South Dakota Foreclosure Process Server Laws
By admin | April 9, 2010
15-6-4(a). Summons — Form. The summons shall be legibly subscribed by the plaintiff or his attorney and directed to the defendant, and shall require him to answer the complaint and serve a copy of his answer on the subscriber at a place in the state to be specified in which there is a post office within thirty days after the service of the summons, exclusive of the day of service, and shall notify him that in case of his failure to answer, judgment by default may be rendered against him as requested in the complaint.
Whenever the form of the summons is specified in any statute or rule relating to any action, remedy or special proceeding, the form so specified shall be used.
15-6-4(b). Summons served without complaint. A copy of the complaint need not be served with the summons. In such case the summons must state where the complaint is or will be filed.
If the complaint is not served with the summons and the defendant within thirty days after service of the summons, in any such case, causes notice of appearance to be given, in person or by attorney, and demands in writing a copy of the complaint specifying a place within the state where it may be served, a copy of the complaint must, within twenty days thereafter, be served accordingly. After such service of the complaint, the defendant has thirty days to answer or otherwise proceed against the complaint.
In any of such cases where the same attorney appears for different parties, only one copy of a notice, complaint, answer, motion, or other paper in the action need be served upon him, unless otherwise specifically ordered by the court in any case.
15-6-4(c). By whom summons served. The summons may be served by the sheriff or a constable of the county or other comparable political subdivision where the defendant may be found, or in the District of Columbia by the United States marshal or a deputy, or by any other person not a party to the action who at the time of making such service is an elector of any state. If the defendant to be served is an Indian residing in Indian country, the summons may be served by a person not a party to the action who at the time of making such service is an elector of any state. The service shall be made and the summons returned with proof of the service, with all reasonable diligence, to the plaintiff’s attorney, if any, otherwise to the plaintiff. The plaintiff or the plaintiff’s attorney may by endorsement on the summons fix a time for the service thereof, and the service shall be made accordingly.
15-6-4(d). Personal service of summons. The summons shall be served by delivering a copy thereof. Service in the following manner shall constitute personal service:
(1) If the action be against a domestic private corporation, on the president or other head of the corporation, secretary, cashier, treasurer, a director, or managing or registered agent thereof, and such service may be made within or without this state. In case the sheriff shall return the summons with his certificate that no such officer, director, or agent can conveniently be found in his county, service may be made by leaving a copy of the summons and complaint at any office of such corporation within this state, with the person in charge of such office;
(2) If the action be against a foreign private corporation, on the president or other head of the corporation, secretary, cashier, treasurer, a director or managing agent thereof;
(3) In an action against a railroad corporation or against a person, firm, or corporation operating an elevator or licensed warehouse in this state, service may be made by serving any of the persons mentioned in subparagraphs (1) and (2) of this subsection, or by service upon any acting ticket, station, or freight agent of a railroad company or upon any acting agent in charge of any such elevator or warehouse, in the county where the action or proceeding is commenced;
(4) If the action be against a public corporation within this state, service may be made as follows:
(i) Upon a county, by serving upon any county commissioner;
(ii) Upon a first or second class municipality, by serving upon the mayor or any alderman or commissioner;
(iii) Upon a third class municipality, by serving upon any trustee;
(iv) Upon an organized township, by serving upon any supervisor; and
(v) Upon any school district, by serving upon any member of the school board or board of education; and
(vi) Upon a consumers power district, by serving upon any member of the board of directors;
(5) If the action be against a minor, upon a parent or person having custody, and if the minor be over the age of fourteen years, then also upon such minor personally, and in any event upon the legally appointed guardian or conservator, if there be one. If a guardian ad litem has been appointed, such service shall also be made on such guardian ad litem;
(6) If the action be against a person judicially declared to be mentally incompetent, or who is a patient at an institution for persons with mental illnesses or developmental disabilities or for whom a guardian or conservator has been legally appointed, upon such guardian or conservator, and upon the administrator or superintendent of such institutions for persons with mental illnesses or developmental disabilities, or person having custody, and also upon the person with mental illness or a developmental disability; provided that if the person with mental illness or a developmental disability is a patient of an institution for persons with mental illnesses or developmental disabilities, and the administrator or superintendent thereof shall certify in writing that service upon such person personally would be unavailing or injurious to his physical or mental well-being, and such certificate be filed, service upon such individual may be dispensed with by order of court;
(7) If against the state or any of its institutions, departments, or agencies, by service upon such officer or employee as may be designated by the statute authorizing such action, and upon the attorney general. In all matters involving title to land owned or held in trust by the state or any of its institutions, departments, or agencies, upon the commissioner of school and public lands and the attorney general. In all matters otherthan those involving title to such lands, if no officer or employee is designated, then upon the Governor and the attorney general. Any of such officers or employees referred to in § 15-6-4 may admit service of the summons with the same legal effect as if it had been personally served upon them by an officer or elector;
(8) If the action be against a state officer, employee or agent arising out of his office, employment or agency, a copy of the summons and complaint shall be mailed, certified mail, postage prepaid to the attorney general together with an admission of service and a return envelope, postage prepaid, addressed to the sender. The executed admission of service shall be filed by the sender in accordance with § 15-6-5(d);
(9) Whenever the manner of service of process is specified in any statute or rule relating to any action, remedy or special proceedings the manner of service so specified shall be followed;
(10) In all other cases, to the defendant personally; and
(11) If the action be against a business with a fictitious name, upon the owner or other head of the business, secretary, cashier, treasurer, director, manager or bookkeeper thereof, and such service may be made within or without this state.
(12) In an action against a person or business entity in a foreign country, service may be made as follows:
(i) By an 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
(ii) If there is no internationally agreed means of service, service reasonably calculated to give notice may be 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 court of general jurisdiction;
(B) As directed by the foreign authority in response to a letter rogatory or letter request; or
(C) Unless prohibited by the law of the foreign country; by one delivery to the individual personally; upon a corporation, limited liability company, limited partnership or partnership or association, by delivery to an officer, or a managing or general agent; or by any form of mail requiring a signed receipt; or
(iii) As directed by the court.
Service under this subdivision may be made by any person authorized by § 15-6-4(c), anyone duly authorized to serve lawful summons by the law of the country where service is to be made, pursuant to the applicable treaty or convention, or by anyone designated by order of the court or the foreign court. Proof of service may be made as prescribed in § 15-6-4(g), pursuant to the applicable treaty or convention, by order of the court, or by law of the foreign country. Proof of service by mail shall include an affidavit or certificate of addressing and mailing.
15-6-4(e). Substituted personal service of summons authorized. Service in the following manner shall also constitute personal service. If the defendant cannot be found conveniently, service may be made by leaving a copy at his dwelling house in the presence of a member of his family over the age of fourteen years or if the defendant resides in the family of another, with a member of such age of the family with which he resides. If the defendant is a private corporation and no general officer, director, managing agent, or other representative mentioned in § 15-6-4(d) as qualified to receive service can conveniently be found, service may be made on such corporation by leaving a copy at the place of business of such qualified person with any officer or employee over fourteen years of age.
15-6-4(f). Service upon party not a resident of or found within state. Whenever a statute of this state provides for the service of a legal process upon a party not a resident of or found within the state, service shall be made under the circumstances and in the manner prescribed by the statute.
15-6-4(g). Proof of service. Proof of the service of the summons and complaint or of any pleading, process, or other paper must state the time, place, and manner of such service or of publication and mailing and must be made as follows:
(1) If served by a sheriff or a county constable, his certificate thereof;
(2) If by any other person, his affidavit thereof;
(3) The written admission of the party or his representative upon whom service might have been made for such party;
(4) In case of publication, by affidavit of the printer, his foreman, or principal clerk or the publisher of the newspaper showing the same and an affidavit of mailing of copies as required by law; or
(5) In case of mailing, by affidavit of mailing and admission of service
15-6-4(h). Amendment of process. The court in its discretion and on such terms as it deems just may at any time allow any summons or other process or proof of service thereof to be amended, unless it clearly appears that substantial rights of the person against whom the process issued would be prejudiced thereby.
15-6-4(i). Service by mail — Admission of service — Costs. Notwithstanding any other provision of law, a summons may be served upon a defendant in any action by mailing a copy of the summons, two copies of the notice and admission of service, conforming substantially to the form provided for in § 15-6-4(j), and a return envelope, postage prepaid, addressed to the sender. The notice and admission of service shall set forth that the failure to sign and return the admission of service within twenty days after the date of mailing without good cause will result in the court ordering the person so served to pay the costs of personal service.
Unless good cause is shown for not returning the admission of service to the sender within twenty days of mailing, the court shall order the payment of the costs of personal service to be paid by the defendant in the action.
Topics: Process Service | No Comments »
Nevada Foreclosure Process Server Law
By admin | April 9, 2010
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 or to the plaintiff’s attorney, who shall be responsible for service of the summons and a copy of the complaint. Upon request of the plaintiff, separate or additional summons shall issue against any defendants.
(b) Same: Form. The summons shall be signed by the justice or clerk, be under the seal of the court, contain the name of the court and township and county 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 him that in case of his failure to do so judgment by default will be rendered against him for the relief demanded in the complaint. When service of the summons is made by publication, the summons shall, in addition to any special statutory requirements, also contain a brief statement of the object of the action substantially as follows: “This action is brought to recover a judgment for the sum of (so much money), due and owing,†or as the case may be.
(c) By Whom Served. Process shall be served by the constable, or by his deputy, or by the sheriff of the county where the defendant is found, or by his deputy, or by any citizen of the United States over 18 years of age, except that a subpoena may be served as provided in Rule 45; where the service of process is made outside of the United States, after an order of publication, it may be served either by any citizen of the United States over 18 years of age or by any resident of the country, territory, colony or province, who is over 18 years of age.
(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 by delivering a copy of the summons attached to a copy of the complaint as follows:
(1) If the suit is against a corporation formed under the laws of this state; to the president or other head of the corporation, secretary, cashier, managing agent, or resident agent thereof; provided, when for any reason service cannot be had in the manner hereinabove provided, then service may be made upon such corporation by delivering to the secretary of state, or his deputy, a copy of said summons attached to a copy of the complaint, and by posting a copy of said process in the office of the clerk or justice of the court in which such action is brought or pending; defendant shall have 20 days after such service and posting in which to appear and answer; provided, however, that before such service shall be authorized, plaintiff shall make or cause to be made and filed in such cause an affidavit setting forth the facts showing that personal service on or notice to the officers, managing agent or resident agent of said corporation cannot be had within the state; and provided further, that if it shall appear from such affidavit that there is a last known address of a known officer of said corporation outside the state, plaintiff shall, in addition to and after such service upon the secretary of state and posting, mail or cause to be mailed to such known officer at such address by registered mail, a copy of the summons and a copy of the complaint, and in all such cases defendant shall have 20 days from the date of such mailing within which to answer or plead.
(2) If the suit is against a foreign corporation, or a nonresident partnership, joint-stock company or association, doing business and having a managing or business agent, cashier, or secretary within this state; to such agent, cashier, or secretary or to an agent designated for service of process as required by law; or in the event no such agent is designated, to the secretary of state or the deputy secretary of state, as provided by law.
(3) If against a minor, under the age of 14 years, residing within this state, to such minor, personally, and also to his father, mother, or 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 resides, or in whose service he is employed.
(4) If against a person residing within this state who has been judicially declared to be of unsound mind, or incapable of conducting his own affairs, and for whom a guardian has been appointed, to such person and also to his guardian.
(5) If against a county, city, or town, to the chairman of the board of commissioners, president of the council or trustees, mayor of the city, or other head of the legislative department thereof.
(6) In all other cases to the defendant personally, or by leaving copies thereof at his 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.
(e) Same: Other Service.
(1) Service by Publication.
(i) General. When the person on whom service is to be made resides out of the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of summons, and the fact shall appear, by affidavit, to the satisfaction of the court or a justice thereof, and it shall appear, either by affidavit or by a verified complaint on file, that a cause of action exists against the defendant in respect to whom the service is to be made, and that he is a necessary or proper party to the action, such court or justice may grant an order that the service be made by the publication of summons.
Provided, when said affidavit is based on the fact that the party on whom service is to be made resides out of the state, and the present address of the party is unknown, it shall be a sufficient showing of such fact if the affiant shall state generally in such affidavit that at a previous time such person resided out of this state in a certain place (naming the place and stating the latest date known to affiant when such party so resided there); that such place is the last place in which such party resided to the knowledge of affiant; that such party no longer resides at such place; that affiant does not know the present place of residence of such party or where such party can be found; and that affiant does not know and has never been informed and has no reason to believe that such party now resides in this state; and, in such case, it shall be presumed that such party still resides and remains out of the state, and such affidavit shall be deemed to be a sufficient showing of due diligence to find the defendant. This rule shall apply to all manner of civil actions.
(ii) Property. In any action which relates to, or the subject of which is, real or personal property in this state in which such person defendant or corporation defendant has or claims a lien or interest, actual or contingent, therein, or in which the relief demanded consists wholly or in part of excluding such person or corporation from any interest therein, and the said defendant resides out of the state or has departed from the state, or cannot after due diligence be found within the state, or conceals himself to avoid the service of summons, the justice may make an order that the service be made by the publication of summons; said service by publication shall be made in the same manner as now provided in all cases of service by publication.
(iii) Publication. The order shall direct the publication to be made in a newspaper, published in the State of Nevada, to be designated by the court or justice thereof, for a period of four weeks, and at least once a week during said time. In addition to in-state publication, where the present residence of the defendant is unknown the order may also direct that publication be made in a newspaper published outside the State of Nevada whenever the court is of the opinion that such publication is necessary to give notice that is reasonably calculated to give a defendant actual notice of the proceedings.In case of publication, where the residence of a nonresident or absent defendant is known, the court or justice shall also direct a copy of the summons and complaint to be deposited in the post office, directed to the person to be served at his place of residence. When publication is ordered, personal service of a copy of the summons and complaint, out of the state, shall be equivalent to completed service by publication and deposit in the post office, and the person so served shall have 20 days after said service to appear and answer or otherwise plead. The service of summons shall be deemed complete in cases of publication at the expiration of four weeks from the first publication, and in cases when a deposit of a copy of the summons and complaint in the post office is also required, at the expiration of four weeks from such deposit.
[As amended; effective March 1, 1997.]
(2) Personal Service Outside the State. Personal service of summons upon a party outside this state may be made by delivering a copy of the summons, together with a copy of the complaint, to the party served in the manner provided by statute or rule of court for service upon a party of like kind within this state. This method of service may be used only where the party being served has submitted to the jurisdiction of the courts of this state as provided by NRS 14.065. The methods of service are cumulative, and may be utilized with, after, or independently of, other methods of service.
[As amended; effective December 12, 1994.]
(3) Statutory Service. Whenever a statute provides for service, service may be made under the circumstances and in the manner prescribed by the statute.
(f) Territorial Limits of Effective Service. All process, including subpoenas, may be served anywhere within the territorial limits of the state and, when a statute or rule so provides, beyond the territorial limits of the state. A voluntary appearance of the defendant shall be equivalent to personal service of process upon him in this 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 the process. Proof of service shall be as follows:
(1) If served by the sheriff, the constable or a deputy of either, the affidavit or certificate of the sheriff, constable or deputy; or
(2) If by any other person, his affidavit thereof; or
(3) In case of publication, the affidavit of the publisher, his foreman or principal clerk, or other employee having knowledge thereof, showing the same, and an affidavit of a deposit of a copy of the summons in the post office, if the same shall have been deposited; or
(4) The written admission of the defendant.
In case of service otherwise than by publication, the certificate or affidavit shall state the date, place and manner of service. Failure to make proof of service shall not affect the validity of the service.
(h) Amendment. At anytime 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) Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint 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.
[As amended; effective June 28, 1988.]
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Louisiana Foreclosure Process Server Law
By admin | April 9, 2010
Chapter 2. Service on PersonsArt. 1231. Types of service; time of makingService of citation or other process may be either personal or domiciliary, and except as otherwise provided by law, each has the same effect. Service, whether personal or domiciliary, may be made at any time of day or night, including Sundays and holidays.Art. 1232. Personal servicePersonal service is made when a proper officer tenders the citation or other process to the person to be served.Art. 1233. Same; where madePersonal service may be made anywhere the officer making the service may lawfully go to reach the person to be served.Art. 1234. Domiciliary serviceDomiciliary service is made when a proper officer leaves the citation or other process at the dwelling house or usual place of abode of the person to be served with a person of suitable age and discretion residing in the domiciliary establishment.Art. 1234. Domiciliary serviceDomiciliary service is made when a proper officer leaves the citation or other process at the dwelling house or usual place of abode of the person to be served with a person of suitable age and discretion residing in the domiciliary establishment.Case Notes:1. Person’s domicile of origin continues until another is acquired. Change in domicile requires physical presence of individual in new domicile coupled with present intent to permanently reside in new domicile. In establishing domicile, intent is based on actual state of facts and not what one declares them to be. Pattan v. Fields, 669 So.2d 1233 (La. App. 1 Cir., 1995); writ denied 661 So.2d 1341, 1342.2. An 11-year-old was of suitable age and discretion to accept service on behalf of his stepfather concerning notice of default judgment where deputy asked questions designed to ascertain if child was of suitable age and understanding before making service. First Nat. Bank of Jefferson Parish v. Rall, 607 So.2d 716 (App. 4 Cir., 1992).
Art. 1235. Service on representative
(A) Service is made on a person who is represented by another by appointment of court, operation of law, or mandate, through personal or domiciliary service on such representative.(B) Service on an attorney, as a representative of a client, is proper when the attorney’s secretary is served in the attorney’s office.(C) For the purposes of this Article “secretary” shall be defined as the person assigned to a particular attorney and who is charged with the performance of that part of the attorney’s business concerned with the keeping of records, the sending and receiving of correspondence, and the preparation and monitoring of the attorney’s appointments calendar.Art. 1235.1. Service on incarcerated personService is made on a person who is incarcerated in a jail or detention facility through personal service on the warden or his designee for that shift. The warden or his designee shall in turn make personal service on the person incarcerated. Proof of service shall be made by filing in the record the affidavit of the person serving the citation and pleadings on the person who is incarcerated.Art. 1236. Service on clerical employees of physiciansService on any physician, when not a party to an action, may be made at his or her office through personal service on any clerical employee of such physician.Art. 1237. Service on individual in multiple capacitiesIn cases wherein an individual is named in pleadings in more than one capacity, personal service on that individual is sufficient to constitute service of process on that individual in all capacities, including but not limited to as an individual, tutor, or a representative of a legal or quasi legal entity, when it is clear from the pleadings or service instructions the capacities in which the individual is being served.Chapter 3. Service on Legal and Quasi Legal Entities
Art. 1261. Domestic or foreign corporation
(A) Service of citation or other process on a domestic or foreign corporation is made by personal service on any one of its agents for service of process.(1) If the corporation has failed to designate an agent for service of process, if there is no registered agent by reason of death, resignation, or removal, or if the person attempting to make service certifies that he is unable, after due diligence, to serve the designated agent, service of the citation or other process may be made by any of the following methods:(2) By personal service on any employee of suitable age and discretion at any place where the business of the corporation is regularly conducted.
(3) By service of process under the provisions of R.S. 13:3204, if the corporation is subject to the provisions of R.S. 13:3201.(C) Service of citation or other process on a bank is made pursuant to R.S. 6:285(C).Case Note:Service upon Louisiana corporation by leaving copy of petition with wife of corporation’s registered agent at agent’s residence was insufficient, and proceedings which resulted in default judgment against corporation were null. Service Electric of Louisiana, Inc. v. Clifton Briley Inc., 479 So.2d 691 (App. 3 Cir., 1985).
Art. 1262. Same; secretary of stateIf the officer making service certifies that he is unable, after diligent effort, to have service made as provided in Article 1261, then the service may be made personally on the secretary of state, or on a person in his office designated to receive service of process on corporations. The secretary of state shall forward this citation to the corporation at its last known address.Art. 1263. PartnershipService of citation or other process on a partnership is made by personal service on a partner. When the officer certifies that he is unable, after diligent effort, to make service in this manner, he may make personal service on any employee of suitable age and discretion at any place where the business of the partnership is regularly conducted.Art. 1264. Unincorporated associationService on an unincorporated association is made by personal service on the agent appointed, if any, or in his absence, upon a managing official, at any place where the business of the association is regularly conducted. In the absence of all officials from the place where the business of the association is regularly conducted, service of citation or other process may be made by personal service upon any member of the association.Art. 1265. Political entity; public officerService of citation or other process on any political subdivision, public corporation, or state, parochial or municipal board or commission is made at its office by personal service upon the chief executive officer thereof, or in his absence upon any employee thereof of suitable age and discretion. A public officer, sued as such, may be served at his office either personally, or in his absence, by service upon any of his employees of suitable age and discretion. If the political entity or public officer has no established office, then service may be made at any place where the chief executive officer of the political entity or the public officer to be served may be found.Art. 1266. Limited liability company
(A) Service of citation or other process on a domestic or foreign limited liability company is made by personal service on any one of its agents for service of process.(B) If the limited liability company has failed to designate an agent for service of process, if there is no registered agent by reason of death, resignation, or removal, or if the person attempting to make service certifies that he is unable, after due diligence, to serve the designated agent, service of the citation or other process may be made by any of the following methods:(1) Personal service on any manager if the management of the limited liability company is vested in one or more managers or if management is not so vested in managers, then on any member.(2) Personal service on any employee of suitable age and discretion at any place where the business of the limited liability company is regularly conducted.(3) Service of process under the provisions of R.S. 13:3204, if the limited liability company is subject to the provisions of R.S. 13:3201.(4) Service of process on an attorney appointed to represent the limited liability company under Article 5091 if the person attempting to make service certifies that he is unable, after due diligence, to make service on a manager, member, or employee as provided in Subparagraphs (1) and (2).Chapter 4. Persons Authorized to Make Service
Art. 1291. Service by sheriffExcept as otherwise provided by law, service shall be made by the sheriff of the parish where service is to be made or of the parish where the action is pending.Art. 1292. Sheriff’s returnThe sheriff shall endorse on a copy of the citation or other process the date, place, and method of service and sufficient other data to show service in compliance with law. He shall sign and return the copy promptly after the service to the clerk of court who issued it. The return, when received by the clerk, shall form part of the record, and shall be considered prima facie correct. The court, at any time and upon such terms as are just, 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.Art. 1293. Service by private personWhen the sheriff has not made service within five days after receipt of the process or when a return has been made certifying that the sheriff has been unable to make service, on motion of a party the court may appoint any person not a party over the age of majority, and residing within the state, to make service of process in the same manner as is required of sheriffs. Service of process made in this manner must be proved like any other fact in the case.Case Note:Service was invalid where court appointed president of detective agency as special process server, but defendant was actually served by president’s employee. Brickman v. Screven County Hosp. Authority, 599 So.2d 427 (App. 4 Cir., 1992).Art. 1355. Service of subpoenaA subpoena shall be served and a return thereon made in the same manner and with the same effect as a service of and return on a citation. When a party is summoned as a witness, service of the subpoena may be made by personal service on the witness’ attorney of record.Louisiana Revised Statutes13:3204. Service of process(B) If service of process cannot be made on the nonresident by registered or certified mail or by actual delivery, the court shall order that service of process be made on an attorney at law appointed to represent the defendant pursuant to Code of Civil Procedure Article 5091.(C) Service of process so made has the same legal force and validity as personal service on the defendant in this state.(D) For purposes of this Section, a “commercial courier” is any foreign or domestic business entity having as its primary purpose the delivery of letters and parcels of any type, and which:(1) Acquires a signed receipt from the addressee, or the addressee’s agent, of the letter or parcel upon completion of delivery.(2) Has no direct or indirect interest in the outcome of the matter to which the letter or parcel concerns.13:3471. Supplementary rules of service of processThe following rules supplement those governing the service of citation and other legal process in a civil action or proceeding contained in the Code of Civil Procedure:(a) If the foreign corporation or the foreign limited liability company is not one required by law to appoint an agent for the service of process, but has engaged in a business activity in this state, service of process in an action or proceeding on a cause of action resulting from such business activity in this state, or for any taxes due or other obligations arising therefrom, may be made on any employee or agent of the corporation or limited liability company of suitable age and discretion found in the state.(b) If such employees or agents are no longer in the state, or cannot be found after diligent effort, the officer charged with the duty of making the service shall make his return to the court, stating the efforts made by him to secure service and the reason why he was unable to do so. Thereupon the court shall order that service shall be made on the secretary of state, or on some other individual in his office whom the secretary of state may designate to receive service of process.(c) The secretary of state shall ascertain the domiciliary post office address of the corporation, or limited liability company and shall send the original papers served to the corporation or limited liability company by registered mail, with return receipt requested. The secretary of state shall retain in his office true copies of these papers, on which he shall note the date, the manner and other particulars of the service, and of the disposition made of the original papers.(2) In an action or proceeding brought in a parish other than that of the domicile of a defendant, citation and all other legal process may be served on this defendant in the parish where the action or proceeding was brought, if the defendant can be served therein. Otherwise, the process may be sent by the clerk of the court from which it issued to any parish where the defendant may be found, and service may be made by the sheriff or a constable of the latter parish.(3) When an action or proceeding is brought in the parish of the domicile of a defendant, and the latter is absent therefrom, service may be made on him in any parish of the state where he may be found.(4) An acceptance of service shall be dated, and if no date is shown thereon, the acceptance takes effect from the date of its filing in court. No acceptance of service shall affect the delays allowed by law or by the local rules of court.(5) The return of the serving officer on any citation or other legal process is conclusive, unless directly attacked. Such an attack may be made by rule in the action or proceeding, if made prior to judgment. If made after judgment, the return may be attacked only in a direct action to annul the judgment, which may be brought in the original action or proceeding. If the defendant was actually served, the court may correct an error in the return by an amendment thereof, on a rule brought against and tried contradictorily with the defendant who was served, or any other party who may be affected by the amendment.(6) Service of process on an inmate of a public institution may be made by the sheriff or any constable of the parish where the institution is situated.(7) Service of process by a sheriff or constable shall be returned into the court which issued the process as soon as possible after the service is made. In addition thereto, the serving officer shall keep a complete record thereof in a book specially provided for that purpose. If the original return is lost or destroyed, the entries in this book shall be received and recognized in lieu thereof, subject to the provisions of R.S. 13:3471(5).(8) Subsequent to service of the original petition in any civil action or proceeding, service of pleadings, documents, or notices that may be served by mail or delivery on an attorney of record may also be made by delivering a copy to the attorney by means of a telephonic facsimile communication device, if the attorney maintains such device at his office and the device is operating at the time service is made. When service is made as provided herein, the party or attorney making the service shall file in the record a certificate showing service was made by telephonic facsimile communication device.
13:3472. Service on foreign corporation through secretary of stateIn any case where service on a foreign corporation may be made through the secretary of state, under any law heretofore or hereafter enacted, such service may be made in person on the secretary of state anywhere in the state. Should the secretary of state be absent from his office, service may be made on the assistant secretary of state, or on some other individual in the office of the secretary of state designated by the latter to receive service of process in his absence, and such service has the same effect as if made upon the secretary of state personally.13:3474 Operation of motor vehicle by non-resident as appointment of secretary of state as agent for service of processThe acceptance by non-residents of the rights and privileges conferred by existing laws to operate motor vehicles on the public highways of the state of Louisiana, or the operation by a non-resident or his authorized agent, employee or person for whom he is legally responsible of a motor vehicle within the state of Louisiana, shall be deemed equivalent to an appointment by such non-resident of the secretary of state of Louisiana or his successor in office, to be his true and lawful attorney for service of process, as well as the attorney for service of process of the public liability and property damage insurer of the vehicle, if such insurer be a non-resident not authorized to do business in the state, upon whom or such insurer, may be served all lawful process in any action or proceeding against the non-resident, or such insurer, growing out of any accident or collision in which the non-resident may be involved while operating a motor vehicle in this state, or while same is operated by his authorized agent or employee. In the event of the death of such non-resident before service of process upon him, any action or proceeding growing out of such accident or collision may be instituted against the executors or administrators of such deceased non-resident, if there be such, and if not, then against his heirs or legatees, and service may be made upon them as provided in R.S. 13:3475. Process against the defendant or defendants, the non-resident, his executors or administrators, if there be such, and if not, then against his heirs or legatees, or the liability insurer of such vehicle, as the case may be, shall be of the same legal force and validity as if served upon such defendant personally.13:3475. Service on secretary of state; sending or delivering notice and copies; filing receipt or affidavit; continuances(A) The service of the process authorized by R.S. 13:3474 shall be made by serving a copy of the petition and citation on the secretary of state, or his successor in office, and such service shall be sufficient service upon said defendant, the nonresident, the executors or administrators of the deceased non-resident, if there be such, and if not, then against his heirs or legatees, or the nonresident liability insurer of the vehicle, as the case may be; provided that notice of such service, together with a copy of the petition and citation, is forthwith sent by the plaintiff by registered mail or certified mail with receipt requested, or is actually delivered to the defendant and the defendant’s return receipt, in case notice is sent by registered or certified mail, or affidavit of the party delivering the petition and citation in case notice is made by actual delivery, is filed in the proceedings before judgment can be entered against the defendant. 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.(B) For purposes of this Section, the return receipt indicating that the registered or certified mail was actually delivered, refused, or unclaimed, is satisfactory proof of service of process if mailed to the defendant’s address as indicated on the defendant’s safety responsibility personal accident report, SR10, or if such report was not timely filed with the Department of Public Safety and Corrections, if mailed to the defendant’s address as indicated on the accident report filed with the department by the law enforcement officer who responded to the accident.13:3476. Service by constable or court-appointed officer when service cannot be made by the sheriff; sheriff an interested partyWhenever the sheriff of any parish shall be interested in any suit or other legal process, or when there shall be no sheriff in office in any parish, or the sheriff shall be disqualified by law, from interest or otherwise, from serving any legal process, it shall be served by any regular constable of the parish, or by any officer appointed by the court. Such constable or officer shall have in the suit all powers, receive all the emoluments, and be liable to all the responsibilities of the sheriff.13:3477. Inability or refusal of constable or deputy constable to act; employment of sheriff or deputy; appointment of special deputy constableIn case of the inability or refusal to act on the part of the constable or a duly appointed deputy constable because of relationship, sickness or from other causes in civil suits, and in case of the execution of conservatory writs in civil suits, the justices of the peace may employ either the sheriff or his deputy or appoint a special deputy constable to execute all orders, citations, summons, seizures and writs.13:3478. Constable or deputy constable to act when not disqualified or unwilling or unable to actWhen there is a constable or duly appointed deputy constable not disqualified to act because of relationship, or unable to act onaccount of sickness or other cause, and who is willing to act, and who is personally present when conservatory writs are sued out, then and inthese cases, the justice of the peace for whose ward said constable shall have been elected or appointed and qualified, shall employ saidconstable or his duly appointed deputy constable to the exclusion of the sheriff or his deputy, or a special deputy constable, to execute all orders,citations, summons, seizures and writs in civil cases, and in such cases services made by other than said constable or his duly appointed deputy constable shall be void and of no effect.13:3479. Operation of water craft by non-resident as appointment of secretary of state as agent for service of processThe operation, navigation or maintenance by a non-resident or non-residents of a boat, ship, barge of other water craft in the state, either in person or through others, and the acceptance thereby by such non-resident or non-residents of the protection of the laws of the state for such water craft, or the operation, navigation or maintenance by a non-resident or non-residents of a boat, ship, barge or other water craft in the state, either in person or through others, other than under the laws of the state, shall be deemed equivalent to an appointment by each such non-resident of the Secretary of State, or his successor in office or some other person in his office during his absence he may designate, to be the true and lawful attorney of each such non-resident for service of process, upon whom may be served all lawful process in any suit, action or proceeding against such non-resident or non-residents growing out of any accident or collision in which such non-resident or non-residents may be involved while, either in person or through others, operating, navigating or maintaining a boat, ship, barge or other water craft in the state; and such acceptance or such operating, navigating or maintaining in the state of such water craft shall be a signification of each such non-resident’s agreement that any such process against him which is so served shall be of the same legal force and effect as if served on him personally.13:3480. Service of citation on secretary of state; sending or delivering notice and copies; filing receipt or affidavit; continuancesService of citation in any case provided in R.S. 13:3479 shall be made by serving a copy of the petition and citation on the secretary of state, or his successor in office, and such service shall be sufficient service upon any such non-resident; provided that notice of such service, together with a copy of the petition and citation are forthwith sent by registered mail by the plaintiff to the defendant, or actually delivered to the defendant, and the defendant’s return receipt, in case notice is sent by registered mail, or affidavit of the party delivering the petition and citation in case notice is made by actual delivery, is filed in the proceedings before judgment can be rendered against any such non-resident. 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.13:3481. Service of any other process on secretary of stateService of any process other than citation in any case provided by R.S. 13:3479 shall be made by serving a copy thereof on the secretary of state, and such service shall be sufficient service upon any such non-resident.13:3482. Not to affect other methods of process against non-residents R.S. 13:3479 through 13:3481Nothing in R.S. 13:3479 through 13:3481 shall be construed as affecting other methods of process against non-residents as now provided by existing laws.13:3483. Service in suits arising from sale or manufacture of sugar cane or syrupIn all cases provided in R.S. 13:3232 where suit is brought in the parish in which the domicile of defendant is not situated, service of petition, citation and other process shall be made by delivering the same to the agent, overseer or manager of the factory of defendant.13:3484. Mailing of process to deputy, constable, or marshal for service; mileage and mailing costs; sheriff not responsible for constable marshalWhen requested to do so by the party at whose instance service is to be made, and when the place where service is to be made is more than ten miles distant from the sheriff’s office, the sheriff may mail the process to be served to one of his deputies, a constable of a justice of the peace court, or to a constable or marshal of a city court, living in the vicinity of the place where service is to be made, for such service. If service is made as authorized in this section, the serving deputy, constable, or marshal shall make the return showing the manner in which service was made, and mail it to the sheriff for filing in the issuing court.When a party has requested service, as authorized in this section, whether the sheriff complies with the request or not, the only mileage for which the sheriff may charge is for the actual distance from the home or office, whichever is lesser, of the deputy, constable, or marshal to the place where service is to be made, and return. The sheriff may also charge the actual cost of mailing the process and return, if service is made as authorized in this section.The sheriff is not responsible for the performance or nonperformance of duties in making the service and return thereon by the constable or marshal to whom the process is mailed for service.13:3485. Appointment of agent for service of process by nonresident individual or partnership no defense to nonresident attachment unless notice filed with secretary of stateThe appointment of an agent for the service of process by a nonresident individual or partnership is no defense to an attachment of property on the grounds of the nonresidence of the defendant unless a written notice of such appointment, setting forth the name and address of the agent, has been filed with the secretary of state. The secretary of state shall keep available for public inspection a record of all such appointments, and the dates thereof.
Topics: Process Service | No Comments »
Mississippi Foreclosure Process Server Laws
By admin | April 9, 2010
RULE 4. SUMMONS(a) Summons: Issuance. Upon filing of the complaint, the clerk shall forthwith issue a summons.(1) At the written election of the plaintiff or the plaintiff’s attorney, the clerk shall:(A) Deliver the summons to the plaintiff or plaintiff’s attorney for service under subparagraphs (c)(1) or (c)(3) or (c)(4) or (c)(5) of this rule.(B) Deliver the summons to the sheriff of the county in which the defendant resides or is found for service under subparagraph (c)(2) of this rule.(C) Make service by publication under subparagraph (c)(4) of this rule.(2) The person to whom the summons is delivered shall be responsible for prompt service of the summons and a copy of the complaint. Upon request of the plaintiff, separate or additional summons shall issue against any defendants.(b) Same: Form. The summons shall be dated and 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 him that in case of his failure to do so judgment by default will be rendered against him for the relief demanded in the complaint. Where there are multiple plaintiffs or multiple defendants, or both, the summons, except where service is made by publication, may contain, in lieu of the names of all parties, the name of the first party on each side and the name and address of the party to be served. Summons served by process server shall substantially conform to Form 1A. Summons served by sheriff shall substantially conform to Form 1AA.(c) Service:(1) By Process Server. A summons and complaint shall, except as provided in subparagraphs (2) and (4) of this subdivision, be served by any person who is not a party and is not less than 18 years of age. When a summons and complaint are served by process server, an amount not exceeding that statutorily allowed to the sheriff for service of process may be taxed as recoverable costs in the action.(2) By Sheriff. A summons and complaint shall, at the written request of a party seeking service or such party’s attorney, be served by the sheriff of the county in which the defendant resides or is found, in any manner prescribed by subdivision (d) of this rule. The sheriff shall mark on all summons the date of the receipt by him, and within thirty days of the date of such receipt of the summons the sheriff shall return the same to the clerk of the court from which it was issued.(3) By Mail.(A) A summons and complaint may be served upon a defendant of any class referred to in paragraph (1) or (4) of subdivision (d) of this rule 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 conforming substantially to Form 1-B and a return envelope, postage prepaid, addressed to the sender.(B) If no acknowledgment of service under this subdivision of this rule is received by the sender within 20 days after the date of mailing, service of such summons and complaint may be made in any other manner permitted by this rule.(C) Unless good cause is shown for not doing so, the court shall order the payment of the costs of 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.(D) The notice and acknowledgment of receipt of summons and complaint shall be executed under oath or affirmation.(4) By Publication.(A) If the defendant in any proceeding in a chancery court, or in any proceeding in any other court where process by publication is authorized by statute, be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry and the post office address of such defendant be stated in the complaint, petition, or affidavit, or if it be stated in such sworn complaint or petition that the post office address of the defendant is not known to the plaintiff or petitioner after diligent inquiry, or if the affidavit be made by another for the plaintiff or petitioner, that such post office address is unknown to the affiant after diligent inquiry and he believes it is unknown to the plaintiff or petitioner after diligent inquiry by the plaintiff or petitioner, the clerk, upon filing the complaint or petition, account or other commencement of a proceeding, shall promptly prepare and publish a summons to the defendant to appear and defend the suit. The summons shall be substantially in the form set forth in Form 1-C.(B) The publication of said summons shall be made once in each week during three successive weeks in a public newspaper of the county in which the complaint or petition, account, cause or other proceeding is pending if there be such a newspaper, and where there is no newspaper in the county the notice shall be posted at the courthouse door of the county and published as above provided in a public newspaper in an adjoining county or at the seat of government of the state. Upon completion of publication, proof of the prescribed publication shall be filed in the papers in the cause. The defendant shall have thirty (30) days from the date of first publication in which to appear and defend. Where the post office address of a defendant is given, the street address, if any, shall also be stated unless the complaint, petition, or affidavit above mentioned, avers that after diligent search and inquiry said street address cannot be ascertained.(C) It shall be the duty of the clerk to hand the summons to the plaintiff or petitioner to be published, or, at his request, and at his expense, to hand it to the publisher of the proper newspaper for publication. Where the post office address of the absent defendant is stated, it shall be the duty of the clerk to send by mail (first class mail, postage prepaid) to the address of the defendant, at his post office, a copy of the summons and complaint and to note the fact of issuing the same and mailing the copy, on the general docket, and this shall be the evidence of the summons having been mailed to the defendant.(D) When unknown heirs are made parties defendant in any proceeding in the chancery court, upon affidavit that the names of such heirs are unknown, the plaintiff may have publication of summons for them and such proceedings shall be thereupon in all respects as are authorized in the case of a nonresident defendant. When the parties in interest are unknown, and affidavit of that fact be filed, they may be made parties by publication to them as unknown parties in interest.(E) Where summons by publication is upon any unmarried infant, mentally incompetent person, or other person who by reason of advanced age, physical incapacity or mental weakness is incapable of managing his own estate, summons shall also be had upon such other person as shall be required to receive a copy of the summons under paragraph (2) of subdivision (d) of this rule.(5) Service by Certified Mail on Person Outside State. In addition to service by any other method provided by this rule, a summons may be served on a person outside this state by sending a copy of the summons and of the complaint to the person to be served by certified mail, return receipt requested. Where the defendant is a natural person, the envelope containing the summons and complaint shall be marked “restricted delivery.” Service by this method shall be deemed complete as of the date of delivery as evidenced by the return receipt or by the returned envelope marked “Refused.”(d) Summons and Complaint: Person to Be Served. The summons and complaint shall be served together. Service by sheriff or process server shall be made as follows:(1) Upon an individual other than an unmarried infant or a mentally incompetent person,(A) by delivering a copy of the summons and of the complaint to him personally or to an agent authorized by appointment or by law to receive service of process; or (B) if service under subparagraph (1)(A) of this subdivision cannot be made with reasonable diligence, by leaving a copy of the summons and complaint at the defendant’s usual place of abode with the defendant’s spouse or some other person of the defendant’s family above the age of sixteen years who is willing to receive service, and by thereafter mailing a copy of the summons and complaint (by first class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after such mailing.(2)(A) upon an unmarried infant by delivering a copy of the summons and complaint to any one of the following: the infant’s mother, father, legal guardian (of either the person or the estate), or the person having care of such infant or with whom he lives, and if the infant be 12 years of age or older, by delivering a copy of the summons and complaint to both the infant and the appropriate person as designated above.(B) upon a mentally incompetent person who is not judicially confined to an institution for the mentally ill or mentally deficient or upon any other person who by reason of advanced age, physical incapacity or mental weakness is incapable of managing his own estate by delivering a copy of the summons and complaint to such person and by delivering copies to his guardian (of either the person or the estate) or conservator (of either the person or the estate) but if such person has no guardian or conservator, then by delivering copies to him and copies to a person with whom he lives or to a person who cares for him.(C) upon a mentally incompetent person who is judicially confined in an institution for the mentally ill or mentally retarded by delivering a copy of the summons and complaint to the incompetent person and by delivering copies to said incompetent’s guardian (of either the person or the estate) if any he has. If the superintendent of said institution or similar official or person shall certify by certificate endorsed on or attached to the summons that said incompetent is mentally incapable of responding to process, service of summons and complaint on such incompetent shall not be required. Where said confined incompetent has neither guardian nor conservator, the court shall appoint a guardian ad litem for said incompetent to whom copies shall be delivered.(D) where service of a summons is required under (A), (B) and (C) of this subparagraph to be made upon a person other than the infant, incompetent, or incapable defendant and such person is a plaintiff in the action or has an interest therein adverse to that of said defendant, then such person shall be deemed not to exist for the purpose of service and the requirement of service in (A), (B) and (C) of this subparagraph shall not be met by service upon such person.(E) if none of the persons required to be served in (A) and (B) above exist other than the infant, incompetent or incapable defendant, then the court shall appoint a guardian ad litem for an infant defendant under the age of 12 years and may appoint a guardian ad litem for such other defendant to whom a copy of the summons and complaint shall be delivered. Delivery of a copy of the summons and complaint to such guardian ad litem shall not dispense with delivery of copies to the infant, incompetent or incapable defendant where specifically required in (A), and (B) of this subparagraph.(3) Upon an individual confined to a penal institution of this state or of a subdivision of this state by delivering a copy of the summons and complaint to the individual, except that when the individual to be served is an unmarried infant or mentally incompetent person the provisions of subparagraph (d)(2) of this rule shall be followed.(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.(5) Upon the State of Mississippi or any one of its departments, officers or institutions, by delivering a copy of the summons and complaint to the Attorney General of the State of Mississippi.(6) Upon a county by delivering a copy of the summons and complaint to the president or clerk of the board of supervisors.(7) Upon a municipal corporation by delivering a copy of the summons and complaint to the mayor or municipal clerk of said municipal corporation.(8) Upon any governmental entity not mentioned above, by delivering a copy of the summons and complaint to the person, officer, group or body responsible for the administration of that entity or by serving the appropriate legal officer, if any, representing the entity. Service upon any person who is a member of the “group” or “body” responsible for the administration of the entity shall be sufficient.(e) Waiver. Any party defendant who is not an unmarried minor, mentally incompetent, or convict of felony may, without filing any pleading therein, waive the service of process or enter his or her appearance, either or both, in any action, with the same effect as if he or she had been duly served with process, in the manner required by law on the day of the date thereof. Such waiver of service or entry of appearance shall be in writing dated and signed by the defendant and duly sworn to or acknowledged by him or her, or his or her signature thereto be proven by two (2) subscribing witnesses before some officer authorized to administer oaths. Any guardian or conservator may likewise waive process on himself and/or his ward, and any executor, administrator, or trustee may likewise waive process on himself in his fiduciary capacity. However, such written waiver of service or entry of appearance must be executed after the day on which the action was commenced and be filed among the papers in the cause and noted on the general docket.(f) Return. The person serving the process shall make proof of service thereof to the court promptly. If service is made by a person other than a sheriff, such person shall make affidavit thereof. If service is made under paragraph (c)(3) of this rule, return shall be made by the sender’s filing with the court the acknowledgment received pursuant to such subdivision. If service is made under paragraph (c)(5) of this rule, the return shall be made by the sender’s filing with the court the return receipt or the returned envelope marked “Refused.” Failure to make proof of service does not affect the validity of the service.(g) 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 is issued.(h) Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint 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.
RULE 45. SUBPOENA(a) Form; Issuance.(1) Every subpoena shall be issued by the clerk under the seal of the court, 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 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 therein specified. The clerk shall issue a subpoena signed and sealed, but otherwise in blank, to a party requesting it, who shall fill it in before service. A command to produce 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) Subpoenas for attendance at a trial or hearing, for attendance at a deposition, and for production or inspection shall issue from the court in which the action is pending. In the case of a deposition to be taken in foreign litigation the subpoena shall be issued by a clerk of a court for the county in which the deposition is to be taken.(b) Place of Examination. A resident of the State of Mississippi may be required to attend a deposition, production or inspection 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 non-resident of this state subpoenaed within this state may be required to attend only in the county wherein he is served, or at such other convenient place as is fixed by an order of the court.(c) Service.(1) A subpoena may be served by a sheriff, or by his deputy, or by any other person who is not a party and is not less than 18 years of age, and his return endorsed thereon shall be prima facie proof of service, or the person served may acknowledge service in writing on the subpoena. Service of the subpoena shall be executed upon the witness personally. Except when excused by the court upon a showing of indigence, the party causing the subpoena to issue shall tender to a non-party witness at the time of service the fee for one day’s attendance plus mileage allowed by law. When the subpoena is issued on behalf of the State of Mississippi or an officer or agency thereof, fees and mileage need not be tendered in advance.(2) Proof of service shall be made by filing with the clerk of the court from which the subpoena was issued a statement, certified by the person who made the service, setting forth the date and manner of service, the county in which it was served, the names of the persons served, and the name, address and telephone number of the person making the service.(d) Protection of Persons Subject to Subpoenas.(1) In General.(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, (iii) designates an improper place for examination, or (iv) subjects a person to undue burden or expense.(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 order appearance or production only upon specified conditions.(2) Subpoenas for Production or Inspection.(A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or to permit inspection of premises need not appear in person at the place of production or inspection unless commanded by the subpoena to appear for deposition, hearing or trial. Unless for good cause shown the court shortens the time, a subpoena for production or inspection shall allow not less than ten days for the person upon whom it is served to comply with the subpoena. A copy of all such subpoenas shall be served immediately upon each party in accordance with Rule 5. A subpoena commanding production or inspection will be subject to the provisions of Rule 26(d).(B) The person to whom the subpoena is directed may, within ten days after the service thereof or on or before the time specified in the subpoena for compliance, if such time is less than ten days after service, serve upon the party serving the subpoena written objection to inspection or copying of any or all of the designated materials, or to inspection of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the material 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 at any time upon notice to the person served for an order to compel the production or inspection.(C) The court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (i) quash or modify the subpoena if it is unreasonable or oppressive, or (ii) condition the denial of the motion upon the advance by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.(e) 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.(f) Sanctions. On motion of a party or of the person upon whom a subpoena for the production of books, papers, documents, or tangible things is served and upon a showing that the subpoena power is being exercised in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the party or the person upon whom the subpoena is served, the court in which the action is pending shall order that the subpoena be quashed and may enter such further orders as justice may require to curb abuses of the powers granted under this rule. To this end, the court may impose an appropriate sanction.(g) 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.
Topics: Process Service | No Comments »
Tennessee Foreclosure Process Server Laws
By admin | April 9, 2010
4.01. Summons; Issuance; By Whom Served(1) Upon the filing of the complaint the clerk of the court wherein the complaint is filed shall forthwith issue the required summons and cause it, with necessary copies of the complaint and summons, to be delivered for service to any person authorized to serve process. This person shall serve the summons, and the return indorsed thereon shall be proof of the time and manner of service. A summons may be issued for service in any county against any defendant, and separate or additional summonses may be issued against any defendant upon request of plaintiff. Nothing in this rule shall affect existing laws with respect to venue.(2) A summons and complaint may be served by any person who is not a party and is not less than 18 years of age. The process server must be identified by name and address on the return.§ 4.02. Summons; FormThe summons shall be issued in the name of the State of Tennessee, be dated and signed by the clerk, contain the name of the court and county, the title of the action, and the file number. The summons shall be directed to the defendant, shall state the time within which these rules require the defendant to appear and defend, and shall notify the defendant that in case of his or her failure to do so judgment by default will be rendered against that defendant for the relief demanded in the complaint. The summons shall state the name and address of the plaintiff’s attorney, if any; otherwise, it shall state the plaintiff’s address.§ 4.03. Summons; ReturnThe summons shall be issued in the name of the State of Tennessee, be dated and signed by the clerk, contain the name of the court and county, the title of the action, and the file number. The summons shall be directed to the defendant, shall state the time within which these rules require the defendant to appear and defend, and shall notify the defendant that in case of his or her failure to do so judgment by default will be rendered against that defendant for the relief demanded in the complaint. The summons shall state the name and address of the plaintiff’s attorney, if any; otherwise, it shall state the plaintiff’s address.(1) The person serving the summons shall promptly make proof of service to the court and shall identify the person served and shall describe the manner of service. If a summons is not served within thirty (30) days after its issuance, it shall be returned with the reasons for the failure to serve stated thereon. The plaintiff may obtain new summonses from time to time, as provided in Rule 3, after any prior summons has been returned unserved, or in the event that such prior summons has not been returned within thirty (30) days after its issuance.(2) When process is served by mail, the original summons, endorsed as below; an affidavit of the person making service setting forth the person’s compliance with the requirements of this rule; and, the return receipt shall be sent to and filed by the clerk. The person making service shall endorse over his or her signature on the original summons the date of mailing a certified copy of the summons and a copy of the complaint to the defendant and the date of receipt of return receipt from the defendant. If the return receipt is signed by the defendant, or by person designated by Rule 4.04 or by statute, service on the defendant shall be complete. If not, service by mail may be attempted again or other methods authorized by these rules or by statute may be used.§ 4.04. Service Upon Defendants within the StateThe plaintiff shall furnish the person making the service with such copies of the summons and complaint as are necessary. Service shall be made as follows:(1) Upon an individual other than an unmarried infant or an incompetent person, by delivering a copy of the summons and of the complaint to the individual personally, or if he or she evades or attempts to evade service, 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, whose name shall appear on the proof of service, or by delivering the copies to an agent authorized by appointment or by law to receive service on behalf of the individual served.(2) Upon an unmarried infant or an incompetent person, by delivering a copy of the summons and complaint to the person’s residence guardian or conservator if there is one known to the plaintiff; or if no guardian or conservator is known, by delivering the copies to the individual’s parent having custody within this state; or if no such parent is within this state, then by delivering the copies to the person within this state having control of the individual. If none of the persons defined and enumerated above exist, the court shall appoint a practicing attorney as guardian ad litem to whom the copies shall be delivered. If any of the persons directed by this paragraph to be served is a plaintiff, then the person who is not a plaintiff who stands next in the order named above shall be served. In addition to the service provided in this paragraph, service shall also be made on an unmarried infant who is fourteen (14) years of age or more, and who is not otherwise incompetent.(3) Upon a partnership or unincorporated association (including a limited liability company) which is named defendant under a common name, by delivering a copy of the summons and of the complaint to a partner or managing agent of the partnership or to an officer or managing agent of the association, or to an agent authorized by appointment or by law to receive service on behalf of the partnership or association.(4) Upon a domestic corporation, or a foreign corporation doing business in this state, by delivering a copy of the summons and of the complaint to an officer or managing agent thereof, or to the chief agent in the county wherein the action is brought, or by delivering the copies to any other agent authorized by appointment or by law to receive service on behalf of the corporation.(5) Upon a nonresident individual who transacts business through an office or agency in this state, or a resident individual who transacts business through an office or agency in a county other than the county in which the resident individual resides, in any action growing out of or connected with the business of that office or agency, by delivering a copy of the summons and of the complaint to the person in charge of the office or agency.(6) Upon the state of Tennessee or any agency thereof, by delivering a copy of the summons and of the complaint to the attorney general of the state or to any assistant attorney general.(7) Upon a county, by delivering a copy of the summons and of the complaint to the chief executive officer of the county, or if absent from the county, to the county attorney if there is one designated; if not, by delivering the copies to the county court clerk.(8) Upon a municipality, by delivering a copy of the summons and of the complaint to the chief executive officer thereof, or to the city attorney.(9) Upon any other governmental or any quasi-government entity, by delivering a copy of the summons and of the complaint to any officer or managing agent thereof.(10) Service by mail of a summons and complaint upon a defendant may be made by the plaintiff, the plaintiff’s attorney or by any person authorized by statute. After the complaint is filed, the clerk shall, upon request, furnish the original summons, a certified copy thereof and a copy of the filed complaint to the plaintiff, the plaintiff’s attorney or other authorized person for service by mail. Such person shall send, postage prepaid, a certified copy of the summons and a copy of the complaint by registered return receipt or certified return receipt mail to the defendant. The original summons shall be used for return of service of process pursuant to Rule 4.03 (2). Service by mail shall not be the basis for the entry of a judgment by default unless the record contains a return receipt showing personal acceptance by the defendant or by persons designated by Rule 4.04 or statute. If service by mail is unsuccessful, it may be tried again or other methods authorized by these rules or by statute may be used.§ 4.05. Service Upon Defendant Outside This StateThe plaintiff shall furnish the person making the service with such copies of the summons and complaint as are necessary. Service shall be made as follows:(1) Whenever the law of this state authorizes service outside this state, the service, when reasonably calculated to give actual notice, may be made:(a) by any form of service authorized for service within this state pursuant to Rule 4.04;(b) in any manner prescribed by the law of the state in which service is effected for an action in any of the courts of general jurisdiction in that state;(c) as directed by the court. The provisions of this Rule (4.05) are inapplicable when service is effected in place not within any judicial district of the United States.(2) Service of process pursuant to this Rule (4.05) shall include a copy of the summons and of the complaint.(3) Service by mail upon a corporation shall be addressed to an officer or managing agent thereof, or to the chief agent in the county wherein the action is brought, or by delivering the copies to any other agent authorized by appointment or by law to receive service on behalf of the corporation.(4) Service by mail upon a partnership or unincorporated association (including a limited liability company) that is named defendant under a common name shall be addressed to a partner or managing agent of the partnership or to an officer or managing agent of the association, or to an agent authorized by appointment or by law to receive service on behalf of the partnership or association.(5) When service of summons, process, or notice is provided for or permitted by registered or certified mail, under the laws of Tennessee, and the addressee, or the addressee’s agent, refuses to accept delivery, and it is so stated in the return receipt of the United States Postal Service, the written return receipt, if returned and filed in the action, shall be deemed an actual and valid service of the summons, process, or notice. Service by mail is complete upon mailing. For purposes of this paragraph, the United States Postal Service notation that a properly addressed registered or certified letter is “unclaimed,” or other similar notation, is sufficient evidence of the defendant’s refusal to accept delivery.§ 4.06. Reserved.§ 4.07. 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, corporation, or association that is subject to service 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 of law to receive service of process) of a defendant subject to service;(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 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; 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 fails to comply with a request for waiver made by a plaintiff, 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.(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 together with the costs, including a reasonable attorney’s fee, of any motion required to collect the costs of service.§ 4.08. Constructive Service.In cases where constructive service of process is permissible under the statutes of this state, such service shall be made in the manner prescribed by those statutes, unless otherwise expressly provided in these rules.§ 4.09. 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.Added by order filed February 1, 1995, effective July 1, 1996; by order effective July 1, 1997; and by order effective July 1, 1998.RULE 4A. SERVICE UPON DEFENDANT IN A FOREIGN COUNTRYService upon (1) an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, (2) a corporation, or (3) a partnership or other unincorporated association (including a limited liability company) 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 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) in the case of a corporation, by service as provided in 4.04 (4) upon any corporation that has acted as the corporate defendant’s agent in relation to the matter that is the subject of the litigation or the stock of which is wholly owned by the corporate defendant.(4) by other means not prohibited by international agreement as may be directed by the court.Effective July 1, 1997.RULE 4B. SERVICE UPON SECRETARY OF STATE AS AGENT FOR SERVICE OF APPEALS(1) Whenever the law of this state permits service of any process, notice, or demand, upon a defendant outside the territorial limits of this state, the secretary of state may be served as the agent for that defendant. Service shall be made by delivering to the secretary of state the original and one copy of such process, notice, or demand, duly certified by the clerk of the court in which the suit or action is pending or brought, together with the proper fee. A statement that identifies the grounds for which service on the secretary of state is applicable must be included.(2) The secretary of state shall endorse the time of receipt upon the original and copy and immediately shall promptly send, postage prepaid, the certified copy by registered or certified return receipt mail to the defendant, along with a written notice that service was so made. If the defendant to be served is a corporation, the secretary of state shall send the copy, along with a written notice that service of the original was made, addressed to such corporation at its registered office or principal office as shown in the records on the file in the secretary of state’s office or as shown in the official registry of the state or country in which such corporation is incorporated. If none of the previously mentioned addresses is available to the secretary of state, service may be made on any one (1) of the incorporator’s at the address set forth in the charter. The secretary of state may require the plaintiff or the plaintiff’s attorney to furnish the latter address.(3) In case it shall appear, either before or after the lodging of process as above provided that such nonresident is dead, then either original or alias process may issue hereunder directed to the personal representative of such nonresident deceased and shall be sent as herein provided to the court with probate jurisdiction for the county and state of the residence of the deceased at the time of the nonresident’s death. No appearance need be made nor shall judgment be taken against such personal representative until the lapse of sixty (60) days from the date of mailing the process herein to such probate court. The procedure for mailing such process and proof of service thereof shall be as provided for service upon living persons.(4) The fee paid by plaintiff, when fact of payment is endorsed on the original process by the secretary of state, shall be taxed as plaintiff’s cost, to abide the judgment.(5) Acceptance of such registered or certified mail by any member of the addressee’s family, over the age of sixteen (16) years and residing in the same dwelling with him, shall constitute a sufficient delivery thereof to the addressee.(6) The refusal or failure of a defendant’s agent, to accept delivery of the registered or certified mail provided for in subpart (1), or the refusal or failure to sign the return receipt, shall not affect the validity of such service; and any such defendant refusing or failing to accept delivery of such registered or certified mail shall be charged with knowledge of the contents of any process, notice, or demand contained therein.(7) When the registered or certified mail return is received by the secretary of state or when a defendant refuses or fails to accept delivery of the registered or certified mail and it is returned to the secretary of state, the secretary of state shall forward the receipt or such refused or undelivered mail to the clerk of the court which the suit or action is pending, together with the original process, notice, or demand, a copy of the notice sent to the defendant corporation and the secretary of state’s affidavit setting forth his or her compliance with this Rule. Upon receipt thereof, the clerk shall copy the affidavit on the rule docket of the court and shall mark it, the receipt or refused or undelivered mail, and the copy of notice as of the day received and placed them in the file of the suit or action where the process and pleadings are kept, and such receipt or refused or undelivered mail, affidavit, and copy of notice shall be and become a part of the technical record in the suit or action and thereupon service on the defendant shall be complete.(8) The secretary of state shall keep a record of all processes, notices, and demands served under this Rule, which record shall include the time of such service and the secretary of state’s action with reference thereto.Effective July 1, 1997; and amended by order effective July 1, 1998.RULE 45 SUBPOENA. § 45.01. For Attendance of Witnesses – Form – Issuance.Every subpoena shall be issued by the clerk, 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 at the time and place and for the party therein specified. The clerk shall issue a subpoena or a subpoena for the production of documentary evidence, signed but otherwise in blank, to a party requesting it, who shall fill it in before service.[As amended by order entered January 26, 1999, effective July 1, 1999; amended effective July 1, 2000.]§ 45.02. 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.§ 45.03. Service.A subpoena may be served by any person authorized to serve process, or the witness may acknowledge service in writing on the subpoena. Service of the subpoena shall be made by delivering or offering to deliver a copy thereof to the person to whom it is directed.§ 45.04. Subpoena for Taking Depositions – Place of Deposition.(1) A subpoena for taking depositions may be issued by the clerk of the court in which the action is pending. If the subpoena commands the person to whom it is directed to produce designated books, papers, documents, or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26.02, the subpoena will be subject to the provisions of Rules 30.02, 37.02 and 45.02.(2) A resident of the state may be required to give a deposition only in the county wherein the person resides or is employed or transacts his or her business in person, or at such other convenient place as is fixed by an order of the court.[As amended by order entered January 26, 1999, effective July 1, 1999.]§ 45.05. Subpoena for a Hearing or Trial – Personal Attendance.(1) At the request of any party, subpoenas for attendance at a hearing or trial shall be issued by the clerk of the court in which the action is pending, and such a subpoena may be served at any place within the state.(2) Upon the affidavit of a party or the party’s attorney that the testimony of a witness is important, and that the just and proper effect of the testimony cannot in a reasonable degree be obtained without an oral examination in court, the court may, in its discretion, order the personal attendance of the witness, although such witness may otherwise be exempt from personal attendance.[As amended by order entered January 23, 1986, effective August 1, 1986; and amended by order filed February 1, 1995, effective July 1, 1995.]§ 45.06. Contempt.Disobedience or a refusal to be sworn or to answer as a witness may be punished as a contempt of the court in which the action is pending.§ 45.07. Requirement of Trial, Hearing or Deposition.Every subpoena issued and served under any part of this Rule 45 for testimony, books, papers, documents, or tangible things must command the witness to appear at a trial, hearing, or deposition unless otherwise provided by statute or by agreement of all parties.[As enacted by order entered January 29, 1987, effective August 1, 1987.]TENNESSEE CODE ANNOTATED20-2-103. Date of process shown – Penalty for violation.(a) The clerk, general sessions judge or attorney issuing any process shall mark thereon the day on which the process is issued; and the sheriff or other officer into whose hands the process shall come to be executed, shall, in like manner, mark thereon the day on which the sheriff or other officer received it.(b) The penalty for neglect of this requirement shall be a forfeiture of one hundred twenty-five dollars ($125), to be recovered in any court having cognizance thereof, by any persons who shall sue for the penalty, with costs.[Code 1858, § 2819 (deriv. Acts 1794, ch. 1, § 9); Shan., § 4524; Code 1932, § 8651; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-206.]20-2-104. Issuance of process on Sunday.(a) Civil process may be issued on Sundays on the application of any party, supported by oath or affirmation, that the defendant is removing or about to remove the defendant’s person or property beyond the jurisdiction of the court applied to.(b) The clerk or general sessions judge shall endorse on the back of such process that it was obtained on the oath of the plaintiff, the plaintiff’s agent or attorney, as directed in subsection (a).(c) It is the duty of the proper officers to execute all such process on Sundays, subject to the same penalties and regulations as in other cases.[Code 1858, §§ 2824-2826 (deriv. Acts 1821, ch. 1, §§ 1-3); Shan., §§ 4529-4531; Code 1932, §§ 8656-8658; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 20-207.]20-2-105. Service of process on Sunday on parties leaving jurisdiction. – Sheriffs or constables having process in their hands in civil actions pending in magistrate’s court or courts of record, if it appears to their satisfaction that parties to be sued are leaving the county or state, have the right to execute the process on Sunday.[Acts 1885, ch. 53, § 1; Shan., § 4532; Code 1932, § 8659; T.C.A. (orig. ed.), § 20-208.]20-2-106. Process on Sunday generally prohibited. – With the exceptions contained in §§ 20-2-104 and 20-2-105, civil process shall not be executed on Sunday.[Code 1858, § 2827 (deriv. Acts 1777 (Nov.), ch. 8, § 6); Acts 1885, ch. 53, § 1; Shan., § 4533; Code 1932, § 8660; T.C.A. (orig. ed.), § 20-209.]20-2-107. Process to other counties. – Process in local actions may run to any county.[Code 1858, § 2820; Shan., § 4525; Code 1932, § 8652; T.C.A. (orig. ed.), § 20-210.]20-2-108. Counterpart summons.(a) Where there are two (2) or more defendants in any suit in courts of law or equity or before judges of the courts of general sessions, the plaintiff may cause counterpart summons or subpoena to be issued to any county where any of the defendants is most likely to be found, the fact that the counterpart process is issued in the same suit being noted on each process which, when returned, shall be docketed as if only one (1) process had issued.(b) If the defendants are not served, the same proceedings shall be had as in cases of other similar process not executed.(c) Such counterpart, when issued from a judge of the court of general sessions, shall be returned within thirty (30) days.
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Iowa Foreclosure Process Server Laws
By admin | April 9, 2010
Rule 49. Original notice; form, issuance and service.
A notice informing the defendant, respondent, or other party against whom an action has been filed shall be served in the form and manner provided by this rule. This notice shall be called the original notice.
(a) The original notice, directed to the defendant, respondent, or other party shall contain: (1) the name of the court and the names of the parties; (2) the name, address, telephone number, and if available, the facsimile transmission number of the plaintiff’s or petitioner’s attorney, if any, otherwise the plaintiff’s or petitioner’s address; (3) the date of the filing of the petition; and (4) the time within which these rules or statutes require the defendant, respondent, or other party to serve, and within a reasonable time thereafter file, a motion or answer. The original notice shall also notify the defendant, respondent or other party to be served that in case of the failure to do so by defendant, respondent or other party to be served, judgment by default may be rendered against the defendant, respondent or other party to be served for the relief demanded in the petition. The original notice shall also include the compliance notice required by the Americans with Disabilities Act (ADA). A copy of the petition shall be attached to the original notice except when service is by publication. If service is by publication, the original notice alone shall be published and shall also contain a general statement of the claim or claims, and subject to the limitation in R.C.P. 70(a), the relief demanded.
(b) If the papers are to be served by the sheriff, sufficient copies of the original notice, petition, and other papers to be served together with written directions for service shall be delivered to the clerk.
(c) The original notice shall be signed by the clerk and be under the seal of the court. The clerk may require the party delivering the original notice to the clerk to advance reasonable costs of service.
(d) The clerk shall forthwith deliver the service copies of the original notice, petition and other papers to be served with written directions for service to the sheriff, to a person specially appointed to serve them, or other appropriate person.
(e) Original notices may be served by any person who is neither a party nor the attorney for a party to the action. A party or party’s agent or attorney may take an acknowledgment of service and deliver a copy of the original notice in connection therewith and may mail a copy of the original notice when mailing is required or permitted under any rule or statute.
(f) If service of the original notice is not made upon the defendant, respondent, or other party to be served within 90 days after filing the petition, the court, upon motion or its own initiative after notice to the party filing the petition, shall dismiss the action without prejudice as to that defendant, respondent, or other party to be served or direct an alternate time or manner of service. If the party filing the papers shows good cause for the failure of service, the court shall extend the time for service for an appropriate period. [Court Order October 31, 1997, effective January 24, 1998]
Rule 56.1. Personal service.
Original notices are “served” by delivering a copy to the proper person. Personal service may be made as follows:
(a) Upon any individual who has attained majority who has not been adjudged incompetent either by taking the individual’s signed, dated acknowledgment of service endorsed on the notice; or by serving the individual personally; or by serving, at the individual’s dwelling house or usual place of abode, any person residing therein who is at least 18 years old, but if such place is a rooming house, hotel, club or apartment building, the copy shall there be delivered to such a person who is either a member of the individual’s family or the manager, clerk, proprietor or custodian of such place; or upon the individual’s spouse at a place other than the individual’s dwelling house or usual place of abode if probable cause exists to believe that the spouse lives at the individual’s dwelling house or usual place of abode.
(b) Upon a minor by serving the minor’s conservator or guardian, unless the notice is served on behalf of such conservator or guardian, or the minor’s parent, or some person aged 18 years or more who has the minor’s care and custody, or with whom the minor resides, or in whose service the minor is employed. Where the notice is served on behalf of one who is the conservator or guardian and the conservator or guardian is the only person who would be available upon whom service could be made, the court shall appoint, without prior notice to the ward, a guardian ad litem who shall be served and defend for the minor.
(c) Any person confined in a county care facility, or in any state hospital for the mentally ill, or any patient in the State University of Iowa hospital or its psychopathic ward, or any patient or inmate of any institution in the control of a director of a division of the department of human services or department of corrections or of the United States, may be served by the official in charge of such institution or that person’s assistant. Proof of such service may be made by the certificate of such official, if the institution is in Iowa, or that person’s affidavit if it is out of Iowa.
(e) Any person confined in a county care facility, or in any state hospital for the mentally ill, or any patient in the State University of Iowa hospital or its psychopathic ward, or any patient or inmate of any institution in the control of a director of a division of the department of human services or department of corrections or of the United States, may be served by the official in charge of such institution or that person’s assistant. Proof of such service may be made by the certificate of such official, if the institution is in Iowa, or that person’s affidavit if it is out of Iowa.
(f) Upon a partnership, or an association suable under a common name, or a corporation, by serving any present or acting or last known officer thereof, or any general or managing agent, or any agent or person now authorized by appointment or by law to receive service of original notice, or on the general partner of a partnership.
(g) If the action, whether against an individual, corporation, partnership or other association suable under a common name, arises out of or is connected with the business of any office or agency maintained by the defendant in a county other than where the principal resides, by serving any agent or clerk employed in such office or agency.
(h) Upon any city by serving its mayor or clerk.
(i) Upon any county by serving its auditor or the chair of its board of supervisors.
(j) Upon any school district, school township or school corporation by serving its president or secretary.
(k) Upon the state, where made a party pursuant to statutory consent or authorization for suit in the manner provided by any applicable statute.
(l) Upon any individual, corporation, partnership or association suable under a common name, either as provided in these rules, as provided by any consent to service or in accordance with any applicable statute.
(m) Upon a governmental board, commission or agency, by serving its presiding officer, clerk or secretary.
(n) If service cannot be made by any of the methods provided by this rule, any defendant may be served as provided by court order, consistent with due process of law. [Report 1943; amendment 1945; amended by 58GA, ch152, §201; amended by 62GA, ch 209, §443; amendment 1974; amendment 1975; 1986 Iowa Acts, H.F. 721, §1; Court Order October 31, 1997, effective January 24, 1998] Referred to in R.C.P. 56.2, 59, 64, 106, 233; Ct. R. 123.5; §321.16, 331.307(4), 447.9, 555B.4, 600.11, 600A.6, 626.78, 631.4 Upon a governmental board, commission or agency, by serving its presiding officer, clerk or secretary.
Rule 56.2. Alternate method of service.
A notice informing the defendant, respondent, or other party against whom an action has been filed shall be served in the form and manner provided by this rule. This notice shall be called the original notice.
Every corporation, individual, personal representative, partnership or association that shall have the necessary minimum contact with the state of Iowa shall be subject to the jurisdiction of the courts of this state, and the courts of this state shall hold such corporation, individual, personal representative, partnership or association amenable to suit in Iowa in every case not contrary to the provisions of the Constitution of the United States.
Service may be made on any such corporation, individual, personal representative, partnership or association: (a) as provided in R.C.P. 56.1 within or without the state; or (b) if such service cannot be so made, in any manner consistent with due process of law prescribed by order of the court in which the action is brought.
Nothing herein shall limit or affect the right to serve an original notice upon any corporation, individual, personal representative, partnership or association within or without this state in any manner now or hereafter permitted by statute or rule.[Adopted effective July 1, 1975]Referred to in R.C.P. 53; §631.4
Rule 57. Service on Sunday.
Stricken by Report of November 20, 1991, effective July 1, 1992.
Rule 59. Returns of service.
(a) Signature; fees. Iowa officers may make unsworn returns of original notices served by them, as follows: Any sheriff or deputy sheriff, as to service in their own or a contiguous county; any other peace officer, bailiff, or marshal, as to service in their own territorial jurisdiction. The court shall take judicial notice of such signatures. All other returns, except those specified in R.C.P. 56.1(d) and 56.1(e), shall be proved by the affidavit of the person making the service. If served in the state of Iowa by a person other than such peace officer acting within the territories above defined or in another state by a person other than a sheriff or other peace officer, reasonable fees or mileage, not to exceed those allowed to a sheriff under Iowa Code section 331.655, shall be taxed as costs.
(b) Contents. A return of personal service shall state the time, manner, and place thereof and name the person to whom copy was delivered; and if delivered under R.C.P. 56.1(a) to a person other than defendant, respondent, or other party, it must also state the facts showing compliance with said rule.
(c) Endorsement and filing. If a sheriff receives the notice for service, the sheriff shall note thereon the date when received, and serve it without delay in the sheriff’s own or a contiguous county, and upon receiving the appropriate fees, the sheriff shall either file it and the return with the clerk, or deliver it by mail or otherwise to the person from whom the sheriff received it.
(d) Proof of service. 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 the process. Failure to make proof of service does not affect the validity of the service.
(e) Rule 59.1. Amendment of process or proof of service.The court may allow any process or proof of service thereof to be amended at any time in its discretion and upon such terms as it deems just, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued. [Report 1975; Court Order October 31, 1997, effective January 24, 1998] Referred to in R.H.M.I. 9; R.C.S.A. 9A notice informing the defendant, respondent, or other party against whom an action has been filed shall be served in the form and manner provided by this rule. This notice shall be called the original notice.
Rule 64. Actual service.
Service of original notice in or out of Iowa according to R.C.P. 56.1 supersedes the need of its publication. [Report 1943]A notice informing the defendant, respondent, or other party against whom an action has been filed shall be served in the form and manner provided by this rule. This notice shall be called the original notice.
Rule 365. Specific provisions
(a) Form; Issuance. Every subpoena shall
(1) state the name of the court from which it is issued and the title of the action, including its docket number;
(2) 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 therein specified. A command to produce evidence or to permit inspection may be joined with a command to appear at trial, hearing or deposition, or may be issued separately;
(3) be issued by the clerk of court as provided by these Rules of Civil Procedure or by statute;
(4) set forth the text of subdivisions (b), (c) and (d) of this rule.
(b) 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 reasonable attorney’s fees.
(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 (c)(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
(i) fails to allow reasonable time for compliance;
(ii) requires a person who is not a party or an officer of a party to travel to a place outside of the county in which that person resides, is employed or regularly transacts business in person, except that, such a person may be ordered to attend trial anywhere within the state in which the person is served with a subpoena;
(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, 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.
(c) 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 the 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, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.
(d) 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 attend or produce at a place not within the limits provided by clause (ii) of subparagraph (b)(3)(A).
(e) Service. Subpoenas shall be served as prescribed in these rules or by statute.
(f) Notice. Prior notice of any commanded production of documents and things or inspection of premises shall be served on each party in the manner prescribed by R.C.P. 106 (b) and in a manner reasonably calculated to give all parties an opportunity to object before the commanded production or inspection is to occur.
(g) Limits. An attorney may cause a subpoena to be issued only in a pending proceeding governed by these Rules of Civil Procedure and in which the attorney has appeared.[Adopted effective Jan. 24, 1998.]
Topics: Process Service | No Comments »
Oregon Foreclosure Process Server Laws
By admin | April 9, 2010
RULE 7. SUMMONSA. Definitions. For purposes of this rule, “plaintiff” shall include any party issuing summons and “defendant” shall include any party upon whom service of summons is sought. For purposes of this rule, a “true copy” of a summons and complaint means an exact and complete copy of the original summons and complaint with a certificate upon the copy signed by an attorney of record, or if there is no attorney, by a party, which indicates that the copy is exact and complete.B. Issuance. Any time after the action is commenced. plaintiff or plaintiff’s attorney may issue as many original summonses as either may elect and deliver such summonses to a person authorized to serve summons under section E of this rule. A summons is issued when subscribed by plaintiff or an active member of the Oregon State Bar.C. Contents; Time for Response; Notice to Party Served.C(1) Contents. The summons shall contain:C(1)(a) Title. The title of the cause, specifying the name of the court in which the complaint is filed and the names of the parties to the action.C(1)(b) Direction to Defendant. A direction to the defendant requiring defendant to appear and defend within the time required by subsection (2) of this section and a notification to defendant that in case of failure to do so, the plaintiff will apply to the court for the relief demanded in the complaint.C(1)(c) Subscription; Post Office Address. A subscription by the plaintiff or by an active member of the Oregon State Bar, with the addition of the post office address at which papers in the action may be served by mail.C(2) Time for Response. If the summons is served by any manner other than publication, the defendant shall appear and defend within 30 days from the date of service. If the summons is served by publication pursuant to subsection D(6) of this rule, the defendant shall appear and defend within 30 days from the date stated in the summons. The date so stated in the summons shall be the date of the first publication.C(3) Notice to Party Served.C(3)(a) In General All summonses, other than a summons referred to in paragraph (b) or (c) of this subsection, shall contain a notice printed in type size equal to at least 8-point type which may be substantially in the following form:NOTICE TO DEFENDANT:READ THESE PAPERS CAREFULLY!You must “appear” in this case or the other side will win automatically. To “appear” you must file with the court a legal paper called a “motion” or “answer.” The “motion” or “answer” must be given to the court clerk or administrator within 30 days along with the required filing fee. It must be in proper form and have proof of service on the plaintiff’s attorney or, if the plaintiff does not have an attorney, proof of service on the plaintiff.If you have questions, you should see an attorney immediately. If you need help in finding an attorney, you may call the Oregon State Bar’s Lawyer Referral Service at (503) 684-3763 or toll-free in Oregon at (800) 452-7636.C(3)(b) Service for Counterclaim. A summons to join a party to respond to a counterclaim pursuant to Rule 22 D(1) shall contain a notice printed in type size equal to at least 8-point type which may be substantially in the following form:NOTICE TO DEFENDANT:READ THESE PAPERS CAREFULLY!You must “appear” to protect your rights in this matter. To “appear” you must file with the court a legal paper called a “motion” or “reply.” The “motion” or “reply” must be given to the court clerk or administrator within 30 days along with the required filing fee. It must be in proper form and have proof of service on the defendant’s attorney or, if the defendant does not have an attorney, proof of service on the defendant.If you have questions, you should see an attorney immediately. If you need help in finding an attorney, you may call the Oregon State Bar’s Lawyer Referral Service at (503) 684-3763 or toll-free in Oregon at (800) 452-7636.C(3)(c) Service on Persons Liable for Attorney Fees. A summons to join a party pursuant to Rule 22 D(2) shall contain a notice printed in type size equal to at least 8-point type which may be substantially in the following form:NOTICE TO DEFENDANT:READ THESE PAPERS CAREFULLY!You must “appear” to protect your rights in this matter. To “appear” you must file with the court a legal paper called a “motion” or “reply.” The “motion” or “reply” must be given to the court clerk or administrator within 30 days along with the required filing fee. It must be in proper form and have proof of service on the defendant’s attorney or, if the defendant does not have an attorney, proof of service on the defendant.If you have questions, you should see an attorney immediately. If you need help in finding an attorney, you may call the Oregon State Bar’s Lawyer Referral Service at (503) 684-3763 or toll-free in Oregon at (800) 452-7636.D. Manner of service.D(1) Notice required. Summons shall be served, either within or without this state, in any manner reasonably calculated, under all the circumstances, to apprise the defendant of the existence and pendency of the action and to afford a reasonable opportunity to appear and defend. Summons may be served in a manner specified in this rule or by any other rule or statute on the defendant or upon an agent authorized by appointment or law to accept service of summons for the defendant. Service may be made, subject to the restrictions and requirements of this rule, by the following methods: personal service of summons upon defendant or an agent of defendant authorized to receive process; substituted service by leaving a copy of summons and complaint at a person’s dwelling house or usual place of abode; office service by leaving with a person who is apparently in charge of an office; service by mail; or, service by publication.D(2) Service methods.D(2)(a) Personal service. Personal service may be made by delivery of a true copy of the summons and a true copy of the complaint to the person to be served.D(2)(b) Substituted service. Substituted service may be made by delivering a true copy of the summons and the complaint at the dwelling house or usual place of abode of the person to be served, to any person 14 years of age or older residing in the dwelling house or usual place of abode of the person to be served. Where substituted service is used, the plaintiff, as soon as reasonably possible, shall cause to be mailed, by first class mail, a true copy of the summons and the complaint to the defendant at defendant’s dwelling house or usual place of abode, together with a statement of the date, time, and place at which substituted service was made. For the purpose of computing any period of time prescribed or allowed by these rules or by statute, substituted service shall be complete upon such mailing.D(2)(c) Office service. If the person to be served maintains an office for the conduct of business, office service may be made by leaving a true copy of the summons and the complaint at such office during normal working hours with the person who is apparently in charge. Where office service is used, the plaintiff, as soon as reasonably possible, shall cause to be mailed, by first class mail, a true copy of the summons and the complaint to the defendant at the defendant’s dwelling house or usual place of abode or defendant’s place of business or such other place under the circumstances that is most reasonably calculated to apprise the defendant of the existence and pendency of the action, together with a statement of the date, time, and place at which office service was made. For the purpose of computing any period of time prescribed or allowed by these rules or by statute, office service shall be complete upon such mailing.D(2)(d) Service by Mail.D(2)(d)(i) Generally. When required or allowed by this rule or by statute, except as otherwise permitted, service by mail shall be made by mailing a true copy of the summons and the complaint to the defendant by first class mail and by any of the following: certified or registered mail, return receipt requested, or express mail. For purposes of this section, “first class mail” does not include certified or registered, or any other form of mail which may delay or hinder actual delivery of mail to the addressee.D(2)(d)(ii) Calculation of time. For the purpose of computing any period of time provided by these rules or by statute, service by mail, except as otherwise provided, shall be complete on the day the defendant signs a receipt for the mailing, or three days after the mailing if mailed to an address within the state, or seven days after the mailing if mailed to an address outside of the state, whichever first occurs.D(3) Particular defendants. Service may be made upon specified defendants as follows:D(3)(a) Individuals.D(3)(a)(i) Generally. Upon an individual defendant, by personal service upon such defendant or an agent authorized by appointment or law to receive service of summons or, if defendant personally cannot be found at defendant’s dwelling house or usual place of abode, then by substituted service or by office service upon such defendant or agent. Service may also be made upon an individual defendant to whom neither subparagraph (ii) nor (iii) of this paragraph applies by mailing made in accordance with paragraph (2)(d) of this section provided the defendant signs a receipt for the certified, registered or express mailing, in which case service shall be complete on the date on which the defendant signs a receipt for the mailing.D(3)(a)(ii) Minors. Upon a minor under the age of 14 years, by service in the manner specified in subparagraph (i) of this paragraph upon such minor, and also upon such minor’s father, mother, conservator of the minor’s estate, or guardian, or, if there be none, then upon any person having the care or control of the minor or with whom such minor resides, or in whose service such minor is employed, or upon a guardian ad litem appointed pursuant to Rule 27 A(2).D(3)(a)(iii) Incapacitated persons. Upon a person who is incapacitated or financially incapable, as defined by ORS 125.005, by service in the manner specified in subparagraph (i) of this paragraph upon such person, and also upon the conservator of such person’s estate or guardian, or, if there be none, upon a guardian ad litem appointed pursuant to Rule 27 B(2).D(3)(a)(iv) Tenant of a mail agent. Upon an individual defendant who is a “tenant” of a “mail agent” within the meaning of ORS 646.221 by delivering a true copy of the summons and the complaint to any person apparently in charge of the place where the mail agent receives mail for the tenant, provided that:(A) the plaintiff makes a diligent inquiry but cannot find the defendant; and(B) the plaintiff, as soon as reasonably possible after delivery, causes a true copy of the summons and the complaint to be mailed by first class mail to the defendant at the address at which the mail agent receives mail for the defendant and to any other mailing address of the defendant then known to the plaintiff, together with a statement of the date, time, and place at which the plaintiff delivered the copy of the summons and the complaint. Service shall be complete on the latest date resulting from the application of subparagraph D(2)(d)(ii) of this rule to all mailings required by this subparagraph unless the defendant signs a receipt for the mailing, in which case service is complete on the day the defendant signs the receipt.D(3)(b) Corporations and limited partnerships. Upon a domestic or foreign corporation or limited partnership:D(3)(b)(i) Primary service method. By personal service or office service upon a registered agent, officer, director, general partner, or managing agent of the corporation or limited partnership, or by personal service upon any clerk on duty in the office of a registered agent.D(3)(b)(ii) Alternatives. If a registered agent, officer, director, general partner, or managing agent cannot be found in the county where the action is filed, the summons may be served: by substituted service upon such registered agent, officer, director, general partner, or managing agent; or by personal service on any clerk or agent of the corporation or limited partnership who may be found in the county where the action is filed; or by mailing a copy of the summons and complaint to the office of the registered agent or to the last registered office of the corporation or limited partnership, if any, as shown by the records on file in the office of the Secretary of State or, if the corporation or limited partnership is not authorized to transact business in this state at the time of the transaction, event, or occurrence upon which the action is based occurred, to the principal office or place of business of the corporation or limited partnership, and in any case to any address the use of which the plaintiff knows or, on the basis of reasonable inquiry, has reason to believe is most likely to result in actual notice.D(3)(c) State. Upon the state, by personal service upon the Attorney General or by leaving a copy of the summons and complaint at the Attorney General’s office with a deputy, assistant, or clerk.D(3)(d) Public bodies. Upon any county, incorporated city, school district, or other public corporation, commission, board or agency, by personal service or office service upon an officer, director, managing agent, or attorney thereof.D(3)(e) General partnerships. Upon any general partnerships by personal service upon a partner or any agent authorized by appointment or law to receive service of summons for the partnership.D(3)(f) Other unincorporated association subject to suit under a common name. Upon any other unincorporated association subject to suit under a common name by personal service upon an officer, managing agent, or agent authorized by appointment or law to receive service of summons for the unincorporated association.D(3)(g) Vessel owners and charterers. Upon any foreign steamship owner or steamship charterer by personal service upon a vessel master in such owner’s or charterer’s employment or any agent authorized by such owner or charterer to provide services to a vessel calling at a port in the State of Oregon, or a port in the State of Washington on that portion of the Columbia River forming a common boundary with Oregon.D(4) Particular actions involving motor vehicles.D(4)(a) Actions arising out of use of roads, highways, and streets; service by mail.D(4)(a)(i) In any action arising out of any accident, collision, or other event giving rise to liability in which a motor vehicle may be involved while being operated upon the roads, highways, or streets of this state, if the plaintiff makes at least one attempt to serve the defendant who operated such motor vehicle, or caused it to be operated on the defendant’s behalf, by a method authorized by subsection (3) of this section except service by mail pursuant to subparagraph (3)(a)(i) of this section and, as shown by its return, did not effect service, the plaintiff may then serve that defendant by mailings made in accordance with paragraph (2)(d) of this section addressed to that defendant at: (A) any residence address provided by that defendant at the scene of the accident; (B) the current residence address, if any, of that defendant shown in the driver records of the Department of Transportation; and (C) any other address of that defendant known to the plaintiff at the time of making the mailings required by (A) and (B) that reasonably might result in actual notice to that defendant. Sufficient service pursuant to this subparagraph may be shown if the proof of service includes a true copy of the envelope in which each of the certified, registered or express mailings required by (A), (B) and (C) above was made showing that it was returned to sender as undeliverable or that the defendant did not sign the receipt. For the purpose of computing any period of time prescribed or allowed by these rules or by statute, service under this subparagraph shall be complete on the latest date on which any of the mailings required by (A), (B) and (C) above is made. If the mailing required by (C) is omitted because the plaintiff did not know of any address other than those specified in (A) and (B) above, the proof of service shall so certify.D(4)(a)(ii) Any fee charged by the Department of Transportation for providing address information concerning a party served pursuant to subparagraph (i) of this paragraph may be recovered as provided in Rule 68.D(4)(a)(iii) The requirements for obtaining an order of default against a defendant served pursuant to subparagraph (i) of this paragraph are as provided in Rule 69.D(4)(b) Notification of change of address. Every motorist or user of the roads, highways or streets of this state who, while operating a motor vehicle upon the roads, highways, or streets of this state, is involved in any accident, collision, or other event giving rise to liability, shall forthwith notify the Department of Transportation of any change of such defendant’s address occurring within three years after such accident, collision or event.D(5) Service in foreign country. When service is to be effected upon a party in a foreign country, it is also sufficient if service of summons is made in the manner prescribed by the law of the foreign country for service in that country in its courts of general jurisdiction, or as directed by the foreign authority in response to letters rogatory, or as directed by order of the court. However, in all cases such service shall be reasonably calculated to give actual notice.D(6) Court order for service; service by publication.D(6)(a) Court order for service by other method. On motion upon a showing by affidavit that service cannot be made by any method otherwise specified in these rules or other rule or statute, the court, at its discretion, may order service by any method or combination of methods which under the circumstances is most reasonably calculated to apprise the defendant of the existence and pendency of the action, including but not limited to: publication of summons; mailing without publication to a specified post office address of the defendant by first class mail and by any of the following: certified or registered mail, return receipt requested, or express mail; or posting at specified locations. If service is ordered by any manner other than publication, the court may order a time for response.D(6)(b) Contents of published summons. In addition to the contents of a summons as described in section C of this rule, a published summons shall also contain a summary statement of the object of the complaint and the demand for relief, and the notice required in subsection C(3) shall state: “The ‘motion’ or ‘answer’ (or ‘reply’) must be given to the court clerk or administrator within 30 days of the date of first publication specified herein along with the required filing fee.” The published summons shall also contain the date of the first publication of the summons.D(6)(c) Where published. An order for publication shall direct publication to be made in a newspaper of general circulation in the county where the action is commenced or, if there is no such newspaper, then in a newspaper to be designated as most likely to give notice to the person to be served. Such publication shall be four times in successive calendar weeks. If the plaintiff knows of a specific location other than the county where the action is commenced where publication might reasonably result in actual notice to the defendant, the plaintiff shall so state in the affidavit required by paragraph (a) of this subsection, and the court may order publication in a comparable manner at such location in addition to, or in lieu of, publication in the county where the action is commenced.D(6)(d) Mailing summons and complaint. If the court orders service by publication and the plaintiff knows or with reasonable diligence can ascertain the defendant’s current address, the plaintiff shall mail a copy of the summons and the complaint to the defendant at such address by first class mail and by any of the following: certified or registered mail, return receipt requested, or express mail. If the plaintiff does not know and cannot upon diligent inquiry ascertain the current address of any defendant, a copy of the summons and the complaint shall be mailed by the methods specified above to the defendant at the defendant’s last known address. If the plaintiff does not know, and cannot ascertain upon diligent inquiry, the defendant’s current and last known addresses, mailing of a copy of the summons and the complaint is not required.D(6)(e) Unknown heirs or persons. If service cannot be made by another method described in this section because defendants are unknown heirs or persons as described in sections I and J of Rule 20, the action shall proceed against the unknown heirs or persons in the same manner as against named defendants served by publication and with like effect; and any such unknown heirs or persons who have or claim any right, estate, lien, or interest in the property in controversy, at the time of the commencement of the action, and served by publication, shall be bound and concluded by the judgment in the action, if the same is in favor of the plaintiff, as effectively as if the action was brought against such defendants by name.D(6)(f) Defending before or after judgment. A defendant against whom publication is ordered or such defendant’s representatives, on application and sufficient cause shown, at any time before judgment, shall be allowed to defend the action. A defendant against whom publication is ordered or such defendant’s representatives may, upon good cause shown and upon such terms as may be proper, be allowed to defend after judgment and within one year after entry of judgment. If the defense is successful, and the judgment or any part thereof has been collected or otherwise enforced, restitution may be ordered by the court, but the title to property sold upon execution issued on such judgment, to a purchaser in good faith, shall not be affected thereby.D(6)(g) Defendant who cannot be served. Within the meaning of this subsection, a defendant cannot be served with summons by any method authorized by subsection D(3) of this section if: (i) service pursuant to subparagraph (4)(a)(i) of this section is not authorized, and the plaintiff attempted service of summons by all of the methods authorized by subsection D(3) of this section and was unable to complete service, or (ii) if the plaintiff knew that service by such methods could not be accomplished. E By whom served; compensation. A summons may be served by any competent person 18 years of age or older who is a resident of the state where service is made or of this state and is not a party to the action nor, except as provided in ORS 180.260, an officer, director, or employee of, nor attorney for, any party, corporate or otherwise. However, service pursuant to subparagraph D(2)(d)(i) of this rule may be made by an attorney for any party. Compensation to a sheriff or a sheriff’s deputy in this state who serves a summons shall be prescribed by statute or rule. If any other person serves the summons, a reasonable fee may be paid for service. This compensation shall be part of disbursements and shall be recovered as provided in Rule 68.E. By Whom Served; Compensation. A summons may be served by any competent person 18 years of age or older who is a resident of the state where service is made or of this state and is not a party to the action nor, except as provided in ORS 180.260, an officer, director, or employee of, nor attorney for, any party, corporate or otherwise. However, service pursuant to subparagraph D(2)(d)(i) of this rule may be made by an attorney for any party. Compensation to a sheriff or a sheriff’s deputy in this state who serves a summons shall be prescribed by statute or rule. If any other person serves the summons, a reasonable fee may be paid for service. This compensation shall be part of disbursements and shall be recovered as provided in Rule 68.F. Return; proof of service.F(1) Return of summons. The summons shall be promptly returned to the clerk with whom the complaint is filed with proof of service or mailing, or that defendant cannot be found. The summons may be returned by first class mail.F(2) Proof of service. Proof of service of summons or mailing may be made as follows:F(2)(a) Service other than publication. Service other than publication shall be proved by:F(2)(a)(i) Certificate of service when summons not served by sheriff or deputy. If the summons is not served by a sheriff or a sheriff’s deputy, the certificate of the server indicating: the time, place, and manner of service; that the server is a competent person 18 years of age or older and a resident of the state of service or this state and is not a party to nor an officer, director, or employee of, nor attorney for any party, corporate or otherwise; and that the server knew that the person, firm, or corporation served is the identical one named in the action. If the defendant is not personally served, the server shall state in the certificate when, where, and with whom a copy of the summons and complaint was left or describe in detail the manner and circumstances of service. If the summons and complaint were mailed, the certificate may be made by the person completing the mailing or the attorney for any party and shall state the circumstances of mailing and the return receipt shall be attached.
F(2)(a)(ii) Certificate of service by sheriff or deputy. If the summons is served by a sheriff or a sheriff’s deputy, the sheriff’s or deputy’s certificate of service indicating the time, place, and manner of service, and if defendant is not personally served, when, where, and with whom the copy of the summons and complaint was left or describing in detail the manner and circumstances of service. If the summons and complaint were mailed, the certificate shall state the circumstances of mailing and the return receipt shall be attached. G Disregard of error; actual notice. Failure to comply with provisions of this rule relating to the form of summons, issuance of summons, or who may serve summons shall not affect the validity of service of summons or the existence of jurisdiction over the person if the court determines that the defendant received actual notice of the substance and pendency of the action. The court may allow amendment to a summons, or affidavit or certificate of service of summons. The court shall disregard any error in the content of summons that does not materially prejudice the substantive rights of the party against whom summons was issued. If service is made in any manner complying with subsection D(1) of this section, the court shall also disregard any error in the service of summons that does not violate the due process rights of the party against whom summons was issued.[Amended effective January 1, 1982; January 1, 1984, January 1, 1986; January 1, 1990; January 1, 1992; January 1, 1994; September 9, 1995; January 1, 1996; January 1, 1998, January 1, 2000.]RULE 55. SUBPOENAA. Defined; Form. A subpoena is a writ or order directed to a person and may require the attendance of such person at a particular time and place to testify as a witness on behalf of a particular party therein mentioned or may require such person to produce books, papers, documents, or tangible things and permit inspection thereof at a particular time and place. A subpoena requiring attendance to testify as a witness requires that the witness remain until the testimony is closed unless sooner discharged, but at the end of each day’s attendance a witness may demand of the party, or the party’s attorney, the payment of legal witness fees for the next following day and if not then paid, the witness is not obliged to remain longer in attendance. Every subpoena shall state the name of the court and the title of the action.B. For Production of Books, Papers, Documents, or Tangible Things and to Permit Inspection. A 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 in the possession, custody or control of that person at the time and place specified therein. A command to produce books, papers, documents or tangible things and permit inspection thereof may be joined with a command to appear at trial or hearing or at deposition or, before trial, may be issued separately. A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things but not commanded to also appear for deposition, hearing or trial 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. 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 in whose name the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move for an order at any time to compel production. In any case, where a subpoena commands production of books, papers, documents or tangible things 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. Issuance.C(1) By Whom Issued. A subpoena is issued as follows: (a) to require attendance before a court, or at the trial of an issue therein, or upon the taking of a deposition in an action pending therein or, if separate from a subpoena commanding the attendance of a person, to produce books, papers, documents or tangible things and to permit inspection thereof: (i) it may be issued in blank by the clerk of the court in which the action is pending, or if there is no clerk, then by a judge or justice of such court; or (ii) it may be issued by an attorney of record of the party to the action in whose behalf the witness is required to appear, subscribed by the signature of such attorney; (b) to require attendance before any person authorized to take the testimony of a witness in this state under Rule 38 C, or before any officer empowered by the laws of the United States to take testimony, it may be issued by the clerk of a circuit or district court in the county in which the witness is to be examined; (c) to require attendance out of court in cases not provided for in paragraph (a) of this subsection, before a judge, justice, or other officer authorized to administer oaths or take testimony in any matter under the laws of this state, it may be issued by the judge, justice, or other officer before whom the attendance is required.C(2) By Clerk In Blank. Upon request of a party or attorney, any subpoena issued by a clerk of court shall be issued in blank and delivered to the party or attorney requesting it, who shall fill it in before service.D. Service; service on law enforcement agency; service by mail; proof of service.D(1) Service. Except as provided in subsection (2) of this section, a subpoena may be served by the party or any other person 18 years of age or older. The service shall be made by delivering a copy to the witness personally and giving or offering to the witness at the same time the fees to which the witness is entitled for travel to and from the place designated and, whether or not personal attendance is required, one day’s attendance fees. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. A subpoena for taking of a deposition, served upon an organization as provided in Rule 39 C(6), shall be served in the same manner as provided for service of summons in Rule 7 D(3)(b)(i), D(3)(d), D(3)(e), or D(3)(f). Copies of each subpoena commanding production of books, papers, documents or tangible things and inspection thereof before trial, not accompanied by command to appear at trial or hearing or at deposition, whether the subpoena is served personally or by mail, shall be served on each party at least seven days before the subpoena is served on the person required to produce and permit inspection, unless the court orders a shorter period. In addition, a subpoena shall not require production less than 14 days from the date of service upon the person required to produce and permit inspection, unless the court orders a shorter period.D(2) Service on law enforcement agency.D(2)(a) Every law enforcement agency shall designate individual or individuals upon whom service of subpoena may be made. At least one of the designated individuals shall be available during normal business hours. In the absence of the designated individuals, service of subpoena pursuant to paragraph (b) of this subsection may be made upon the officer in charge of the law enforcement agency.D(2)(b) If a peace officer’s attendance at trial is required as a result of employment as a peace officer, a subpoena may be served on such officer by delivering a copy personally to the officer or to one of the individuals designated by the agency which employs the officer not later than 10 days prior to the date attendance is sought. A subpoena may be served in this manner only if the officer is currently employed as a peace officer and is present within the state at the time of service.D(2)(c) When a subpoena has been served as provided in paragraph (b) of this subsection, the law enforcement agency shall make a good faith effort to give actual notice to the officer whose attendance is sought of the date, time, and location of the court appearance. If the officer cannot be notified, the law enforcement agency shall promptly notify the court and a postponement or continuance may be granted to allow the officer to be personally served.D(2)(d) As used in this subsection, “law enforcement agency” means the Oregon State Police, a county sheriff’s department, or a municipal police department.D(3) Service by mail. Under the following circumstances, service of a subpoena to a witness by mail shall be of the same legal force and effect as personal service otherwise authorized by this section:D(3)(a) The attorney certifies in connection with or upon the return of service that the attorney, or the attorney’s agent, has had personal or telephone contact with the witness, and the witness indicated a willingness to appear at trial if subpoenaed;D(3)(b) The attorney, or the attorney’s agent, made arrangements for payment to the witness of fees and mileage satisfactory to the witness; andD(3)(c) The subpoena was mailed to the witness more than 10 days before trial by certified mail or some other designation of mail that provides a receipt for the mail signed by the recipient, and the attorney received a return receipt signed by the witness more than three days prior to trial.D(4) Service by mail; exception. Service of subpoena by mail may be used for a subpoena commanding production of books, papers, documents, or tangible things, not accompanied by a command to appear at trial or hearing or at deposition.D(5) Proof of service. Proof of service of a subpoena is made in the same manner as proof of service of a summons except that the server need not certify that the server is not a party in the action, an attorney for a party in the action or an officer, director or employee of a party in the action.E. Subpoena for Hearing or Trial; Prisoners. If the witness is confined in a prison or jail in this state, a subpoena may be served on such person only upon leave of court, and attendance of the witness may be compelled only upon such terms as the court prescribes. The court may order temporary removal and production of the prisoner for the purpose of giving testimony or may order that testimony only be taken upon deposition at the place of confinement. The subpoena and court order shall be served upon the custodian of the prisoner.F. Subpoena for Taking Depositions or Requiring Production of Books, Papers, Documents, or Tangible Things; Place of Production and Examination.F(1) Subpoena for Taking Deposition. Proof of service of a notice to take a deposition as provided in Rules 39 C and 40 A, or of notice of subpoena to command production of books, papers, documents, or tangible things before trial as provided in subsection D(1) of this rule or a certificate that such notice will be served if the subpoena can be served, constitutes a sufficient authorization for the issuance by a clerk of court of subpoenas for the persons named or described therein.F(2) Place of Examination. A resident of this state who is not a party to the action may be required by subpoena to attend an examination or to produce books, papers, documents, or tangible things only in the county wherein such person resides, is employed, or transacts business in person, or at such other convenient place as is fixed by an order of court. A nonresident of this state who is not a party to the action may be required by subpoena to attend an examination or to produce books, papers, documents, or tangible things only in the county wherein such person is served with a subpoena, or at such other convenient place as is fixed by an order of court.F(3) Production Without Examination or Deposition. A party who issues a subpoena may command the person to whom it is issued, other than a hospital, to produce books, papers, documents, or tangible things by mail or otherwise, at a time and place specified in the subpoena, without commanding inspection of the originals or a deposition. In such instances the person to whom the subpoena is directed complies if the person produces copies of the specified items in the specified manner and certifies that the copies are true copies of all the items responsive to the subpoena or, if all items are not included, why they are not.G. Disobedience of Subpoena; Refusal to Be Sworn or Answer as a Witness. Disobedience to a subpoena or a refusal to be sworn or answer as a witness may be punished as contempt by a court before whom the action is pending or by the judge or justice issuing the subpoena. Upon hearing or trial, if the witness is a party and disobeys a subpoena or refuses to be sworn or answer as a witness, such party’s complaint, answer, or reply may be stricken.H. Hospital Records.H(1) Hospital. As used in this rule, unless the context requires otherwise, “hospital” means a health care facility defined in ORS 442.015 (14)(a) through (d) and licensed under ORS 441.015 through 441.097 and community health programs established under ORS 430.610 through 430.695.H(2) Mode of Compliance. Hospital records may be obtained by subpoena only as provided in this section. However, if disclosure of any requested records is restricted or otherwise limited by state or federal law, then the protected records shall not be disclosed in response to the subpoena unless the requirements of the pertinent law have been complied with and such compliance is evidenced through an appropriate court order or through execution of an appropriate consent. Absent such consent or court order, production of the requested records not so protected shall be considered production of the records responsive to the subpoena. If an appropriate consent or court order does accompany the subpoena, then production of all records requested shall be considered production of the records responsive to the subpoena.H(2)(a) Except as provided in subsection (4) of this section, when a subpoena is served upon a custodian of hospital records in an action in which the hospital is not a party, and the subpoena requires the production of all or part of the records of the hospital relating to the care or treatment of a patient at the hospital, it is sufficient compliance therewith if a custodian delivers by mail or otherwise a true and correct copy of all the records responsive to the subpoena within five days after receipt thereof. Delivery shall be accompanied by the affidavit described in subsection (3) of this section. The copy may be photographic or microphotographic reproduction.H(2)(b) 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 of the witness, and date of the subpoena are clearly inscribed. The sealed envelope or wrapper shall be enclosed in an outer envelope or wrapper and sealed. The outer envelope or wrapper shall be addressed as follows: (i) if the subpoena directs attendance in court, to the clerk of the court, or to the judge thereof if there is no clerk; (ii) if the subpoena directs attendance at a deposition or other hearing, to the officer administering the oath for the deposition, at the place designated in the subpoena for the taking of the deposition or at the officer’s place of business; (iii) in other cases involving a hearing, to the officer or body conducting the hearing at the official place of business; (iv) if no hearing is scheduled, to the attorney or party issuing the subpoena. If the subpoena directs delivery of the records in accordance with subparagraph H(2)(b)(iv), then a copy of the subpoena shall be served on the person whose records are sought and on all other parties to the litigation, not less than 14 days prior to service of the subpoena on the hospital.H(2)(c) After filing and after giving reasonable notice in writing to all parties who have appeared of the time and place of inspection, the copy of the records may be inspected by any party or the attorney of record of a party in the presence of the custodian of the court files, but otherwise shall remain sealed and shall be opened only at the time of trial, deposition, or other hearing, at the direction of the judge, officer, or body conducting the proceeding. The records shall be opened in the presence of all parties who have appeared in person or by counsel at the trial, deposition, or hearing. Records which are not introduced in evidence or required as part of the record shall be returned to the custodian of hospital records who submitted them.H(2)(d) For purposes of this section, the subpoena duces tecum to the custodian of the records may be served by first class mail. Service of subpoena by mail under this section shall not be subject to the requirements of subsection (3) of section D of this rule.H(3) Affidavit of Custodian of Records.H(3)(a) The records described in subsection (2) of this section shall be accompanied by the affidavit of a custodian of the hospital records, stating in substance each of the following: (i) that the affiant is a duly authorized custodian of the records and has authority to certify records; (ii) that the copy is a true copy of all the records responsive to the subpoena; (iii) that the records were prepared by the personnel of the hospital, staff physicians, or persons acting under the control of either, in the ordinary course of hospital business, at or near the time of the act, condition, or event described or referred to therein.H(3)(b) If the hospital 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.H(3)(c) When more than one person has knowledge of the facts required to be stated in the affidavit, more than one affidavit may be made.H(4) Personal Attendance of Custodian of Records May Be Required.H(4)(a) The personal attendance of a custodian of hospital records and the production of original hospital records is required if the subpoena duces tecum contains the following statement: The personal attendance of a custodian of hospital records and the production of original records is required by this subpoena. The procedure authorized pursuant to Oregon Rule of Civil Procedure 55 H(2) shall not be deemed sufficient compliance with this subpoena.H(4)(b) If more than one subpoena duces tecum is served on a custodian of hospital records and personal attendance is required under each pursuant to paragraph (a) of this subsection, the custodian shall be deemed to be the witness of the party serving the first such subpoena.H(5) Tender and Payment of Fees. Nothing in this section requires the tender or payment of more than one witness and mileage fee or other charge unless there has been agreement to the contrary.I. Medical Records.I(1) Service on Patient or Health Care Recipient Required. Except as provided in subsection (3) of this section, a subpoena duces tecum for medical records served on a custodian or other keeper of medical records is not valid unless proof of service of a copy of the subpoena on the patient or health care recipient, or upon the attorney for the patient or health care recipient, made in the same manner as proof of service of a summons, is attached to the subpoena served on the custodian or other keeper of medical records.I(2) Manner of Service. If a patient or health care recipient is represented by an attorney, a true copy of a subpoena duces tecum for medical records of a patient or health care recipient must be served on the attorney for the patient or health care recipient not less than 14 days before the subpoena is served on a custodian or other keeper of medical records. Upon a showing of good cause, the court may shorten or lengthen the 14-day period. Service on the attorney for a patient or health care recipient under this section may be made in the manner provided by Rule 9B. If the patient or health care recipient is not represented by an attorney, service of a true copy of the subpoena must be made on the patient or health care recipient not less than 14 days before the subpoena is served on the custodian or other keeper of medical records. Upon a showing of good cause, the court may shorten or lengthen the 14-day period. Service on a patient or health care recipient under this section must be made in the manner specified by Rule 7D(3)(a) for service on individuals.I(3) Affidavit of Attorney. If a true copy of a subpoena duces tecum for medical records of a patient or health care recipient cannot be served on the patient or health care recipient in the manner required by subsection (2) of this section, and the patient or health care recipient is not represented by counsel, a subpoena duces tecum for medical records served on a custodian or other keeper of medical records is valid if the attorney for the person serving the subpoena attaches to the subpoena the affidavit of the attorney attesting to the following: (a) That reasonable efforts were made to serve the copy of the subpoena on the patient or health care recipient, but that the patient or health care recipient could not be served; (b) That the party subpoenaing the records is unaware of any attorney who is representing the patient or health care recipient; and (c) That to the best knowledge of the party subpoenaing the records, the patient or health care recipient does not know that the records are being subpoenaed.I(4) Application. The requirements of this section apply only to subpoenas duces tecum for patient care and health care records kept by a licensed, registered or certified health practitioner as described in ORS 18.550, a health care service contractor as defined in ORS 750.005, a home health agency licensed under ORS chapter 443 or a hospice program licensed, certified or accredited under ORS chapter 443.[Amended effective January 1, 1982; January 1, 1984; January 1, 1988; October 3, 1989; January 1, 1990; January 1, 1992; November 4, 1993; September 9, 1995; January 1, 1996; October 4, 1997; January 1, 1998; October 23, 1999; January 1, 2000.]
Topics: Process Service | No Comments »
Connecticut Foreclosure Process Server Laws
By admin | April 9, 2010
Sec. 52-54. Service of summons. The service of a writ of summons shall be made by the officer reading it and the complaint accompanying it in the hearing of the defendant or by leaving an attested copy thereof with him or at his usual place of abode. When service is made by leaving an attested copy at the defendant’s usual place of abode, the officer making service shall note in his return the address at which such attested copy was left.Sec. 52-57. Manner of service upon individuals, municipalities, corporations, partnerships and voluntary associations.(a) Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.(b) Process in civil actions against the following-described classes of defendants shall be served as follows:(1) Against a town, upon its clerk, assistant clerk, manager or one of its selectmen;(2) against a city, upon its clerk or assistant clerk or upon its mayor or manager;(3) against a borough, upon its manager, clerk or assistant clerk or upon the warden or one of its burgesses;(4) against a school district, upon its clerk or one of its committee; and(5) against other municipal or quasi-municipal corporations, upon its clerk or upon its chief presiding officer or managing agent.(c) In actions against a private corporation, service of process shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant cashier, the teller or the assistant teller or its general or managing agent or manager or upon any director resident in this state, or the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located. In actions against a private corporation established under the laws of any other state, any foreign country or the United States, service of process may be made upon any of the aforesaid officers or agents, or upon the agent of the corporation appointed pursuant to section 33-922.(d) In actions against a partnership, service of process may be made by personally serving any process within the state upon any one of the partners or, if none of the partners are residents of the state, service may be made upon the Secretary of the State; provided, prior to the return date, the officer serving the writ shall mail a copy of the writ and the complaint by registered or certified mail, return receipt requested, to the last-known address of every partner named in the writ not personally served. A statement of such mailing and receipt therefor shall be included in the officer’s return.(e) In actions against a voluntary association, service of process may be made upon the presiding officer, secretary or treasurer. If all of such officers are not residents of the state and the voluntary association is doing business, acting or carrying out its operations or its functions within the state, the voluntary association shall be deemed to have appointed the Secretary of the State as its attorney and to have agreed that any process in any civil action brought against it may be served upon the secretary of the state and that the process shall have the same validity as if served personally upon the presiding officer, secretary or treasurer of the voluntary association. The process shall be served by any officer to whom the process is directed upon the Secretary of the State by leaving with, or at the office of, the secretary of the state, at least twelve days before the return day of the process, a true and attested copy thereof, and by sending to the defendant at its last-known address by registered or certified mail, postage prepaid, a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State. The officer serving the process upon the secretary of the state shall leave with the Secretary of the State, at the time of service, a fee of twenty-five dollars, which fee shall be taxed in favor of the plaintiff in his costs if he prevails in the action. The Secretary of the State shall keep a record of each such process and the day and hour of service.(f) When the other methods of service of process provided under this section or otherwise provided by law cannot be effected, in actions concerning the establishment, enforcement or modification of child support orders other than actions for dissolution of marriage, including, but not limited to, such actions under sections 17b-19, 17b-63 to 17b-65, inclusive, 17b-115 to 17b-138, inclusive, 17b-220 to 17b-250, inclusive, 17b-256, 17b-259, 17b-263, 17b-287, 17b-340 to 17b-350, inclusive, 17b-689 to 17b-693, inclusive, and 17b-743 to 17b-747, inclusive, and chapters 815, 815o, 815t, 815y and 816, and actions to implement garnishments for support under section 52-362, service of process may be made upon a party to the action by one of the following methods, provided proof of receipt of such process by such party is presented to the court in accordance with rules promulgated by the judges of the Superior Court:(1) By certified mail to a party to the action addressed to the employer of such party. Any service of process so sent shall include on the outside envelope the words “To be delivered to the employee in accordance with subsection (f) of section 52-57”. The employer shall accept any such service of process sent by certified mail and promptly deliver such certified mail to the employee; or(2) When a party to an action under this subsection is employed by an employer with fifteen or more employees, by personal service upon an official of the employer designated as an agent to accept service of process in actions brought under this subsection. Every employer with fifteen or more employees doing business in this state shall designate an official to accept service of process for employees who are parties to such actions. The person so served shall promptly deliver such process to the employee.Sec. 52-57a. Service of process without state upon persons domiciled or subject to jurisdiction of courts in state. A person domiciled in or subject to the jurisdiction of the courts of this state or his executor or administrator, may be served with process without the state, in the same manner as service is made within the state, by any person authorized to make service by the laws of the state, territory, possession or country in which service is to be made or by any duly qualified attorney, solicitor, barrister or equivalent in such jurisdiction.Sec. 52-59b. Jurisdiction of courts over nonresidents and foreign partnerships. Service of process.(a) As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual, or foreign partnership, or his or its executor or administrator, who in person or through an agent:(1) Transacts any business within the state; or(2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or(3) commits a tortious act outside the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he(A) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or(B) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or(4) owns, uses or possesses any real property situated within the state.(b) Where personal jurisdiction is based solely upon this section, an appearance does not confer personal jurisdiction with respect to causes of action not arising from an act enumerated in this section.(c) Any nonresident individual, or foreign partnership, or his or its executor or administrator, over whom a court may exercise personal jurisdiction, as provided in subsection (a), shall be deemed to have appointed the Secretary of the State as its attorney and to have agreed that any process in any civil action brought against the nonresident individual or foreign partnership, or his or its executor or administrator, may be served upon the Secretary of the State and shall have the same validity as if served upon the nonresident individual or foreign partnership personally. The process shall be served by the officer to whom the same is directed upon the secretary by leaving with or at the office of the secretary, at least twelve days before the return day of such process, a true and attested copy thereof, and by sending to the defendant at his last-known address, by registered or certified mail, postage prepaid, a like true and attested copy with an endorsement thereon of the service upon the secretary. The officer serving such process upon the secretary shall leave with the secretary, at the time of service, a fee of twenty-five dollars, which fee shall be taxed in favor of the plaintiff in his costs if he prevails in any such action. The Secretary of the State shall keep a record of each such process and the day and hour of service.Sec. 52-59c. Service upon nonresident attaching creditor. In any action brought to foreclose a mortgage or judgment, tax or mechanic’s lien, the attorney of record for any nonresident attaching creditor, nonresident judgment lienor or nonresident mortgagee who has commenced a foreclosure action on such mortgage shall be the agent for service of process upon the creditor in the foreclosure and further service shall not be required. Service of process shall be made by the officer to whom the process is directed upon the attorney by leaving with or at the office of the attorney, at least twelve days before the return day of the process, a true and attested copy thereof, and by sending to the defendant at his last-known address, by registered or certified mail, postage prepaid, a like true and attested copy, with an endorsement thereon of the service upon the attorney.Sec. 52-59d. Service of process outside country to be in accordance with treaty or convention or court order. Service of process outside country to be in accordance with treaty or convention or court order.(a) Notwithstanding any provision of the general statutes relating to service of process, civil process shall not be served outside of the United States of America in violation of any applicable treaty or convention, including without limitation, the Hague Convention on Service of Process Abroad.(b) If service of process cannot be made under the applicable treaty or convention within sixty days, the Superior Court may, upon application, order service of process upon such terms as the court deems reasonably calculated to give the defendant actual notice of the proceedings in sufficient time to enable the defendant to defend
Topics: Process Service | No Comments »
Massachusetts Foreclosure Process Server Laws
By admin | April 9, 2010
Rule 4. Process(a) Summons: Issuance. Upon commencing the action the plaintiff or his attorney shall deliver a copy of the complaint and a summons for service to the sheriff, deputy sheriff, or special sheriff; any other person duly authorized by law; a person specifically appointed to serve them; or as otherwise provided in subdivision (c) of this rule. Upon request of the plaintiff separate or additional summons shall issue against any defendant. The summons may be procured in blank from the clerk, and shall be filled in by the plaintiff or the plaintiff’s attorney in accordance with Rule 4 (b).(b) Same: Form. The summons shall bear the signature or facsimile signature of the clerk; be under the seal of the court; be in the name of the Commonwealth of Massachusetts; bear teste of the first justice of the court to which it shall be returnable who is not a party; 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 him that in case of his failure to do so judgment by default may be rendered against him for the relief demanded in the complaint.(c) By Whom Served. Except as otherwise permitted by paragraph (h) of this rule, service of all process shall be made by a sheriff, by his deputy, or by a special sheriff; by any other person duly authorized by law; by some person specially appointed by the court for that purpose; or in the case of service of process outside the Commonwealth, by an individual permitted to make service of process under the law of this Commonwealth or under the law of the place in which the service is to be made, or who is designated by a court of this Commonwealth. A subpoena may be served as provided in Rule 45. Notwithstanding the provisions of this paragraph (c), wherever in these rules service is permitted to be made by certified or registered mail, the mailing may be accomplished by the party or his attorney.(d) Summons: Personal Service Within the Commonwealth. The summons and a copy of the 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 by delivering a copy of the summons and of the complaint to him personally; or by leaving copies thereof at his last and usual place of abode; or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by statute to receive service of process, provided that any further notice required by such statute be given. If the person authorized to serve process makes return that after diligent search he can find neither the defendant, nor defendant’s last and usual abode, nor any agent upon whom service may be made in compliance with this subsection, the court may on application of the plaintiff issue an order of notice in the manner and form prescribed by law.(2) Upon a domestic corporation (public or private), a foreign corporation subject to suit within the Commonwealth, or an unincorporated association subject to suit within the Commonwealth under a common name: by delivering a copy of the summons and of the complaint to an officer, to a managing or general agent, or to the person in charge of the business at the principal place of business thereof within the Commonwealth, if any; or by delivering such copies to any other agent authorized by appointment or by law to receive service of process, provided that any further notice required by law be given. If the person authorized to serve process makes return that after diligent search he can find no person upon whom service can be made, the court may on application of the plaintiff issue an order of notice in the manner and form prescribed by law.(3) Upon the Commonwealth or any agency thereof by delivering a copy of the summons and of the complaint to the Boston office of the Attorney General of the Commonwealth, and, in the case of any agency, to its office or to its chairman or one of its members or its secretary or clerk. Service hereunder may be effected by mailing such copies to the Attorney General and to the agency by certified or registered mail.(4) Upon a county, city, town or other political subdivision of the Commonwealth subject to suit, by delivering a copy of the summons and of the complaint to the treasurer or the clerk thereof; or by leaving such copies at the office of the treasurer or the clerk thereof with the person then in charge thereof; or by mailing such copies to the treasurer or the clerk thereof by registered or certified mail.(5) Upon an authority, board, committee, or similar entity, subject to suit under a common name, by delivering a copy of the summons and of the complaint to the chairman or other chief executive officer; or by leaving such copies at the office of the said entity with the person then in charge thereof; or by mailing such copies to such officer by registered or certified mail.(6) In any action in which the validity of an order of an officer or agency of the Commonwealth is in any way brought into question, the party questioning the validity shall forthwith forward to the Attorney General of the Commonwealth by hand or by registered or certified mail a brief statement indicating the order questioned.(e) Same: Personal Service Outside the Commonwealth. When any statute or law of the Commonwealth authorizes service of process outside the Commonwealth, the service shall be made by delivering a copy of the summons and of the complaint: (1) in any appropriate manner prescribed in subdivision (d) of this Rule; or (2) 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 (3) by any form of mail addressed to the person to be served and requiring a signed receipt; or (4) as directed by the appropriate foreign authority in response to a letter rogatory; or (5) as directed by order of the court.(f) Return. The person serving the process shall make proof of service thereof in writing to the court promptly and in any event within the time during which the person served must respond to the process. If service is made by a person other than a sheriff, deputy sheriff, or special sheriff, he shall make affidavit thereof. Proof of service outside the Commonwealth may be made by affidavit of the individual who made the service or in the manner prescribed by the law of the Commonwealth, or the law of the place in which the service is made for proof of service in an action in any of its courts of general jurisdiction. When service is made by mail, proof of service shall include a receipt signed by the addressee or such other evidence of personal delivery to the addressee as may be satisfactory to the court. Failure to make proof of service does not affect the validity of the service.(g) 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 is issued.(h) Certain Actions in Probate Courts: Service. Notwithstanding any other provision of these rules, in actions in the Probate Courts in the nature of petitions for instructions or for the allowance of accounts service may be made in accordance with G.L. c. 215, § 46, in such manner and form as the court may order.(i) Land Court. In actions brought in the Land Court, service shall be made by the court where so provided by statute.(j) Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 90 days after the filing of the complaint 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.Rule 45. Subpoena(a) For Attendance of Witnesses; Form; Issuance. Every subpoena shall be issued by the clerk of court, by a notary public, or by a justice of the peace, 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 at a time and place therein specified. The clerk, notary public, or justice of the peace shall issue a subpoena, or a subpoena for the production of documentary evidence, signed but otherwise in blank, to a party requesting it who shall fill it in before service.(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 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, or by exhibiting it and reading it to him, or by leaving a copy at his place of abode; and by tendering to him 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 the Commonwealth or a political subdivision thereof, or an officer, or agency of either, fees and mileage need not be tendered.(d) Subpoena for Taking Deposition; Place of Examination.(1) No subpoena for the taking of a deposition shall be issued prior to the service of a notice to take the deposition. 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 evidence relating to any of the matters within the scope of the examination permitted by these rules, but in that event the subpoena will be subject to the provisions of Rule 26 (c) and subdivision (b) of this rule. A deposition subpoena upon a party which commands the production of documents or things must give the party deponent at least thirty days for compliance after service thereof. Such subpoena shall not require compliance of a defendant within 45 days after service of the summons and complaint on that defendant. The court may allow a shorter or longer time. 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) Unless the court orders otherwise, a resident of this Commonwealth shall not be required to attend an examination at a place more than 50 airline miles distant from either his residence, place of employment, or place of business, whichever is nearest to the place to which he is subpoenaed. A non-resident of the Commonwealth when served with a subpoena within the Commonwealth may be required to attend only in that county wherein he is served, or within 50 airline miles of the place of service, or at such other convenient place as is fixed by an order of court.(e) Subpoena for a Hearing or Trial. At the request of any party subpoenas for attendance at a hearing or trial shall be issued by any of the persons directed in subdivision (a) of this rule. A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the Commonwealth.(f) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court in which the action is pending.MASSACHUSETTS GENERAL LAW136, § 8. Service or examination of process. Civil process shall not be served or executed on Sunday, and such service if made shall be void, and the person who serves or executes it shall be liable in damages to the person aggrieved in like manner as if he had no such process; provided, that this section shall not apply to service of such process by publication in a newspaper published on Sunday.136, § 13. Application of secs. 5 – 11; exceptions. The provisions of sections five to eleven, inclusive, shall, except as provided in section fourteen, apply to all legal holidays, except January first, the third Monday in January, the third Monday in February, March seventeenth, the third Monday in April, May twentieth, June seventeenth, and November eleventh after one o’clock post meridian, or on the day following when any of said days occur on Sunday….
Topics: Process Service | No Comments »
Arizona Foreclosure Process Server Laws
By admin | April 9, 2010
Rule 4(a). Summons; Issuance
When the complaint or any other pleading which requires service of a summons is filed, the clerk shall endorse thereon the day and hour on which it was filed and the number of the action, and shall forthwith issue a summons. The party filing the pleading may present a summons to the clerk for signature and seal. If in proper form, the clerk shall sign and seal the summons and issue it to the party for service or for delivery to a person authorized by Rule 4(d) to serve it. A summons, or a copy of the summons if addressed to multiple persons, shall be issued for each person to be served.
Rule 4(b). Summons; Form; Replacement Summons
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 person to be served, state the name and address of the attorney, if any, for the party on whose behalf service is being made, and otherwise that party’s address. The summons shall state the time within which these Rules require the person being served to appear and defend, and shall notify that person that in case of a failure to do so judgment by default will be rendered against that person for the relief demanded in the pleading served. A summons, or a copy of the summons in the case of multiple persons to be served, shall be served together with a copy of the pleading to be served. If a summons is returned without being served, or if it has been lost, the clerk may upon request issue a replacement summons in the same form as the original. A replacement summons shall be issued and served within the time prescribed by Rule 4(i) of these Rules for service of the original summons. The summons shall state that “requests for reasonable accommodation for persons with disabilities must be made to the court by parties at least 3 working days in advance of a scheduled court proceeding.”
Rule 4(c). Summons; Parties Named Fictitiously; Return
When a pleading which requires service of a summons designates a party whose true name is unknown by a fictitious name pursuant to Rule 10(f) of these Rules, the summons may issue directed to the fictitious name employed for that purpose. The return of service of process upon a person designated therein by a fictitious name shall state the true name of the person or party upon whom it was served.
Rule 4(d). Process; By Whom Served
Service of process shall be by a sheriff, a sheriff’s deputy, a private process server registered with the clerk of the court pursuant to subpart (e) of this Rule, or any other person specially appointed by the court, except that a subpoena may be served as provided in Rule 45. Service of process may also be made by a party or that party’s attorney where expressly authorized by these Rules. A private process server or specially appointed person shall be not less than twenty-one (21) years of age and shall not be a party, an attorney, or the employee of an attorney in the action whose process is being served. Special appointments to serve process shall be requested by motion to the presiding Superior Court judge and the court’s ruling shall be recorded by minute entry. Special appointments shall be granted freely, are valid only for the cause specified in the motion, and do not constitute an appointment as a registered private process server.
Rule 4(e). State-wide Registration of Private Process Servers
A person who files with the clerk of the court an application approved by the Supreme Court, stating that the applicant has been a bona fide resident of the State of Arizona for at least one year immediately preceding the application and that the applicant will well and faithfully serve process in accordance with the law, and who otherwise complies with the procedures set forth by the Supreme Court in its Administrative Order regarding this subsection, shall, upon approval of the court or presiding judge thereof, in the County where the application is filed, be registered with the clerk as a private process server until such approval is withdrawn by the court in its discretion. The clerk shall maintain a register for this purpose. Such private process server shall be entitled to serve in such capacity for any court of the state anywhere within the State.
Rule 4(f). Service; Acceptance or Waiver; Voluntary Appearance
The person to whom a summons or other process is directed may accept service, or waive issuance or service thereof, in writing, signed by that person or by that person’s authorized agent or attorney, and the acceptance or waiver shall be filed in the action. A person upon whom service is required may, in person or by attorney or by an authorized agent, enter an appearance in open court, and the appearance shall be noted by the clerk upon the docket and entered in the minutes. Such waiver, acceptance or appearance shall have the same force and effect as if a summons had been issued and served. The filing of a pleading responsive to a pleading allowed under Rule 7(a) of these Rules shall constitute an appearance.
Rule 4(g). Return of Service
If service is not accepted or waived, then the person effecting service shall make proof thereof to the court. When the process is served by a sheriff or a sheriff’s deputy, the return shall be officially endorsed on or attached thereto and returned to the court promptly. If served by a person other than the sheriff or a deputy sheriff, return and proof of service shall be made promptly by affidavit thereof. Each such affidavit of a registered private process server shall include clear reference to the county where that private process server is registered. When the summons is served by publication, the return of the person making such service shall be made in the manner specified in Rules 4.1(n) and 4.2(e) of these Rules. Proof of service in a place not within any judicial district of the United States shall, if effected under paragraph (1) of Rule 4.2(h), be made pursuant to the applicable treaty or convention; and shall, if effected under paragraph (2) or (3) thereof, include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court. In any event the return shall be made within the time during which the person served must respond to process. Failure to make proof of service does not affect the validity thereof.
Rule 4(h). Amendment of Process or Amendment of Proof of Service
At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.
Rule 4(i). Summons; Time Limit for Service
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. This subdivision does not apply to service in a foreign country pursuant to Rule 4.2(h), (i), (j) and (k) of these rules.
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