and, if the person’s appearance is commanded, by tendering to that person the fees for one day’s attendance and the mileage allowed by law. When the subpoena is issued on behalf of the United States, or this state, or any officer or agency of either, fees and mileage need not be tendered. Prior notice of any commanded production or inspection of documents or tangible things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(b).

(B) Proof of service when necessary shall be made by filing with the clerk of the court from which the subpoena is issued a statement of the date and manner of service and of the names of the persons served, certified by the person who made the service.

(C) Service of a subpoena outside of this state, for the taking of a deposition or production or inspection of documents or tangible things or inspection of premises outside this state, shall be made in accordance with the requirements of the jurisdiction in which such service is made.

(2) Subpoena for appearance at trial or hearing. A subpoena commanding a witness to appear at a trial or at a hearing pending in this state may be served at any place within the state.

(3) Subpoena for taking deposition.

(A) A person who resides in this state may be required to appear at deposition only in the county where the person resides, or is employed, or transacts business in person, or at such other place as the court may order. A person who does not reside in this state may be required to appear at deposition only in the county in this state where the person is served with a subpoena, or at such other place as the court may order.

(B) A subpoena commanding the appearance of a witness at a deposition may also command the person to whom it is directed to produce or to permit inspection and copying of documents or tangible things relating to any of the matters within the scope of the examination permitted by Rule 26(b), but in that event the subpoena will be subject to the provisions of Rule 30(b) and paragraph (c) of this rule.

(4) Subpoena for production or inspection of documents or tangible things or inspection of premises. A subpoena to command a person who is not a party to produce or to permit inspection and copying of documents or tangible things or to permit inspection of premises may be served at any time after commencement of the action. The scope and procedure shall comply with Rule 34, except that the person must be allowed at least 14 days to comply as stated in subparagraph (c)(2)(A) of this rule. The party serving the subpoena shall pay the reasonable cost of producing or copying the documents or tangible things. Upon the request of any other party and the payment of reasonable costs, the party serving the subpoena shall provide to the requesting party copies of all documents obtained in response to the subpoena.

(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court from which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney’s fee.

(2)(A) A subpoena served upon a person who is not a party to produce or to permit inspection and copying of documents or tangible things or to permit inspection of premises, whether or not joined with a command to appear at trial, or at hearing, or at deposition, must allow the person at least 14 days after service to comply, unless a shorter time has been ordered by the court for good cause shown.

(B) A person commanded to produce or to permit inspection and copying of documents or tangible things or to permit inspection of premises need not appear in person at the place of production or inspection unless also commanded to appear at trial, at hearing, or at deposition.

(C) A person commanded to produce or to permit inspection and copying of documents or tangible things or inspection of premises may, before the time specified for compliance with the subpoena, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the documents or tangible things or inspection of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.

(3)(A) On timely motion, the court from which a subpoena was issued shall quash or modify the subpoena if it:

(i) fails to allow reasonable time for compliance;

(ii) requires a resident of this state who is not a party to appear at deposition in a county in which the resident does not reside, or is not employed, or does not transact business in person; or requires a non-resident of this state to appear at deposition in a county other than the county in which the person was served;

(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies;

(iv) subjects a person to undue burden.

(B) If a subpoena:

(i) requires disclosure of a trade secret or other confidential research, development, or commercial information;

(iii) requires a resident of this state who is not a party to appear at deposition in a county in which the resident does not reside, or is not employed, or does not transact business in person; or

(iv) requires a non-resident of this state who is not a party to appear at deposition in a county other than the county in which the person was served; the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party serving the subpoena shows a substantial need for the testimony or material that cannot otherwise be met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.

(d) Duties in responding to subpoena.

(e) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. An adequate cause for failure to obey exists when a subpoena purports to require a nonparty to appear or produce at a place not within the limits provided by subparagraph (c)(3)(A)(ii).

(f) Procedure where witness conceals himself or fails to attend. If a witness evades service of a subpoena, or fails to attend after service of a subpoena, the court may issue a warrant to the sheriff of the county to arrest the witness and bring the witness before the court.

(g) Procedure when witness is confined in jail. If the witness is a prisoner confined in a jail or prison within the state, an order for examination in the prison upon deposition or, in the discretion of the court, for temporary removal and production before the court or officer for the purpose of being orally examined, may be made upon motion, with or without notice, by a justice of the Supreme Court, or by the district court of the county in which the action is pending.

(h) (h) Subpoena unnecessary; when. A person present in court, or before a judicial officer, may be required to testify in the same manner as if the person were in attendance upon a subpoena.

(Amended effective January 1, 1995.)

Rule 4. Process.(a) Signing of summons. The summons shall be signed and issued by the plaintiff or the plaintiff’s attorney. Separate summonses may be signed and served.(b) Time of service. In an action commenced under Rule 3(a)(1), the summons together with a copy of the complaint shall be served no later than 120 days after the filing of the complaint unless the court allows a longer period of time for good cause shown. If the summons and complaint are not timely served, the action shall be dismissed, without prejudice on application of any party or upon the court’s own initiative. In any action brought against two or more defendants on which service has been obtained upon one of them within the 120 days or such longer period as may be allowed by the court, the other or others may be served or appear at any time prior to trial.(c) Contents of summons.(1) The summons shall contain the name of the court, the address of the court, the names of the parties to the action, and the county in which it is brought. It shall be directed to the defendant, state the name, address and telephone number of the plaintiff’s attorney, if any, and otherwise the plaintiff’s address and telephone number. It shall state the time within which the defendant is required to answer the complaint in writing, and shall notify the defendant that in case of failure to do so, judgment by default will be rendered against the defendant. It shall state either that the complaint is on file with the court or that the complaint will be filed with the court within ten days of service.(2) If the action is commenced under Rule 3(a)(2), the summons shall state that the defendant need not answer if the complaint is not filed within 10 days after service and shall state the telephone number of the clerk of the court where the defendant may call at least 13 days after service to determine if the complaint has been filed.(3) If service is made by publication, the summons shall briefly state the subject matter and the sum of money or other relief demanded, and that the complaint is on file.(d) By whom served. The summons and complaint may be served in this state or any other state or territory of the United States, by the sheriff or constable, or by the deputy of either, by a United States Marshal or by the marshal’s deputy, or by any other person 18 years of age or older at the time of service, and not a party to the action or a party’s attorney.(e) Personal service. Personal service shall be made as follows:(1) Upon any individual other than one covered by subparagraphs (2), (3) or (4) below, by delivering a copy of the summons and/or the complaint to the individual personally, or by leaving a copy at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion there residing, or by delivering a copy of the summons and/or the complaint to an agent authorized by appointment or by law to receive service of process;(2) Upon an infant (being a person under 14 years) by delivering a copy to the infant and also to the infant’s father, mother or guardian or, if none can be found within the state, then to any person having the care and control of the infant, or with whom the infant resides, or in whose service the infant is employed;(3) Upon a natural person judicially declared to be of unsound mind or incapable of conducting his own affairs, by delivering a copy to the person and to the person’s legal representative if one has been appointed and in the absence of such representative, to the individual, if any, who has care, custody or control of the person;(4) Upon an individual incarcerated or committed at a facility operated by the state or any of its political subdivisions, by delivering a copy to the person who has the care, custody, or control of the individual to be served, or to that person’s designee or to the guardian or conservator of the individual to be served if one has been appointed, who shall, in any case, promptly deliver the process to the individual served;(5) Upon any corporation, not herein otherwise provided for, upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy thereof to an officer, a managing or general agent, or 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 defendant. If no such officer or agent can be found within the state, and the defendant has, or advertises or holds itself out as having, an office or place of business within the state or elsewhere, or does business within this state or elsewhere, then upon the person in charge of such office or place of business;(6) Upon an incorporated city or town, by delivering a copy thereof to the recorder;(7) Upon a county, by delivering a copy to the county clerk of such county;(8) Upon a school district or board of education, by delivering a copy to the superintendent or business administrator of the board;(9) Upon an irrigation or drainage district, by delivering a copy to the president or secretary of its board;(10) Upon the state of Utah, in such cases as by law are authorized to be brought against the state, by delivering a copy to the attorney general and any other person or agency required by statute to be served; and(11) Upon a department or agency of the state of Utah, or upon any public board, commission or body, subject to suit, by delivering a copy to any member of its governing board, or to its executive employee or secretary.(f) Service and proof of service in a foreign country. Service in a foreign country shall be made as follows:(1) In the manner prescribed by the law of the foreign country for service in an action in any of its courts of general jurisdiction; or(2) Upon an individual, by personal delivery; and upon a corporation, partnership or association, by delivering a copy to an officer or a managing general agent; provided that such service be made by a person who is not a party to the action, not a party’s attorney, and is not less than 18 years of age, or who is designated by order of the court or by the foreign court; or(3) By any form of mail, requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served as ordered by the court. Proof of service in a foreign country shall be made as prescribed in these rules for service within this state, or by the law of the foreign country, or by order of the court. When service is made pursuant to subpart (3) of this subdivision, proof of service shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court.(g) Other service. Where the identity or whereabouts of the person to be served are unknown and cannot be ascertained through reasonable diligence, where service upon all of the individual parties is impracticable under the circumstances, or where there exists good cause to believe that the person to be served is avoiding service of process, the party seeking service of process may file a motion supported by affidavit requesting an order allowing service by publication, by mail, or by some other means. The supporting affidavit shall set forth the efforts made to identify, locate or serve the party to be served, or the circumstances which make it impracticable to serve all of the individual parties. If the motion is granted, the court shall order service of process by publication, by mail from the clerk of the court, by other means, or by some combination of the above, provided that the means of notice employed shall be reasonably calculated, under all the circumstances, to apprise the interested parties of the pendency of the action to the extent reasonably possible or practicable. The court’s order shall also specify the content of the process to be served and the event or events as of which service shall be deemed complete. A copy of the court’s order shall be served upon the defendant with the process specified by the court.(h) Manner of proof. In a case commenced under Rule 3(a)(1), the party serving the process shall file proof of service with the court promptly, and in any event within the time during which the person served must respond to the process, and proof of service must be made within ten days after such service. Failure to file proof of service does not affect the validity of the service. In all cases commenced under Rule 3(a)(1) or Rule 3(a)(2), the proof of service shall be made as follows:(1) If served by a sheriff, constable, United States Marshal, or the deputy of any of them, by certificate with a statement as to the date, place, and manner of service;(2) If served by any other person, by affidavit with a statement as to the date, place, and manner of service, together with the affiant’s age at the time of service;(3) If served by publication, by the affidavit of the publisher or printer or that person’s designated agent, showing publication, and specifying the date of the first and last publications; and an affidavit by the clerk of the court of a deposit of a copy of the summons and complaint in the United States mail, if such mailing shall be required under this rule or by court order;(4) If served by United States mail, by the affidavit of the clerk of the court showing a deposit of a copy of the summons and complaint in the United States mail, as may be ordered by the court, together with any proof of receipt;(5) By the written admission or waiver of service by the person to be served, duly acknowledged, or otherwise proved.(i) Amendment. 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.(j) Refusal of copy. If the person to be served refuses to accept a copy of the process, service shall be sufficient if the person serving the same shall state the name of the process and offer to deliver a copy thereof.(k) Date of service to be endorsed on copy. At the time of service, the person making such service shall endorse upon the copy of the summons left for the person being served, the date upon which the same was served, and shall sign his or her name thereto, and, if an officer, add his or her official title.(l) Designation of newspaper for publication of notice. In any proceeding where summons or other notice is required to be published, the court shall, upon the request of the party applying for such publication, designate the newspaper and authorize and direct that such publication shall be made therein; provided, that the newspaper selected shall be a newspaper of general circulation in the county where such publication is required to be made and shall be published in the English language.(Amended effective March 1, 1988; April 1, 1990; April 1, 1996.)Rule 45. Subpoena.(a) Form; issuance.(1) Every subpoena shall:(A) issue from the court in which the action is pending;(B) state the title of the action, the name of the court from which it is issued, the name and address of the party or attorney serving the subpoena, and its civil action number;(C) command each person to whom it is directed to appear to give testimony at trial, or at hearing, or at deposition, or to produce or to permit inspection and copying of documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified; and(D) set forth the text of Notice to Persons Served with a Subpoena, in substantially similar form to Form 30 in the Appendix of Forms to these rules.(2) A command to produce or to permit inspection and copying of documents or tangible things, or to permit inspection of premises, may be joined with a command to appear at trial, or at hearing, or at deposition, or may be issued separately.(3) The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney admitted to practice in the court in which the action is pending may also issue and sign a subpoena as an officer of the court.(b) Service; scope.(1) Generally.(A) A subpoena may be served by any person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made as provided in Rule 4(e) for the service of process and, if the person’s appearance is commanded, by tendering to that person the fees for one day’s attendance and the mileage allowed by law. When the subpoena is issued on behalf of the United States, or this state, or any officer or agency of either, fees and mileage need not be tendered. Prior notice of any commanded production or inspection of documents or tangible things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(b).(B) Proof of service when necessary shall be made by filing with the clerk of the court from which the subpoena is issued a statement of the date and manner of service and of the names of the persons served, certified by the person who made the service.(C) Service of a subpoena outside of this state, for the taking of a deposition or production or inspection of documents or tangible things or inspection of premises outside this state, shall be made in accordance with the requirements of the jurisdiction in which such service is made.(2) Subpoena for appearance at trial or hearing. A subpoena commanding a witness to appear at a trial or at a hearing pending in this state may be served at any place within the state.(3) Subpoena for taking deposition.(A) A person who resides in this state may be required to appear at deposition only in the county where the person resides, or is employed, or transacts business in person, or at such other place as the court may order. A person who does not reside in this state may be required to appear at deposition only in the county in this state where the person is served with a subpoena, or at such other place as the court may order.(B) A subpoena commanding the appearance of a witness at a deposition may also command the person to whom it is directed to produce or to permit inspection and copying of documents or tangible things relating to any of the matters within the scope of the examination permitted by Rule 26(b), but in that event the subpoena will be subject to the provisions of Rule 30(b) and paragraph (c) of this rule.(4) Subpoena for production or inspection of documents or tangible things or inspection of premises. A subpoena to command a person who is not a party to produce or to permit inspection and copying of documents or tangible things or to permit inspection of premises may be served at any time after commencement of the action. The scope and procedure shall comply with Rule 34, except that the person must be allowed at least 14 days to comply as stated in subparagraph (c)(2)(A) of this rule. The party serving the subpoena shall pay the reasonable cost of producing or copying the documents or tangible things. Upon the request of any other party and the payment of reasonable costs, the party serving the subpoena shall provide to the requesting party copies of all documents obtained in response to the subpoena.(c) Protection of persons subject to subpoenas.(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court from which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney’s fee.(2)(A) A subpoena served upon a person who is not a party to produce or to permit inspection and copying of documents or tangible things or to permit inspection of premises, whether or not joined with a command to appear at trial, or at hearing, or at deposition, must allow the person at least 14 days after service to comply, unless a shorter time has been ordered by the court for good cause shown.(B) A person commanded to produce or to permit inspection and copying of documents or tangible things or to permit inspection of premises need not appear in person at the place of production or inspection unless also commanded to appear at trial, at hearing, or at deposition.(C) A person commanded to produce or to permit inspection and copying of documents or tangible things or inspection of premises may, before the time specified for compliance with the subpoena, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the documents or tangible things or inspection of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.(3)(A) On timely motion, the court from which a subpoena was issued shall quash or modify the subpoena if it:(i) fails to allow reasonable time for compliance;(ii) requires a resident of this state who is not a party to appear at deposition in a county in which the resident does not reside, or is not employed, or does not transact business in person; or requires a non-resident of this state to appear at deposition in a county other than the county in which the person was served;(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies;(iv) subjects a person to undue burden.(B) If a subpoena:(i) requires disclosure of a trade secret or other confidential research, development, or commercial information;(ii) requires disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study made not at the request of any party;(iii) requires a resident of this state who is not a party to appear at deposition in a county in which the resident does not reside, or is not employed, or does not transact business in person; or(iv) requires a non-resident of this state who is not a party to appear at deposition in a county other than the county in which the person was served; the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party serving the subpoena shows a substantial need for the testimony or material that cannot otherwise be met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.(d) Duties in responding to subpoena.(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.(e) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. An adequate cause for failure to obey exists when a subpoena purports to require a nonparty to appear or produce at a place not within the limits provided by subparagraph (c)(3)(A)(ii).(f) Procedure where witness conceals himself or fails to attend. If a witness evades service of a subpoena, or fails to attend after service of a subpoena, the court may issue a warrant to the sheriff of the county to arrest the witness and bring the witness before the court.(g) Procedure when witness is confined in jail. If the witness is a prisoner confined in a jail or prison within the state, an order for examination in the prison upon deposition or, in the discretion of the court, for temporary removal and production before the court or officer for the purpose of being orally examined, may be made upon motion, with or without notice, by a justice of the Supreme Court, or by the district court of the county in which the action is pending.(h) (h) Subpoena unnecessary; when. A person present in court, or before a judicial officer, may be required to testify in the same manner as if the person were in attendance upon a subpoena.(Amended effective January 1, 1995.)

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