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Virginia Foreclosure Process Server Laws

By admin | April 9, 2010

TITLE Â§ 8.01 CIVIL REMEDIES AND PROCEDURE

Â§ 8.01-285. Definition of certain terms for purposes of this chapter; process, return, statutory agent.

For the purposes of this chapter:

1. The term “process” shall be deemed to include notice;

2. The term “return” shall be deemed to include the term “proof of service”;

3. The term “statutory agent” means the Commissioner of the Department of Motor Vehicles and the Secretary of the Commonwealth, and the successors of either, when appointed pursuant to law for the purpose of service of process on the nonresident defined in subdivision 2 of Â§ 8.01-307.

(1977, c. 617; 1991, c. 672.)

Â§ 8.01-286. Forms of writs. Subject to the provisions of Â§ 8.01-3, the Supreme Court may prescribe the forms of writs, and where no such prescription is made, the forms of writs shall be the same as heretofore used.

(Code 1950, Â§ 8-43; 1977, c. 617.)

Â§ 8.01-287. How process to be served. Upon commencement of an action, process shall be served in the manner set forth in this chapter and by the Rules of the Supreme Court.

(Code 1950, Â§ 8-56; 1952, c. 77; 1954, c. 543; 1977, c. 617.)

Â§ 8.01-288. Process received in time good though neither served nor accepted. Process received in time good though neither served nor accepted Except for process commencing actions for divorce or annulment of marriage or other actions wherein service of process is specifically prescribed by statute, process which has reached the person to whom it is directed within the time prescribed by law, if any, shall be sufficient although not served or accepted as provided in this chapter. (Code 1950, Â§ 8-53; 1977, c. 617; 1987, c. 594; 1988, c. 583.)

Â§ 8.01-289. No service of process on Sunday; exceptions. No civil process shall be served on Sunday, except in cases of persons escaping out of custody, or where it is otherwise expressly provided by law.

Â§ 8.01-290. Plaintiffs required to furnish full name and last known address of defendants, etc. Upon the commencement of every action, the plaintiff shall furnish in writing to the clerk or other issuing officer the full name and last known address of each defendant and if unable to furnish such name and address, he shall furnish such salient facts as are calculated to identify with reasonable certainty such defendant. The clerk or other official whose function it is to issue any such process shall note in the record or in the papers the address or other identifying facts furnished. Failure to comply with the requirements of this section shall not affect the validity of any judgment.

(Code 1950, Â§ 8-46.1; 1962, c. 10; 1977, c. 617.)

Â§ 8.01-291. Copies to be made. The clerk issuing any such process unless otherwise directed shall deliver or transmit therewith as many copies thereof as there are persons named therein on whom it is to be served.

(Code 1950, Â§ 8-57; 1977, c. 617.)

Â§ 8.01-292. To whom process directed and where executed. – Process from any court, whether original, mesne, or final, may be directed to the sheriff of, and may be executed in, any county, city, or town in the Commonwealth.

(Code 1950, Â§ 8-44; 1954, c. 333; 1977, c. 617.)

Â§ 8.01-293. Who to serve process.

A. The following persons are authorized to serve process:

1. The sheriff within such territorial bounds as described in Â§ 8.01-295; or

2. Any person of age eighteen years or older and who is not a party or otherwise interested in the subject matter in controversy. Whenever in this Code the term “officer” or “sheriff” is used to refer to persons authorized to make, return or do any other act relating to service of process, such term shall be deemed to refer to any person authorized by this section to serve process.

B. Notwithstanding any other provision of law (i) only a sheriff may execute an order or writ of possession for personal, real or mixed property, including an order or writ of possession arising out of an action in unlawful entry and detainer or ejectment; (ii) any sheriff or law-enforcement officer as defined in Â§ 9-169 of the Code of Virginia may serve any capias or criminal show cause order; and (iii) only a sheriff, the high constable for the City of Norfolk or Virginia Beach or a treasurer may levy upon property.

(Code 1950, Â§Â§ 8-52, 8-54; 1954, c. 543; 1960 c. 16, 1968, c. 484, 1977, c. 617, 1981, c. 110, 1986, c. 275; 1996, cc. 501, 608: 1997, c. 820.)

Case Note: Where nothing in the record established that process server was qualified to serve process under Virginia’s procedural requirements, service of process was invalid, and the court did not acquire personal jurisdiction over defendant. Harrel v. Preston, 15 Va.App. 202, 421 S.E.2d 676 (1992).

Â§ 8.01-294. Sheriff to get from clerk’s office process and other papers; return of papers. Every sheriff who attends a court shall, every day when the clerk’s office is open for business, go to such office and receive all process, and other papers to be served by him, and give receipts therefor, unless he has received notice from a regular employee of the clerk’s office that there are no such papers requiring service and shall return all papers within seventy-two hours of service, except when such returns would be due on a Saturday, Sunday, or legal holiday. In such case, the return is due on the next day following such Saturday, Sunday, or legal holiday.

(Code 1950, Â§ 8-49; 1954, c. 545; 1977, c. 617; 1978, c. 831.)

Â§ 8.01-295. Territorial limits within which sheriff may serve process in his official capacity; process appearing to be duly served. The sheriff may execute such process throughout the political subdivision in which he serves and in any contiguous county or city. If the process appears to be duly served, and is good in other respects, it shall be deemed valid although not directed to an officer, or if directed to any officer, though executed by some other person. This section shall not be construed to require the sheriff to serve such process in any jurisdiction other than in his own.

(Code 1950, Â§ 8-50; 1977, c. 617; 1982, c. 674.)

Â§ 8.01-296. Manner of serving process upon natural persons.

In any action at law or in equity or any other civil proceeding in any court, process, for which no particular mode of service is prescribed, may be served upon natural persons as follows:

1. By delivering a copy thereof in writing to the party in person; or

2. By substituted service in the following manner:

a. If the party to be served is not found at his usual place of abode, by delivering a copy of such process and giving information of its purport to any person found there, who is a member of his family, other than a temporary sojourner or guest, and who is of the age of sixteen years or older; or

b. If such service cannot be effected under subdivision 2 a, then by posting a copy of such process at the front door or at such other door as appears to be the main entrance of such place of abode, provided that not less than ten days before judgment by default may be entered, the party causing service or his attorney or agent mails to the party served a copy of such process and thereafter files in the office of the clerk of the court a certificate of such mailing. In any civil action brought in a general district court, the mailing of the application for a warrant in debt or affidavit for summons in unlawful detainer or other civil pleading or a copy of such pleading, whether yet issued by the court or not, which contains the date, time and place of the return, prior to or after filing such pleading in the general district court, shall satisfy the mailing requirements of this section. In any civil action brought in a circuit court, the mailing of a copy of the pleadings with a notice that the proceedings are pending in the court indicated and that upon the expiration of ten days after the giving of the notice and the expiration of the statutory period within which to respond, without further notice, the entry of a judgment by default as prayed for in the pleadings may be requested, shall satisfy the mailing requirements of this section and any notice requirement of the Rules of Court. Any judgment by default entered after July 1, 1989, upon posted service in which proceedings a copy of the pleadings was mailed as provided for in this section prior to July 1, 1989, is validated.

c. The person executing such service shall note the manner and the date of such service on the original and the copy of the process so delivered or posted under subdivision 2 and shall effect the return of process as provided in Â§Â§ 8.01-294 and 8.01-325.

3. If service cannot be effected under subdivisions 1 and 2 of this section, then by order of publication in appropriate cases under the provisions of Â§Â§ 8.01-316 through 8.01-320.

(Code 1950, Â§ 8-51; 1954, c. 333; 1977, c. 617; 1989, cc. 518, 524; 1990, cc. 729, 767; 1996, c. 538.)

Â§ 8.01-297. Process on convict defendant. In all actions against one who has been convicted of a felony and is confined in a local or regional jail or State correctional institution, process shall be served on such convict and, subject to Â§ 8.01-9, a guardian ad litem shall be appointed for him. Such service may be effected by delivery to the officer in charge of such jail or institution whose duty it shall be to deliver forthwith such process to the convict.

(Code 1950, Â§ 8-55; 1954, c. 543; 1977, c. 617.)

Â§ 8.01-299. How process served on domestic corporations generally. Except as prescribed in Â§ 8.01-300 as to municipal and quasi-governmental corporations, process may be served on a corporation created by the laws of this State as follows:

1. By personal service on any officer, director, or registered agent of such corporation; or

2. By substituted service on stock corporations in accordance with Â§ 13.1-637 and on nonstock corporations in accordance with Â§ 13.1-836.

(Code 1950, Â§ 8-59; 1954, c. 23; 1956, c. 432; 1958, c. 13; 1976, c. 395; 1977, c. 617; 1991, c. 672.)

Â§ 8.01-300. How process served on municipal and county governments and on quasi-governmental entities. Notwithstanding the provisions of Â§ 8.01-299 for service of process on other domestic corporations, process shall be served on municipal and county governments and quasi-governmental bodies or agencies in the following manner:

1. If the case be against a city or a town, on its city or town attorney in those cities or towns which have created such a position, otherwise on its mayor manager or trustee of such town or city; and

2. If the case be against a county, on its county attorney in those counties which have created such a position, otherwise on its attorney for the Commonwealth; and

3. If the case be against any political subdivision, or any other public governmental entity created by the laws of the Commonwealth and subject to suit as an entity separate from the Commonwealth, then on the director, commissioner, chief administrative officer, attorney, or any member of the governing body of such entity; and

4. If the case be against a supervisor, county officer, employee or agent of the county board, arising out of official actions of such supervisor, officer, employee or agent, then, in addition to the person named defendant in the case, on each supervisor and the county attorney, if the county has a county attorney, and if there be no county attorney, on the clerk of the county board.

Service under this section may be made by leaving a copy with the person in charge of the office of any officer designated in subdivisions 1 through 4.

(Code 1950, Â§ 8-59; 1954, c. 23; 1956, c. 432; 1958, c. 13; 1976, c. 395; 1977, c. 617; 1980, c. 732; 1985, c. 416.)

Â§ 8.01-301. How process served on foreign corporations generally. Service of process on a foreign corporation may be effected in the following manner:

1. By personal service on any officer, director or on the registered agent of a foreign corporation which is authorized to do business in the Commonwealth, and by personal service on any agent of a foreign corporation transacting business in the Commonwealth without such authorization, wherever any such officer, director, or agents be found within the Commonwealth;

2. By substituted service on a foreign corporation in accordance with Â§Â§ 13.1-766 and 13.1-928, if such corporation is authorized to transact business or affairs within the Commonwealth;

3. By substituted service on a foreign corporation in accordance with Â§ 8.01-329 where jurisdiction is authorized under Â§ 8.01-328.1, regardless of whether such foreign corporation is authorized to transact business within the Commonwealth; or

4. By order of publication in accordance with Â§Â§ 8.01-316 and 8.01-317 where jurisdiction in rem or quasi in rem is authorized, regardless of whether the foreign corporation so served is authorized to transact business within the Commonwealth.

(Code 1950, Â§ 8-60; 1977, c. 617; 1991, c. 672.)

Â§ 8.01-302. Service of certain process on foreign or domestic corporations. In addition to other provisions of this chapter for service on corporations, process in attachment or garnishment proceedings, and notice by a creditor of judgment obtained and execution thereon issued in his favor, may be served on any agent of a foreign or domestic corporation wherever such agent may be found within the Commonwealth. Service so made shall constitute sufficient service upon such corporation; provided that notice of judgment obtained and execution issued shall comply in all respects to the provisions of Â§Â§ 8.01-502, 8.01-503 and 8.01-504.

(Code 1950, Â§ 8-63; 1977, c. 617.)

Â§ 8.01-303. On whom process served when corporation operated by trustee or receiver. When any corporation is operated by a trustee or by a receiver appointed by any court, in any action against such corporation, process may be served on its trustee or receiver; and if there be more than one such trustee or receiver, then service may be on any one of them. In the event that no service of process may be had on any such trustee or receiver, then process may be served by any other mode of service upon corporations authorized by this chapter.

(Code 1950, Â§ 8-64; 1977, c. 617.)

Â§ 8.01-304. How process served on copartner or partnership. Process against a copartner or partnership may be served upon a general partner, and it shall be deemed service upon the partnership and upon each partner individually named in the action, provided the person served is not a plaintiff in the suit and provided the matter in suit is a partnership matter. Provided further that process may be served upon a limited partner in any proceeding to enforce a limited partner’s liability to the partnership. (Code 1950, Â§ 8-59.1; 1950, p. 455; 1977, c. 617.)

Â§ 8.01-305. Process against unincorporated associations or orders, or unincorporated common carriers. Process against an unincorporated (i) association, (ii) order, or (iii) common carrier, may be served on any officer, trustee, director, staff member or other agent.

(Code 1950, Â§Â§ 8-66, 8-67; 1962, c. 250; 1977, c. 617.)

Â§ 8.01-306. Process against unincorporated associations or orders, or unincorporated common carriers; principal office outside Virginia and business transactions in Virginia. If an unincorporated (i) association, (ii) order, or (iii) common carrier has its principal office outside Virginia and transacts business or affairs in the Commonwealth, process may be served on any officer, trustee, director, staff member, or agent of such association, order, or carrier in the city or county in which he may be found or on the clerk of the State Corporation Commission, who shall be deemed by virtue of such transaction of business or affairs in the Commonwealth to have been appointed statutory agent of such association, order, or carrier upon whom may be made service of process in accordance with Â§ 12.1-19.1. Service, when duly made, shall constitute sufficient foundation for a personal judgment against such association, order or carrier. If service may not be had as aforesaid, then on affidavit of that fact an order of publication may be awarded as provided by Â§Â§ 8.01-316 and 8.01-317.

(Code 1950, Â§ 8-66.1; 1962, c. 250; 1977, c. 617; 1991, c. 672.)

Â§ 8.01-307. Definition of terms “motor vehicle” and “nonresident” in motor vehicle and aircraft accident cases. For the purpose of Â§Â§ 8.01-308 through 8.01-313: (Code 1950, Â§ 8-66.1; 1962, c. 250; 1977, c. 617; 1991, c. 672.)

1. The term “motor vehicle” shall mean every vehicle which is self-propelled or designed for self-propulsion and every vehicle drawn by or designed to be drawn by a motor vehicle and includes every device in, upon, or by which any person or property is or can be transported or drawn upon a highway, except devices moved by human or animal power and devices used exclusively upon stationary rails or tracks.

2. The term “nonresident” includes any person who, though a resident of the Commonwealth when the accident or collision specified in Â§ 8.01-308 or Â§ 8.01-309 occurred, has been continuously outside the Commonwealth for at least sixty days next preceding the date when process is left with the Commissioner of the Department of Motor Vehicles or the Secretary of the Commonwealth and includes any person against whom an order of publication may be issued under the provisions of Â§ 8.01-316.

(Code 1950, Â§ 8-67.1; 1950, p. 620; 1952, c. 681; 1956, c. 64; 1966, c. 518; 1977, c. 617.)

Â§ 8.01-308. Service on Commissioner of the Department of Motor Vehicles as agent for nonresident motor vehicle operator. Any operation in the Commonwealth of a motor vehicle by a nonresident, including those nonresidents defined in subdivision 2 of Â§ 8.01-307, either in person or by an agent or employee, shall be deemed equivalent to an appointment by such nonresident of the Commissioner of the Department of Motor Vehicles, and his successors in office, to be the attorney or statutory agent of such nonresident for the purpose of service of process in any action against him growing out of any accident or collision in which such nonresident, his agent, or his employee may be involved while operating motor vehicles in this Commonwealth. Acceptance by a nonresident of the rights and privileges conferred by Article 5 (Â§ 46.2-655 et seq.) of Chapter 6 of Title 46.2 shall have the same effect under this section as the operation of such motor vehicle, by such nonresident, his agent, or his employee.

(Code 1950, Â§ 8-67.1; 1950, p. 620; 1952, c. 681; 1956, c. 64; 1966, c. 518; 1977, c. 617.)

Â§ 8.01-309. Service on Secretary of Commonwealth as agent of nonresident operator or owner of aircraft. Any nonresident owner or operator of any aircraft that is operated over and above the land and waters of the Commonwealth or uses aviation facilities within the Commonwealth, shall by such operation and use appoint the Secretary of the Commonwealth as his statutory agent for the service of process in any action against him growing out of any accident or collision occurring within or above the Commonwealth in which such aircraft is involved.

(Code 1950, Â§ 8-67.4; 1952, c. 384; 1954, c. 333; 1977, c. 617.)

Â§ 8.01-310. How service made on Commissioner and Secretary; appointment binding.

A. Service of process on either the Commissioner of the Department of Motor Vehicles as authorized under Â§ 8.01-308 or on the Secretary of the Commonwealth as authorized under Â§ 8.01-309, shall be made by leaving a copy of such process together with the fee for service of process on parties, in the amount prescribed in Â§ 2.1-71.2, for each party to be thus served, in the hands, or in the office, of such Commissioner or such Secretary and such service shall be sufficient upon the nonresident. All fees collected by the Commissioner pursuant to the provisions of this section shall be paid into the state treasury and shall be set aside as a special fund to be used to meet the expenses of the Department of Motor Vehicles.

B. Appointment of the Commissioner or Secretary as attorney or agent for the service of process on a nonresident under Â§ 8.01-308 or Â§ 8.01-309 shall be irrevocable and binding upon the executor or other personal representative of such nonresident:

1. Where a nonresident has died before the commencement of an action against him regarding an accident or collision under Â§ 8.01-308 or Â§ 8.01-309 shall be irrevocable and binding upon the executor or other personal representative of such nonresident; or

2. Where a nonresident dies after the commencement of an action against him regarding an accident or collision under Â§ 8.01-308 or Â§ 8.01-309, the action shall continue and shall be irrevocable and binding upon his executor, administrator, or other personal representative with such additional notice of the pendency of the action as the court deems proper.

(Code 1950, Â§Â§ 8-67.2, 8-67.4; 1952, c. 384; 1954, c. 333; 1970, c. 680; 1972, c. 408; 1976, c. 26; 1977, c. 617; 1987, c. 696; 1992, c. 459; 2000, c. 579.)

Â§ 8.01-311. Continuance of action where service made on Commissioner or Secretary. The court, in which an action is pending against a nonresident growing out of an accident or collision as specified in Â§Â§ 8.01-308 and 8.01-309, may order such continuances as necessary to afford such nonresident reasonable opportunity to defend the action.

(Code 1950, Â§ 8-67.3; 1954, c. 547; 1977, c. 617.)

Â§ 8.01-312. Effect of service on statutory agent; duties of such agent.

A. Service of process on the statutory agent shall have the same legal force and validity as if served within the Commonwealth personally upon the person for whom it is intended. Provided that such agent shall forthwith send by registered or certified mail, with return receipt requested, a copy of the process to the person named therein and for whom the statutory agent is receiving the process. Provided further that the statutory agent shall file an affidavit of compliance with this section with the papers in the action; this filing shall be made in the office of the clerk of the court in which the action is pending.

B. Unless otherwise provided by Â§ 8.01-313 and subject to the provisions of Â§ 8.01-316, the address for the mailing of the process required by this section shall be that as provided by the party seeking service.

(Code 1950, Â§ 8-67.2; 1954, c. 333; 1970, c. 680; 1972, c. 408; 1976, c. 26; 1977, c. 617.)

Â§ 8.01-313. Specific addresses for mailing by statutory agent.

A. For the statutory agent appointed pursuant to Â§Â§ 8.01-308 and 8.01-309, the address for the mailing of the process as required by Â§ 8.01-312 shall be the last known address of the nonresident or, where appropriate under subdivision 1 or 2 of Â§ 8.01-310 B, of the executor, administrator, or other personal representative of the nonresident. However, upon the filing of an affidavit by the plaintiff that he does not know and is unable with due diligence to ascertain any post-office address of such nonresident, service of process on the statutory agent shall be sufficient without the mailing otherwise required by this section. Provided further that:

1. In the case of a nonresident defendant licensed by the Commonwealth to operate a motor vehicle, the last address reported by such defendant to the Department of Motor Vehicles as his address on an application for or renewal of a driver’s license shall be deemed to be the address of the defendant for the purpose of the mailing required by this section if no other address is known, and, in any case in which the affidavit provided for in Â§ 8.01-316 of this chapter is filed, such a defendant, by so notifying the Department of such an address, and by failing to notify the Department of any change therein, shall be deemed to have appointed the Commissioner of the Department of Motor Vehicles his statutory agent for service of process in an action arising out of operation of a motor vehicle by him in the Commonwealth, and to have accepted as valid service such mailing to such address; or

2. In the case of a nonresident defendant not licensed by the Commonwealth to operate a motor vehicle, the address shown on the copy of the report of accident required by Â§ 46.2-372 filed by or for him with the Department, and on file at the office of the Department, or the address reported by such a defendant to any state or local police officer, or sheriff investigating the accident sued on, if no other address is known, shall be conclusively presumed to be a valid address of such defendant for the purpose of the mailing provided for in this section, and his so reporting of an incorrect address, or his moving from the address so reported without making provision for forwarding to him of mail directed thereto, shall be deemed to be a waiver of notice and a consent to and acceptance of service of process served upon the Commissioner of the Department of Motor Vehicles as provided in this section.

B. For the statutory agent appointed pursuant to Â§ 26-59, the address for the mailing of process as required by Â§ 8.01-312 shall be the address of the fiduciary’s statutory agent as contained in the written consent most recently filed with the clerk of the circuit court wherein the qualification of such fiduciary was had or, in the event of the death, removal, resignation or absence from the Commonwealth of such statutory agent, or in the event that such statutory agent cannot with due diligence be found at such address, the address of the clerk of such circuit court.

(Code 1950, Â§ 8-67.2; 1954, c. 333; 1970, c. 680; 1972, c. 408; 1976, c. 26; 1977, c. 617; 1983, c. 467; 1984, c. 780; 1991, c. 672.)

Â§ 8.01-314. Service on attorney after entry of general appearance by such attorney. When an attorney authorized to practice law in this Commonwealth has entered a general appearance for any party, any process, order or other legal papers to be used in the proceeding may be served on such attorney of record. Such service shall have the same effect as if service had been made upon such party personally; provided, however, that in any proceeding in which a final decree or order has been entered, service on an attorney as provided herein shall not be sufficient to constitute personal jurisdiction over a party in any proceeding citing that party for contempt, either civil or criminal, unless personal service is also made on the party. Provided, further, that if such attorney objects by motion within five days after such legal paper has been so served upon him, the court shall enter an order in the proceeding directing the manner of service of such legal paper.

(Code 1950, Â§ 8-69; 1977, c. 617; 1981, c. 495.)

Â§ 8.01-315. Notice to be mailed defendant when service accepted by another. No judgment shall be rendered upon, or by virtue of, any instrument in writing authorizing the acceptance of service of process by another on behalf of any person who is obligated upon such instrument, when such service is accepted as therein authorized, unless the person accepting service shall have made and filed with the court an affidavit showing that he mailed or caused to be mailed to the defendant at his last known post-office address at least ten days before such judgment is to be rendered a notice stating the time when and place where the entry of such judgment would be requested.

(Code 1950, Â§ 8-70; 1977, c. 617.)

Â§ 8.01-316. Service by publication; when available.

A. Except in condemnation actions, an order of publication may be entered against a defendant in the following manner:

1. An affidavit by a party seeking service stating one or more of the following grounds:

a. That the party to be served is (i) a foreign corporation, (ii) a foreign unincorporated association, order, or a foreign unincorporated common carrier, or (iii) a nonresident individual, other than a nonresident individual fiduciary who has appointed a statutory agent under Â§ 26-59, or

b. That diligence has been used without effect to ascertain the location of the party to be served; or c. That the last known residence of the party to be served was in the county or city in which service is sought and that a return has been filed by the sheriff that the process has been in his hands for twenty-one days and that he has been unable to make service; or

2. In any action, when (i) a pleading states that there are or may be persons, whose names are unknown, interested in the subject to be divided or disposed of; (ii) briefly describes the nature of such interest; and (iii) makes such persons defendants by the general description of “parties unknown”; or

3. In any action, when (i) the number of defendants upon whom process has been served exceeds ten and (ii) it appears by a pleading, or exhibit filed, that such defendants represent like interests with the parties not served with process.

Under subdivisions 1 and 2 of this section, the order of publication may be entered by the clerk of the court. Under this subdivision such order may be entered only by the court.

Every affidavit for an order of publication shall state the last known post office address of the party against whom publication is asked, or if such address is unknown, the affidavit shall state that fact.

B. The cost of such publication shall be paid initially by the party seeking service; however, such costs ultimately may be recoverable pursuant to Â§ 17.1-601. (Code 1950, Â§ 8-71; 1952, c. 522; 1977, c. 617; 1982, c. 384; 1983, c. 467; 1996, c. 352; 1999, c. 353.)

Â§ 8.01-317. What order of publication to state; how published; when publication in newspaper dispensed with. Except in condemnation actions, every order of publication shall give the abbreviated style of the suit, state briefly its object, and require the defendants, or unknown parties, against whom it is entered to appear and protect their interests on or before the date stated in the order which shall be no sooner than fifty days after entry of the order of publication. Such order of publication shall be published once each week for four successive weeks in such newspaper as the court may prescribe, or, if none be so prescribed, as the clerk may direct, and shall be posted at the front door of the courthouse wherein the court is held also a copy of such order of publication shall be mailed to each of the defendants at the post office address given in the affidavit required by Â§ 8.01-316. The clerk shall cause copies of the order to be so posted, mailed, and transmitted to the designated newspaper within twenty days after the entry of the order of publication. Upon completion of such publication, the clerk shall file a certificate in the papers of the case that the requirements of this section have been complied with. Provided, the court may, in any case where deemed proper dispense with such publication in a newspaper. The cost of such publication shall be paid by the petitioner or applicant.

(Code 1950, Â§ 8-72; 1977, c. 617; 1982, c. 384; 1996, cc. 352, 710.)

Â§ 8.01-318. Within what time after publication case tried or heard; no subsequent publication required. If after an order of publication has been executed, the defendants or unknown parties against whom it is entered shall not appear on or before the date specified in such order, the case may be tried or heard as to them. When the provisions of Â§ 8.01-317, or, if applicable, the provisions of Â§ 8.01-321, have been complied with, no other publication or notice shall thereafter be required in any proceeding in court, or before a commissioner, or for the purpose of taking depositions, unless specifically ordered by the court as to such defendants or unknown parties.

(Code 1950, Â§ 8-73; 1968, c. 456; 1977, c. 617.)

Â§ 8.01-319. Publication of interim notice.

A. In any case in which a nonresident party or party originally served by publication has been served as provided by law, and notice of further proceedings in the case is required but no method of service thereof is prescribed either by statute or by order or rule of court, such notice may be served by publication thereof once each week for two successive weeks in a newspaper published or circulated in the city or county in which the original proceedings are pending. If the original proceedings were instituted by order of publication, then the publication of such notice of additional or further proceedings shall be made in the same newspaper. A party, who appears pro se in an action, shall file with the clerk of the court in which the action is pending a written statement of his place of residence and mailing address, and shall inform the clerk in writing of any changes of residence and mailing address during the pendency of the action. The clerk and all parties to the action may rely on the last written statement filed as aforesaid. The court in which the action is pending may dispense with such notice for failure of the party to file the statement herein provided for or may require notice to be given in such manner as the court may determine.

B. Notwithstanding any provision to the contrary in paragraph A hereof, depositions may be taken, testimony heard and orders and decrees entered without an order of publication, when the defendant has been legally served with or has accepted service of process to commence a suit for divorce or for annulling or affirming a marriage, and he or she or the plaintiff:

1. Shall thereafter become a nonresident; or

2. Shall remove from the county or city in which the suit is pending, if a resident thereof, or in which he or she resided at the time of the institution of the suit, or was served with process, without having filed with the clerk of the court where the suit is pending a written statement of his or her intended future place of residence, and a like statement of subsequent changes of residence; or

3. When after such written statement has been filed with the clerk, notice shall have been served upon him or her at the last place of residence given in the written statement as provided by law; or

4. Could not be found by the sheriff of the county or city for the service of the notice, and the party sending the service makes affidavit that he has used due diligence to find the adverse party without success. If such absent party has an attorney of record in such suit, notice shall be served on such attorney, as provided by Â§ 8.01-314.

C. This section shall not apply to orders of publication in condemnation actions.

(Code 1950, Â§ 8-76; 1950, p. 68; 1954, c. 333; 1960, c. 16; 1970, cc. 241, 279; 1977, c. 617; 1978, c. 676; 1979, c. 464; 1982, c. 384.)

Â§ 8.01-320. Personal service outside of Virginia.

A. Personal service of a process on a nonresident person outside the Commonwealth may be made by: (i) any person authorized to serve process in the jurisdiction where the party to be served is located; or (ii) any person eighteen years of age or older who is not a party or otherwise interested in the subject matter of the controversy and notwithstanding any other provision of law to the contrary, such person need not be authorized by the circuit court to serve process which commences divorce or annulment actions. When the court can exercise jurisdiction over the nonresident pursuant to Â§ 8.01-328.1, such service shall have the same effect as personal service on the nonresident within Virginia. Such service when no jurisdiction can be exercised pursuant to Â§ 8.01-328.1, or service in accordance with the provisions of subdivision 2 a of Â§ 8.01-296 shall have the same effect, and no other, as an order of publication duly executed, or the publication of a copy of process under this chapter, as the case may be; however, depositions may be taken at any time after twenty-one days’ notice of the taking of the depositions has been personally served. The person so served shall be in default upon his failure to file a pleading in response to original process within twenty-one days after such service. If no responsive pleading is filed within the time allowed by law, the case may proceed without service of any additional pleadings, including the notice of the taking of depositions.

B. Any personal service of process outside of this Commonwealth executed in such manner as is provided for in this section prior or subsequent to October 1, 1977, in a divorce or annulment action is hereby validated. Personal service of process outside this Commonwealth in a divorce or annulment action may be executed as provided in this section.

(Code 1950, Â§ 8-74; 1954, c. 333; 1970, c. 552; 1977, c. 617; 1978, c. 90; 1981, c. 6; 1983, c. 402; 1984, c. 18; 1985, c. 177; 1986, c. 263; 1987, c. 594; 1997, c. 754.)

Â§ 8.01-322. Within what time case reheard on petition of party served by publication, and any injustice corrected. If a party against whom service by publication is had under this chapter did not appear before the date of judgment against him, then such party or his representative may petition to have the case reheard, may plead or answer, and may have any injustice in the proceeding corrected within the following time and not after:

1. Within two years after the rendition of such judgment, decree or order; but

2. If the party has been served with a copy of such judgment, decree, or order more than a year before the end of such two-year period, then within one year of such service.

For the purpose of subdivision 2 of this section, service may be made in any manner provided in this chapter except by order of publication, but including personal or substituted service on the party to be served, and personal service out of the Commonwealth by any person of eighteen years or older and who is not a party or otherwise interested in the subject matter in controversy.

(Code 1950, Â§ 8-78; 1977, c. 617.)

Â§ 8.01-325. Return by person serving process. Unless otherwise directed by the court, the person serving process shall make return thereof to the clerk’s office within seventy-two hours of service, except when such return would be due on a Saturday, Sunday, or legal holiday. In such case, the return is due on the next day following such Saturday, Sunday, or legal holiday. The process shall state thereon the date and manner of service and the name of the party served. Proof of service shall be in the following manner:

1. If service by sheriff, the form of the return of such sheriff as provided by the Rules of the Supreme Court; or

2. If service by any other person qualified under Â§ 8.01-293, whether service made in or out of the Commonwealth, his affidavit of such qualifications; the date and manner of service and the name of the party served; and stamped, typed, or printed on the return of process, an annotation that the service was by a private server, and the name, address, and telephone number of the server; or

3. In case of service by publication, the affidavit of the publisher or his agent giving the dates of publication and an accompanying copy of the published order.

(Code 1950, Â§Â§ 8-52, 8-329; 1977, c. 617; 1996, c. 538.)

Case Note:

Where nothing in the record established that process server was qualified to serve process under Virginia’s procedural requirements, service of process was invalid, and the court did not acquire personal jurisdiction over defendant. Harrel v. Preston, 15 Va.App. 202, 421 S.E.2d 676 (1992).

Â§ 8.01-326. Return as proof of service. No return shall be conclusive proof as to service of process. The return of a sheriff shall be prima facie evidence of the facts therein stated, and the return of a qualified individual under subdivision 2 of Â§ 8.01-293 shall be evidence of the facts stated therein.

(1977, c. 627.)

Â§ 8.01-326.1. Service of process or notice on statutory agent; copy to be sent to defendant and certificate filed with court; effective date of service. Any statutory agent who has been served with process or notice shall forthwith mail a copy of such process or notice to the person or persons to be served at the last known post office address of such person and file a certificate of compliance with the papers in the action. Service of process or notice on a statutory agent shall be effective as of the date the certificate of compliance is filed with the clerk of the court in which the action or suit is pending.

(1990, c. 741.)

Â§ 8.01-327. Acceptance of service of process. Service of process may be accepted by the person for whom it is intended by signing the proof of service and indicating the jurisdiction and state in which it was accepted. However, service of process in divorce or annulment actions may be accepted only as provided in Â§ 20-99.1:1.

(1977, c. 617; 1987, c. 594; 1988, cc. 583, 642.)

Â§ 8.01-329. Service of process or notice; service on Secretary of Commonwealth.

A. When the exercise of personal jurisdiction is authorized by this chapter, service of process or notice may be made in the same manner as is provided for in Chapter 8 (Â§ 8.01-285 et seq.) of this title in any other case in which personal jurisdiction is exercised over such a party, or process or notice may be served on any agent of such person in the county or city in this Commonwealth in which that agent resides or on the Secretary of the Commonwealth of Virginia, hereinafter referred to in this section as the “Secretary,” who, for this purpose, shall be deemed to be the statutory agent of such person.

B. When service is to be made on the Secretary, the party or his agent or attorney seeking service shall file an affidavit with the court, stating either (i) that the person to be served is a nonresident or (ii) that, after exercising due diligence, the party seeking service has been unable to locate the person to be served. In either case, such affidavit shall set forth the last known address of the person to be served. When the person to be served is a resident, the signature of an attorney, party or agent of the person seeking service on such affidavit shall constitute a certificate by him that process has been delivered to the sheriff or to a disinterested person as permitted by Â§ 8.01-293 for execution and, if the sheriff or disinterested person was unable to execute such service, that the person seeking service has made a bona fide attempt to determine the actual place of abode or location of the person to be served.

C. Service of such process or notice on the Secretary shall be made by the plaintiff’s, his agent’s or the sheriff’s leaving a copy of the process or notice together with a copy of the affidavit called for in subsection B hereof and the fee prescribed in Â§ 2.1-71.2 in the office of the Secretary in the City of Richmond, Virginia. Service of process or notice on the Secretary may be made by mail if such service otherwise meets the requirements of this section. Such service shall be sufficient upon the person to be served, provided that notice of such service, a copy of the process or notice, and a copy of the affidavit are forthwith mailed by certified mail, return receipt requested, by the Secretary to the person or persons to be served at the last known post-office address of such person, and a certificate of compliance herewith by the Secretary or someone designated by him for that purpose and having knowledge of such compliance, shall be forthwith filed with the papers in the action. Service of process or notice on the Secretary shall be effective on the date the certificate of compliance is filed with the court in which the action is pending.

D. Service of process in actions brought on a warrant or motion for judgment pursuant to Â§ 16.1-79 or Â§ 16.1-81 shall be void and of no effect when such service of process is received by the Secretary within ten days of any return day set by the warrant. In such cases, the Secretary shall return the process or notice, the copy of the affidavit, and the prescribed fee to the plaintiff or his agent. A copy of the notice of the rejection shall be sent to the clerk of the court in which the action was filed.

E. The Secretary shall maintain a record of each notice of service sent to a person for a period of two years. The record maintained by the Secretary shall include the name of the plaintiff or the person seeking service, the name of the person to be served, the date service was received by the Secretary, the date notice of service was forwarded to the person to be served, and the date the certificate of compliance was sent by the Secretary to the appropriate court. The Secretary shall not be required to maintain any other records pursuant to this section.

(Code 1950, Â§ 8-813; 1977, c. 617; 1979, c. 31; 1986, c. 388; 1987, cc. 449, 450, 459; 1990, c. 741; 1998, c. 259.)

VA Rules: Rules of Supreme Court of Virginia

Rule 3A:12. Subpoena.

(a) For Attendance of Witnesses. – A subpoena for the attendance of a witness to testify’ before a court not of record shall be issued by the judge, clerk, magistrate, or Commonwealth’s Attorney. A subpoena for the attendance of a witness to testify before a circuit court or a grand jury shall be issued by the clerk or Commonwealth’s attorney. The subpoena shall (i) be directed to an appropriate officer or officers, (ii) name the witness to be summoned, (iii) state the name of the court and the title, if any, of the proceeding, (iv) command the officer to summon the witness to appear at the time and place specified in the subpoena for the purpose of giving testimony, and (v) state on whose application the subpoena was issued.

No subpoena or subpoena duces tecum shall be issued in any criminal case or proceeding, including any proceeding before any grand jury, which subpoena or subpoena duces tecum is (i) directed to a member of the bar of this Commonwealth or any other jurisdiction, and (ii) compels production or testimony concerning any present or former client of the member of the bar, unless the subpoena request has been approved in all specifics, in advance, by a judge of the circuit court wherein the subpoena is requested after reasonable notice to the attorney who is the subject of the proposed subpoena. The proceedings for approval may be conducted in camera, in the judge’s discretion, and the judge may seal such proceedings. Such subpoena request shall be made by the Commonwealth’s attorney for the jurisdiction involved, either on motion of the Commonwealth’s attorney or upon request to the Commonwealth’s attorney by the foreman of any grand jury.

(b) For Production of Documentary Evidence and of Objects Before a Circuit Court. – Upon notice to the adverse party and on affidavit by the party applying for the subpoena that the requested writings or objects are material to the proceedings and are in the possession of a person not a party to the action, the judge or the clerk may issue a subpoena duces tecum for the production of writings or objects described in the subpoena. Such subpoena shall command either (1) that the individual to whom it is addressed shall appear in person and with the items described either before the court or the clerk or (2) that such individual shall deliver the items described to the clerk. The subpoena may direct that the writing or object be produced at a time before the trial or before the time when it is to be offered in evidence.

Any subpoenaed writings and objects, regardless by whom requested, shall be available for examination and review by all parties and counsel. Subpoenaed writings or objects shall be received by the clerk and shall not be open for examination and review except by the parties and counsel unless otherwise directed by the court. The clerk shall adopt procedures to ensure compliance with this paragraph.

Where subpoenaed writings and objects are of such nature or content that disclosure to other parties would be unduly prejudicial, the court, upon written motion and notice to all patties, may grant such relief as it deems appropriate, including limiting disclosure, removal and copying.

(c) Service and Return. A subpoena may be executed anywhere in the State by an officer authorized by law to execute the subpoena in the place where it is executed. The officer executing a subpoena shall make return thereof to the court named in the subpoena.

(d) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court to which the subpoena is returnable.

(e) Recognizance of a Witness. – If it appears that the testimony of a person is material in any criminal proceeding, a judicial officer may require him to give a recognizance for his appearance.

(f) Photocopying of Subpoenaed Documents. – Subject to the provisions of subsection (b). removal and photocopying of subpoenaed documents by any party or counsel shall be permitted. The court shall direct a procedure for removal, photocopying and return of such documents.

TITLE Â§ 8.01 CIVIL REMEDIES AND PROCEDUREÂ§ 8.01-285. Definition of certain terms for purposes of this chapter; process, return, statutory agent.For the purposes of this chapter:1. The term “process” shall be deemed to include notice;2. The term “return” shall be deemed to include the term “proof of service”;3. The term “statutory agent” means the Commissioner of the Department of Motor Vehicles and the Secretary of the Commonwealth, and the successors of either, when appointed pursuant to law for the purpose of service of process on the nonresident defined in subdivision 2 of Â§ 8.01-307.(1977, c. 617; 1991, c. 672.)Â§ 8.01-286. Forms of writs. Subject to the provisions of Â§ 8.01-3, the Supreme Court may prescribe the forms of writs, and where no such prescription is made, the forms of writs shall be the same as heretofore used.(Code 1950, Â§ 8-43; 1977, c. 617.)Â§ 8.01-287. How process to be served. Upon commencement of an action, process shall be served in the manner set forth in this chapter and by the Rules of the Supreme Court.(Code 1950, Â§ 8-56; 1952, c. 77; 1954, c. 543; 1977, c. 617.)Â§ 8.01-288. Process received in time good though neither served nor accepted. Process received in time good though neither served nor accepted Except for process commencing actions for divorce or annulment of marriage or other actions wherein service of process is specifically prescribed by statute, process which has reached the person to whom it is directed within the time prescribed by law, if any, shall be sufficient although not served or accepted as provided in this chapter. (Code 1950, Â§ 8-53; 1977, c. 617; 1987, c. 594; 1988, c. 583.)Â§ 8.01-289. No service of process on Sunday; exceptions. No civil process shall be served on Sunday, except in cases of persons escaping out of custody, or where it is otherwise expressly provided by law.Â§ 8.01-290. Plaintiffs required to furnish full name and last known address of defendants, etc. Upon the commencement of every action, the plaintiff shall furnish in writing to the clerk or other issuing officer the full name and last known address of each defendant and if unable to furnish such name and address, he shall furnish such salient facts as are calculated to identify with reasonable certainty such defendant. The clerk or other official whose function it is to issue any such process shall note in the record or in the papers the address or other identifying facts furnished. Failure to comply with the requirements of this section shall not affect the validity of any judgment.(Code 1950, Â§ 8-46.1; 1962, c. 10; 1977, c. 617.)Â§ 8.01-291. Copies to be made. The clerk issuing any such process unless otherwise directed shall deliver or transmit therewith as many copies thereof as there are persons named therein on whom it is to be served.(Code 1950, Â§ 8-57; 1977, c. 617.)Â§ 8.01-292. To whom process directed and where executed. – Process from any court, whether original, mesne, or final, may be directed to the sheriff of, and may be executed in, any county, city, or town in the Commonwealth.(Code 1950, Â§ 8-44; 1954, c. 333; 1977, c. 617.)Â§ 8.01-293. Who to serve process.A. The following persons are authorized to serve process:1. The sheriff within such territorial bounds as described in Â§ 8.01-295; or2. Any person of age eighteen years or older and who is not a party or otherwise interested in the subject matter in controversy. Whenever in this Code the term “officer” or “sheriff” is used to refer to persons authorized to make, return or do any other act relating to service of process, such term shall be deemed to refer to any person authorized by this section to serve process.B. Notwithstanding any other provision of law (i) only a sheriff may execute an order or writ of possession for personal, real or mixed property, including an order or writ of possession arising out of an action in unlawful entry and detainer or ejectment; (ii) any sheriff or law-enforcement officer as defined in Â§ 9-169 of the Code of Virginia may serve any capias or criminal show cause order; and (iii) only a sheriff, the high constable for the City of Norfolk or Virginia Beach or a treasurer may levy upon property.(Code 1950, Â§Â§ 8-52, 8-54; 1954, c. 543; 1960 c. 16, 1968, c. 484, 1977, c. 617, 1981, c. 110, 1986, c. 275; 1996, cc. 501, 608: 1997, c. 820.)Case Note: Where nothing in the record established that process server was qualified to serve process under Virginia’s procedural requirements, service of process was invalid, and the court did not acquire personal jurisdiction over defendant. Harrel v. Preston, 15 Va.App. 202, 421 S.E.2d 676 (1992).Â§ 8.01-294. Sheriff to get from clerk’s office process and other papers; return of papers. Every sheriff who attends a court shall, every day when the clerk’s office is open for business, go to such office and receive all process, and other papers to be served by him, and give receipts therefor, unless he has received notice from a regular employee of the clerk’s office that there are no such papers requiring service and shall return all papers within seventy-two hours of service, except when such returns would be due on a Saturday, Sunday, or legal holiday. In such case, the return is due on the next day following such Saturday, Sunday, or legal holiday.(Code 1950, Â§ 8-49; 1954, c. 545; 1977, c. 617; 1978, c. 831.)Â§ 8.01-295. Territorial limits within which sheriff may serve process in his official capacity; process appearing to be duly served. The sheriff may execute such process throughout the political subdivision in which he serves and in any contiguous county or city. If the process appears to be duly served, and is good in other respects, it shall be deemed valid although not directed to an officer, or if directed to any officer, though executed by some other person. This section shall not be construed to require the sheriff to serve such process in any jurisdiction other than in his own.(Code 1950, Â§ 8-50; 1977, c. 617; 1982, c. 674.)Â§ 8.01-296. Manner of serving process upon natural persons.In any action at law or in equity or any other civil proceeding in any court, process, for which no particular mode of service is prescribed, may be served upon natural persons as follows:1. By delivering a copy thereof in writing to the party in person; or2. By substituted service in the following manner:a. If the party to be served is not found at his usual place of abode, by delivering a copy of such process and giving information of its purport to any person found there, who is a member of his family, other than a temporary sojourner or guest, and who is of the age of sixteen years or older; orb. If such service cannot be effected under subdivision 2 a, then by posting a copy of such process at the front door or at such other door as appears to be the main entrance of such place of abode, provided that not less than ten days before judgment by default may be entered, the party causing service or his attorney or agent mails to the party served a copy of such process and thereafter files in the office of the clerk of the court a certificate of such mailing. In any civil action brought in a general district court, the mailing of the application for a warrant in debt or affidavit for summons in unlawful detainer or other civil pleading or a copy of such pleading, whether yet issued by the court or not, which contains the date, time and place of the return, prior to or after filing such pleading in the general district court, shall satisfy the mailing requirements of this section. In any civil action brought in a circuit court, the mailing of a copy of the pleadings with a notice that the proceedings are pending in the court indicated and that upon the expiration of ten days after the giving of the notice and the expiration of the statutory period within which to respond, without further notice, the entry of a judgment by default as prayed for in the pleadings may be requested, shall satisfy the mailing requirements of this section and any notice requirement of the Rules of Court. Any judgment by default entered after July 1, 1989, upon posted service in which proceedings a copy of the pleadings was mailed as provided for in this section prior to July 1, 1989, is validated.c. The person executing such service shall note the manner and the date of such service on the original and the copy of the process so delivered or posted under subdivision 2 and shall effect the return of process as provided in Â§Â§ 8.01-294 and 8.01-325.3. If service cannot be effected under subdivisions 1 and 2 of this section, then by order of publication in appropriate cases under the provisions of Â§Â§ 8.01-316 through 8.01-320.(Code 1950, Â§ 8-51; 1954, c. 333; 1977, c. 617; 1989, cc. 518, 524; 1990, cc. 729, 767; 1996, c. 538.)Â§ 8.01-297. Process on convict defendant. In all actions against one who has been convicted of a felony and is confined in a local or regional jail or State correctional institution, process shall be served on such convict and, subject to Â§ 8.01-9, a guardian ad litem shall be appointed for him. Such service may be effected by delivery to the officer in charge of such jail or institution whose duty it shall be to deliver forthwith such process to the convict.(Code 1950, Â§ 8-55; 1954, c. 543; 1977, c. 617.)Â§ 8.01-299. How process served on domestic corporations generally. Except as prescribed in Â§ 8.01-300 as to municipal and quasi-governmental corporations, process may be served on a corporation created by the laws of this State as follows:1. By personal service on any officer, director, or registered agent of such corporation; or2. By substituted service on stock corporations in accordance with Â§ 13.1-637 and on nonstock corporations in accordance with Â§ 13.1-836.(Code 1950, Â§ 8-59; 1954, c. 23; 1956, c. 432; 1958, c. 13; 1976, c. 395; 1977, c. 617; 1991, c. 672.)Â§ 8.01-300. How process served on municipal and county governments and on quasi-governmental entities. Notwithstanding the provisions of Â§ 8.01-299 for service of process on other domestic corporations, process shall be served on municipal and county governments and quasi-governmental bodies or agencies in the following manner:1. If the case be against a city or a town, on its city or town attorney in those cities or towns which have created such a position, otherwise on its mayor manager or trustee of such town or city; and2. If the case be against a county, on its county attorney in those counties which have created such a position, otherwise on its attorney for the Commonwealth; and3. If the case be against any political subdivision, or any other public governmental entity created by the laws of the Commonwealth and subject to suit as an entity separate from the Commonwealth, then on the director, commissioner, chief administrative officer, attorney, or any member of the governing body of such entity; and4. If the case be against a supervisor, county officer, employee or agent of the county board, arising out of official actions of such supervisor, officer, employee or agent, then, in addition to the person named defendant in the case, on each supervisor and the county attorney, if the county has a county attorney, and if there be no county attorney, on the clerk of the county board.Service under this section may be made by leaving a copy with the person in charge of the office of any officer designated in subdivisions 1 through 4.(Code 1950, Â§ 8-59; 1954, c. 23; 1956, c. 432; 1958, c. 13; 1976, c. 395; 1977, c. 617; 1980, c. 732; 1985, c. 416.)Â§ 8.01-301. How process served on foreign corporations generally. Service of process on a foreign corporation may be effected in the following manner:1. By personal service on any officer, director or on the registered agent of a foreign corporation which is authorized to do business in the Commonwealth, and by personal service on any agent of a foreign corporation transacting business in the Commonwealth without such authorization, wherever any such officer, director, or agents be found within the Commonwealth;2. By substituted service on a foreign corporation in accordance with Â§Â§ 13.1-766 and 13.1-928, if such corporation is authorized to transact business or affairs within the Commonwealth;3. By substituted service on a foreign corporation in accordance with Â§ 8.01-329 where jurisdiction is authorized under Â§ 8.01-328.1, regardless of whether such foreign corporation is authorized to transact business within the Commonwealth; or4. By order of publication in accordance with Â§Â§ 8.01-316 and 8.01-317 where jurisdiction in rem or quasi in rem is authorized, regardless of whether the foreign corporation so served is authorized to transact business within the Commonwealth.(Code 1950, Â§ 8-60; 1977, c. 617; 1991, c. 672.)Â§ 8.01-302. Service of certain process on foreign or domestic corporations. In addition to other provisions of this chapter for service on corporations, process in attachment or garnishment proceedings, and notice by a creditor of judgment obtained and execution thereon issued in his favor, may be served on any agent of a foreign or domestic corporation wherever such agent may be found within the Commonwealth. Service so made shall constitute sufficient service upon such corporation; provided that notice of judgment obtained and execution issued shall comply in all respects to the provisions of Â§Â§ 8.01-502, 8.01-503 and 8.01-504.(Code 1950, Â§ 8-63; 1977, c. 617.)Â§ 8.01-303. On whom process served when corporation operated by trustee or receiver. When any corporation is operated by a trustee or by a receiver appointed by any court, in any action against such corporation, process may be served on its trustee or receiver; and if there be more than one such trustee or receiver, then service may be on any one of them. In the event that no service of process may be had on any such trustee or receiver, then process may be served by any other mode of service upon corporations authorized by this chapter.(Code 1950, Â§ 8-64; 1977, c. 617.)Â§ 8.01-304. How process served on copartner or partnership. Process against a copartner or partnership may be served upon a general partner, and it shall be deemed service upon the partnership and upon each partner individually named in the action, provided the person served is not a plaintiff in the suit and provided the matter in suit is a partnership matter. Provided further that process may be served upon a limited partner in any proceeding to enforce a limited partner’s liability to the partnership. (Code 1950, Â§ 8-59.1; 1950, p. 455; 1977, c. 617.)Â§ 8.01-305. Process against unincorporated associations or orders, or unincorporated common carriers. Process against an unincorporated (i) association, (ii) order, or (iii) common carrier, may be served on any officer, trustee, director, staff member or other agent.(Code 1950, Â§Â§ 8-66, 8-67; 1962, c. 250; 1977, c. 617.)Â§ 8.01-306. Process against unincorporated associations or orders, or unincorporated common carriers; principal office outside Virginia and business transactions in Virginia. If an unincorporated (i) association, (ii) order, or (iii) common carrier has its principal office outside Virginia and transacts business or affairs in the Commonwealth, process may be served on any officer, trustee, director, staff member, or agent of such association, order, or carrier in the city or county in which he may be found or on the clerk of the State Corporation Commission, who shall be deemed by virtue of such transaction of business or affairs in the Commonwealth to have been appointed statutory agent of such association, order, or carrier upon whom may be made service of process in accordance with Â§ 12.1-19.1. Service, when duly made, shall constitute sufficient foundation for a personal judgment against such association, order or carrier. If service may not be had as aforesaid, then on affidavit of that fact an order of publication may be awarded as provided by Â§Â§ 8.01-316 and 8.01-317.(Code 1950, Â§ 8-66.1; 1962, c. 250; 1977, c. 617; 1991, c. 672.)Â§ 8.01-307. Definition of terms “motor vehicle” and “nonresident” in motor vehicle and aircraft accident cases. For the purpose of Â§Â§ 8.01-308 through 8.01-313: (Code 1950, Â§ 8-66.1; 1962, c. 250; 1977, c. 617; 1991, c. 672.)1. The term “motor vehicle” shall mean every vehicle which is self-propelled or designed for self-propulsion and every vehicle drawn by or designed to be drawn by a motor vehicle and includes every device in, upon, or by which any person or property is or can be transported or drawn upon a highway, except devices moved by human or animal power and devices used exclusively upon stationary rails or tracks.2. The term “nonresident” includes any person who, though a resident of the Commonwealth when the accident or collision specified in Â§ 8.01-308 or Â§ 8.01-309 occurred, has been continuously outside the Commonwealth for at least sixty days next preceding the date when process is left with the Commissioner of the Department of Motor Vehicles or the Secretary of the Commonwealth and includes any person against whom an order of publication may be issued under the provisions of Â§ 8.01-316.(Code 1950, Â§ 8-67.1; 1950, p. 620; 1952, c. 681; 1956, c. 64; 1966, c. 518; 1977, c. 617.)Â§ 8.01-307. Definition of terms “motor vehicle” and “nonresident” in motor vehicle and aircraft accident cases. For the purpose of Â§Â§ 8.01-308 through 8.01-313: (Code 1950, Â§ 8-66.1; 1962, c. 250; 1977, c. 617; 1991, c. 672.)Â§ 8.01-308. Service on Commissioner of the Department of Motor Vehicles as agent for nonresident motor vehicle operator. Any operation in the Commonwealth of a motor vehicle by a nonresident, including those nonresidents defined in subdivision 2 of Â§ 8.01-307, either in person or by an agent or employee, shall be deemed equivalent to an appointment by such nonresident of the Commissioner of the Department of Motor Vehicles, and his successors in office, to be the attorney or statutory agent of such nonresident for the purpose of service of process in any action against him growing out of any accident or collision in which such nonresident, his agent, or his employee may be involved while operating motor vehicles in this Commonwealth. Acceptance by a nonresident of the rights and privileges conferred by Article 5 (Â§ 46.2-655 et seq.) of Chapter 6 of Title 46.2 shall have the same effect under this section as the operation of such motor vehicle, by such nonresident, his agent, or his employee.(Code 1950, Â§ 8-67.1; 1950, p. 620; 1952, c. 681; 1956, c. 64; 1966, c. 518; 1977, c. 617.)Â§ 8.01-309. Service on Secretary of Commonwealth as agent of nonresident operator or owner of aircraft. Any nonresident owner or operator of any aircraft that is operated over and above the land and waters of the Commonwealth or uses aviation facilities within the Commonwealth, shall by such operation and use appoint the Secretary of the Commonwealth as his statutory agent for the service of process in any action against him growing out of any accident or collision occurring within or above the Commonwealth in which such aircraft is involved.(Code 1950, Â§ 8-67.4; 1952, c. 384; 1954, c. 333; 1977, c. 617.)Â§ 8.01-310. How service made on Commissioner and Secretary; appointment binding.A. Service of process on either the Commissioner of the Department of Motor Vehicles as authorized under Â§ 8.01-308 or on the Secretary of the Commonwealth as authorized under Â§ 8.01-309, shall be made by leaving a copy of such process together with the fee for service of process on parties, in the amount prescribed in Â§ 2.1-71.2, for each party to be thus served, in the hands, or in the office, of such Commissioner or such Secretary and such service shall be sufficient upon the nonresident. All fees collected by the Commissioner pursuant to the provisions of this section shall be paid into the state treasury and shall be set aside as a special fund to be used to meet the expenses of the Department of Motor Vehicles.B. Appointment of the Commissioner or Secretary as attorney or agent for the service of process on a nonresident under Â§ 8.01-308 or Â§ 8.01-309 shall be irrevocable and binding upon the executor or other personal representative of such nonresident:1. Where a nonresident has died before the commencement of an action against him regarding an accident or collision under Â§ 8.01-308 or Â§ 8.01-309 shall be irrevocable and binding upon the executor or other personal representative of such nonresident; or2. Where a nonresident dies after the commencement of an action against him regarding an accident or collision under Â§ 8.01-308 or Â§ 8.01-309, the action shall continue and shall be irrevocable and binding upon his executor, administrator, or other personal representative with such additional notice of the pendency of the action as the court deems proper.(Code 1950, Â§Â§ 8-67.2, 8-67.4; 1952, c. 384; 1954, c. 333; 1970, c. 680; 1972, c. 408; 1976, c. 26; 1977, c. 617; 1987, c. 696; 1992, c. 459; 2000, c. 579.)Â§ 8.01-311. Continuance of action where service made on Commissioner or Secretary. The court, in which an action is pending against a nonresident growing out of an accident or collision as specified in Â§Â§ 8.01-308 and 8.01-309, may order such continuances as necessary to afford such nonresident reasonable opportunity to defend the action.(Code 1950, Â§ 8-67.3; 1954, c. 547; 1977, c. 617.)Â§ 8.01-312. Effect of service on statutory agent; duties of such agent.A. Service of process on the statutory agent shall have the same legal force and validity as if served within the Commonwealth personally upon the person for whom it is intended. Provided that such agent shall forthwith send by registered or certified mail, with return receipt requested, a copy of the process to the person named therein and for whom the statutory agent is receiving the process. Provided further that the statutory agent shall file an affidavit of compliance with this section with the papers in the action; this filing shall be made in the office of the clerk of the court in which the action is pending.B. Unless otherwise provided by Â§ 8.01-313 and subject to the provisions of Â§ 8.01-316, the address for the mailing of the process required by this section shall be that as provided by the party seeking service.(Code 1950, Â§ 8-67.2; 1954, c. 333; 1970, c. 680; 1972, c. 408; 1976, c. 26; 1977, c. 617.)Â§ 8.01-313. Specific addresses for mailing by statutory agent.A. For the statutory agent appointed pursuant to Â§Â§ 8.01-308 and 8.01-309, the address for the mailing of the process as required by Â§ 8.01-312 shall be the last known address of the nonresident or, where appropriate under subdivision 1 or 2 of Â§ 8.01-310 B, of the executor, administrator, or other personal representative of the nonresident. However, upon the filing of an affidavit by the plaintiff that he does not know and is unable with due diligence to ascertain any post-office address of such nonresident, service of process on the statutory agent shall be sufficient without the mailing otherwise required by this section. Provided further that:1. In the case of a nonresident defendant licensed by the Commonwealth to operate a motor vehicle, the last address reported by such defendant to the Department of Motor Vehicles as his address on an application for or renewal of a driver’s license shall be deemed to be the address of the defendant for the purpose of the mailing required by this section if no other address is known, and, in any case in which the affidavit provided for in Â§ 8.01-316 of this chapter is filed, such a defendant, by so notifying the Department of such an address, and by failing to notify the Department of any change therein, shall be deemed to have appointed the Commissioner of the Department of Motor Vehicles his statutory agent for service of process in an action arising out of operation of a motor vehicle by him in the Commonwealth, and to have accepted as valid service such mailing to such address; or2. In the case of a nonresident defendant not licensed by the Commonwealth to operate a motor vehicle, the address shown on the copy of the report of accident required by Â§ 46.2-372 filed by or for him with the Department, and on file at the office of the Department, or the address reported by such a defendant to any state or local police officer, or sheriff investigating the accident sued on, if no other address is known, shall be conclusively presumed to be a valid address of such defendant for the purpose of the mailing provided for in this section, and his so reporting of an incorrect address, or his moving from the address so reported without making provision for forwarding to him of mail directed thereto, shall be deemed to be a waiver of notice and a consent to and acceptance of service of process served upon the Commissioner of the Department of Motor Vehicles as provided in this section.B. For the statutory agent appointed pursuant to Â§ 26-59, the address for the mailing of process as required by Â§ 8.01-312 shall be the address of the fiduciary’s statutory agent as contained in the written consent most recently filed with the clerk of the circuit court wherein the qualification of such fiduciary was had or, in the event of the death, removal, resignation or absence from the Commonwealth of such statutory agent, or in the event that such statutory agent cannot with due diligence be found at such address, the address of the clerk of such circuit court.(Code 1950, Â§ 8-67.2; 1954, c. 333; 1970, c. 680; 1972, c. 408; 1976, c. 26; 1977, c. 617; 1983, c. 467; 1984, c. 780; 1991, c. 672.)
Â§ 8.01-314. Service on attorney after entry of general appearance by such attorney. When an attorney authorized to practice law in this Commonwealth has entered a general appearance for any party, any process, order or other legal papers to be used in the proceeding may be served on such attorney of record. Such service shall have the same effect as if service had been made upon such party personally; provided, however, that in any proceeding in which a final decree or order has been entered, service on an attorney as provided herein shall not be sufficient to constitute personal jurisdiction over a party in any proceeding citing that party for contempt, either civil or criminal, unless personal service is also made on the party. Provided, further, that if such attorney objects by motion within five days after such legal paper has been so served upon him, the court shall enter an order in the proceeding directing the manner of service of such legal paper.(Code 1950, Â§ 8-69; 1977, c. 617; 1981, c. 495.)Â§ 8.01-315. Notice to be mailed defendant when service accepted by another. No judgment shall be rendered upon, or by virtue of, any instrument in writing authorizing the acceptance of service of process by another on behalf of any person who is obligated upon such instrument, when such service is accepted as therein authorized, unless the person accepting service shall have made and filed with the court an affidavit showing that he mailed or caused to be mailed to the defendant at his last known post-office address at least ten days before such judgment is to be rendered a notice stating the time when and place where the entry of such judgment would be requested.(Code 1950, Â§ 8-70; 1977, c. 617.)Â§ 8.01-316. Service by publication; when available.A. Except in condemnation actions, an order of publication may be entered against a defendant in the following manner:1. An affidavit by a party seeking service stating one or more of the following grounds:a. That the party to be served is (i) a foreign corporation, (ii) a foreign unincorporated association, order, or a foreign unincorporated common carrier, or (iii) a nonresident individual, other than a nonresident individual fiduciary who has appointed a statutory agent under Â§ 26-59, orb. That diligence has been used without effect to ascertain the location of the party to be served; or c. That the last known residence of the party to be served was in the county or city in which service is sought and that a return has been filed by the sheriff that the process has been in his hands for twenty-one days and that he has been unable to make service; or2. In any action, when (i) a pleading states that there are or may be persons, whose names are unknown, interested in the subject to be divided or disposed of; (ii) briefly describes the nature of such interest; and (iii) makes such persons defendants by the general description of “parties unknown”; or3. In any action, when (i) the number of defendants upon whom process has been served exceeds ten and (ii) it appears by a pleading, or exhibit filed, that such defendants represent like interests with the parties not served with process.Under subdivisions 1 and 2 of this section, the order of publication may be entered by the clerk of the court. Under this subdivision such order may be entered only by the court.Every affidavit for an order of publication shall state the last known post office address of the party against whom publication is asked, or if such address is unknown, the affidavit shall state that fact.B. The cost of such publication shall be paid initially by the party seeking service; however, such costs ultimately may be recoverable pursuant to Â§ 17.1-601. (Code 1950, Â§ 8-71; 1952, c. 522; 1977, c. 617; 1982, c. 384; 1983, c. 467; 1996, c. 352; 1999, c. 353.)Â§ 8.01-317. What order of publication to state; how published; when publication in newspaper dispensed with. Except in condemnation actions, every order of publication shall give the abbreviated style of the suit, state briefly its object, and require the defendants, or unknown parties, against whom it is entered to appear and protect their interests on or before the date stated in the order which shall be no sooner than fifty days after entry of the order of publication. Such order of publication shall be published once each week for four successive weeks in such newspaper as the court may prescribe, or, if none be so prescribed, as the clerk may direct, and shall be posted at the front door of the courthouse wherein the court is held also a copy of such order of publication shall be mailed to each of the defendants at the post office address given in the affidavit required by Â§ 8.01-316. The clerk shall cause copies of the order to be so posted, mailed, and transmitted to the designated newspaper within twenty days after the entry of the order of publication. Upon completion of such publication, the clerk shall file a certificate in the papers of the case that the requirements of this section have been complied with. Provided, the court may, in any case where deemed proper dispense with such publication in a newspaper. The cost of such publication shall be paid by the petitioner or applicant.(Code 1950, Â§ 8-72; 1977, c. 617; 1982, c. 384; 1996, cc. 352, 710.)Â§ 8.01-318. Within what time after publication case tried or heard; no subsequent publication required. If after an order of publication has been executed, the defendants or unknown parties against whom it is entered shall not appear on or before the date specified in such order, the case may be tried or heard as to them. When the provisions of Â§ 8.01-317, or, if applicable, the provisions of Â§ 8.01-321, have been complied with, no other publication or notice shall thereafter be required in any proceeding in court, or before a commissioner, or for the purpose of taking depositions, unless specifically ordered by the court as to such defendants or unknown parties.(Code 1950, Â§ 8-73; 1968, c. 456; 1977, c. 617.)Â§ 8.01-319. Publication of interim notice.A. In any case in which a nonresident party or party originally served by publication has been served as provided by law, and notice of further proceedings in the case is required but no method of service thereof is prescribed either by statute or by order or rule of court, such notice may be served by publication thereof once each week for two successive weeks in a newspaper published or circulated in the city or county in which the original proceedings are pending. If the original proceedings were instituted by order of publication, then the publication of such notice of additional or further proceedings shall be made in the same newspaper. A party, who appears pro se in an action, shall file with the clerk of the court in which the action is pending a written statement of his place of residence and mailing address, and shall inform the clerk in writing of any changes of residence and mailing address during the pendency of the action. The clerk and all parties to the action may rely on the last written statement filed as aforesaid. The court in which the action is pending may dispense with such notice for failure of the party to file the statement herein provided for or may require notice to be given in such manner as the court may determine.B. Notwithstanding any provision to the contrary in paragraph A hereof, depositions may be taken, testimony heard and orders and decrees entered without an order of publication, when the defendant has been legally served with or has accepted service of process to commence a suit for divorce or for annulling or affirming a marriage, and he or she or the plaintiff:1. Shall thereafter become a nonresident; or2. Shall remove from the county or city in which the suit is pending, if a resident thereof, or in which he or she resided at the time of the institution of the suit, or was served with process, without having filed with the clerk of the court where the suit is pending a written statement of his or her intended future place of residence, and a like statement of subsequent changes of residence; or3. When after such written statement has been filed with the clerk, notice shall have been served upon him or her at the last place of residence given in the written statement as provided by law; or4. Could not be found by the sheriff of the county or city for the service of the notice, and the party sending the service makes affidavit that he has used due diligence to find the adverse party without success. If such absent party has an attorney of record in such suit, notice shall be served on such attorney, as provided by Â§ 8.01-314.C. This section shall not apply to orders of publication in condemnation actions.(Code 1950, Â§ 8-76; 1950, p. 68; 1954, c. 333; 1960, c. 16; 1970, cc. 241, 279; 1977, c. 617; 1978, c. 676; 1979, c. 464; 1982, c. 384.)Â§ 8.01-320. Personal service outside of Virginia.A. Personal service of a process on a nonresident person outside the Commonwealth may be made by: (i) any person authorized to serve process in the jurisdiction where the party to be served is located; or (ii) any person eighteen years of age or older who is not a party or otherwise interested in the subject matter of the controversy and notwithstanding any other provision of law to the contrary, such person need not be authorized by the circuit court to serve process which commences divorce or annulment actions. When the court can exercise jurisdiction over the nonresident pursuant to Â§ 8.01-328.1, such service shall have the same effect as personal service on the nonresident within Virginia. Such service when no jurisdiction can be exercised pursuant to Â§ 8.01-328.1, or service in accordance with the provisions of subdivision 2 a of Â§ 8.01-296 shall have the same effect, and no other, as an order of publication duly executed, or the publication of a copy of process under this chapter, as the case may be; however, depositions may be taken at any time after twenty-one days’ notice of the taking of the depositions has been personally served. The person so served shall be in default upon his failure to file a pleading in response to original process within twenty-one days after such service. If no responsive pleading is filed within the time allowed by law, the case may proceed without service of any additional pleadings, including the notice of the taking of depositions.B. Any personal service of process outside of this Commonwealth executed in such manner as is provided for in this section prior or subsequent to October 1, 1977, in a divorce or annulment action is hereby validated. Personal service of process outside this Commonwealth in a divorce or annulment action may be executed as provided in this section.(Code 1950, Â§ 8-74; 1954, c. 333; 1970, c. 552; 1977, c. 617; 1978, c. 90; 1981, c. 6; 1983, c. 402; 1984, c. 18; 1985, c. 177; 1986, c. 263; 1987, c. 594; 1997, c. 754.)Â§ 8.01-322. Within what time case reheard on petition of party served by publication, and any injustice corrected. If a party against whom service by publication is had under this chapter did not appear before the date of judgment against him, then such party or his representative may petition to have the case reheard, may plead or answer, and may have any injustice in the proceeding corrected within the following time and not after:1. Within two years after the rendition of such judgment, decree or order; but2. If the party has been served with a copy of such judgment, decree, or order more than a year before the end of such two-year period, then within one year of such service.For the purpose of subdivision 2 of this section, service may be made in any manner provided in this chapter except by order of publication, but including personal or substituted service on the party to be served, and personal service out of the Commonwealth by any person of eighteen years or older and who is not a party or otherwise interested in the subject matter in controversy.(Code 1950, Â§ 8-78; 1977, c. 617.)Â§ 8.01-325. Return by person serving process. Unless otherwise directed by the court, the person serving process shall make return thereof to the clerk’s office within seventy-two hours of service, except when such return would be due on a Saturday, Sunday, or legal holiday. In such case, the return is due on the next day following such Saturday, Sunday, or legal holiday. The process shall state thereon the date and manner of service and the name of the party served. Proof of service shall be in the following manner:1. If service by sheriff, the form of the return of such sheriff as provided by the Rules of the Supreme Court; or2. If service by any other person qualified under Â§ 8.01-293, whether service made in or out of the Commonwealth, his affidavit of such qualifications; the date and manner of service and the name of the party served; and stamped, typed, or printed on the return of process, an annotation that the service was by a private server, and the name, address, and telephone number of the server; or3. In case of service by publication, the affidavit of the publisher or his agent giving the dates of publication and an accompanying copy of the published order.(Code 1950, Â§Â§ 8-52, 8-329; 1977, c. 617; 1996, c. 538.)Case Note:Where nothing in the record established that process server was qualified to serve process under Virginia’s procedural requirements, service of process was invalid, and the court did not acquire personal jurisdiction over defendant. Harrel v. Preston, 15 Va.App. 202, 421 S.E.2d 676 (1992).Â§ 8.01-326. Return as proof of service. No return shall be conclusive proof as to service of process. The return of a sheriff shall be prima facie evidence of the facts therein stated, and the return of a qualified individual under subdivision 2 of Â§ 8.01-293 shall be evidence of the facts stated therein.(1977, c. 627.)Â§ 8.01-326.1. Service of process or notice on statutory agent; copy to be sent to defendant and certificate filed with court; effective date of service. Any statutory agent who has been served with process or notice shall forthwith mail a copy of such process or notice to the person or persons to be served at the last known post office address of such person and file a certificate of compliance with the papers in the action. Service of process or notice on a statutory agent shall be effective as of the date the certificate of compliance is filed with the clerk of the court in which the action or suit is pending.(1990, c. 741.)Â§ 8.01-327. Acceptance of service of process. Service of process may be accepted by the person for whom it is intended by signing the proof of service and indicating the jurisdiction and state in which it was accepted. However, service of process in divorce or annulment actions may be accepted only as provided in Â§ 20-99.1:1.(1977, c. 617; 1987, c. 594; 1988, cc. 583, 642.)Â§ 8.01-329. Service of process or notice; service on Secretary of Commonwealth.A. When the exercise of personal jurisdiction is authorized by this chapter, service of process or notice may be made in the same manner as is provided for in Chapter 8 (Â§ 8.01-285 et seq.) of this title in any other case in which personal jurisdiction is exercised over such a party, or process or notice may be served on any agent of such person in the county or city in this Commonwealth in which that agent resides or on the Secretary of the Commonwealth of Virginia, hereinafter referred to in this section as the “Secretary,” who, for this purpose, shall be deemed to be the statutory agent of such person.B. When service is to be made on the Secretary, the party or his agent or attorney seeking service shall file an affidavit with the court, stating either (i) that the person to be served is a nonresident or (ii) that, after exercising due diligence, the party seeking service has been unable to locate the person to be served. In either case, such affidavit shall set forth the last known address of the person to be served. When the person to be served is a resident, the signature of an attorney, party or agent of the person seeking service on such affidavit shall constitute a certificate by him that process has been delivered to the sheriff or to a disinterested person as permitted by Â§ 8.01-293 for execution and, if the sheriff or disinterested person was unable to execute such service, that the person seeking service has made a bona fide attempt to determine the actual place of abode or location of the person to be served.C. Service of such process or notice on the Secretary shall be made by the plaintiff’s, his agent’s or the sheriff’s leaving a copy of the process or notice together with a copy of the affidavit called for in subsection B hereof and the fee prescribed in Â§ 2.1-71.2 in the office of the Secretary in the City of Richmond, Virginia. Service of process or notice on the Secretary may be made by mail if such service otherwise meets the requirements of this section. Such service shall be sufficient upon the person to be served, provided that notice of such service, a copy of the process or notice, and a copy of the affidavit are forthwith mailed by certified mail, return receipt requested, by the Secretary to the person or persons to be served at the last known post-office address of such person, and a certificate of compliance herewith by the Secretary or someone designated by him for that purpose and having knowledge of such compliance, shall be forthwith filed with the papers in the action. Service of process or notice on the Secretary shall be effective on the date the certificate of compliance is filed with the court in which the action is pending.D. Service of process in actions brought on a warrant or motion for judgment pursuant to Â§ 16.1-79 or Â§ 16.1-81 shall be void and of no effect when such service of process is received by the Secretary within ten days of any return day set by the warrant. In such cases, the Secretary shall return the process or notice, the copy of the affidavit, and the prescribed fee to the plaintiff or his agent. A copy of the notice of the rejection shall be sent to the clerk of the court in which the action was filed.E. The Secretary shall maintain a record of each notice of service sent to a person for a period of two years. The record maintained by the Secretary shall include the name of the plaintiff or the person seeking service, the name of the person to be served, the date service was received by the Secretary, the date notice of service was forwarded to the person to be served, and the date the certificate of compliance was sent by the Secretary to the appropriate court. The Secretary shall not be required to maintain any other records pursuant to this section.(Code 1950, Â§ 8-813; 1977, c. 617; 1979, c. 31; 1986, c. 388; 1987, cc. 449, 450, 459; 1990, c. 741; 1998, c. 259.)VA Rules: Rules of Supreme Court of VirginiaRule 3A:12. Subpoena.(a) For Attendance of Witnesses. – A subpoena for the attendance of a witness to testify’ before a court not of record shall be issued by the judge, clerk, magistrate, or Commonwealth’s Attorney. A subpoena for the attendance of a witness to testify before a circuit court or a grand jury shall be issued by the clerk or Commonwealth’s attorney. The subpoena shall (i) be directed to an appropriate officer or officers, (ii) name the witness to be summoned, (iii) state the name of the court and the title, if any, of the proceeding, (iv) command the officer to summon the witness to appear at the time and place specified in the subpoena for the purpose of giving testimony, and (v) state on whose application the subpoena was issued.No subpoena or subpoena duces tecum shall be issued in any criminal case or proceeding, including any proceeding before any grand jury, which subpoena or subpoena duces tecum is (i) directed to a member of the bar of this Commonwealth or any other jurisdiction, and (ii) compels production or testimony concerning any present or former client of the member of the bar, unless the subpoena request has been approved in all specifics, in advance, by a judge of the circuit court wherein the subpoena is requested after reasonable notice to the attorney who is the subject of the proposed subpoena. The proceedings for approval may be conducted in camera, in the judge’s discretion, and the judge may seal such proceedings. Such subpoena request shall be made by the Commonwealth’s attorney for the jurisdiction involved, either on motion of the Commonwealth’s attorney or upon request to the Commonwealth’s attorney by the foreman of any grand jury.(b) For Production of Documentary Evidence and of Objects Before a Circuit Court. – Upon notice to the adverse party and on affidavit by the party applying for the subpoena that the requested writings or objects are material to the proceedings and are in the possession of a person not a party to the action, the judge or the clerk may issue a subpoena duces tecum for the production of writings or objects described in the subpoena. Such subpoena shall command either (1) that the individual to whom it is addressed shall appear in person and with the items described either before the court or the clerk or (2) that such individual shall deliver the items described to the clerk. The subpoena may direct that the writing or object be produced at a time before the trial or before the time when it is to be offered in evidence.Any subpoenaed writings and objects, regardless by whom requested, shall be available for examination and review by all parties and counsel. Subpoenaed writings or objects shall be received by the clerk and shall not be open for examination and review except by the parties and counsel unless otherwise directed by the court. The clerk shall adopt procedures to ensure compliance with this paragraph.Where subpoenaed writings and objects are of such nature or content that disclosure to other parties would be unduly prejudicial, the court, upon written motion and notice to all patties, may grant such relief as it deems appropriate, including limiting disclosure, removal and copying.(c) Service and Return. A subpoena may be executed anywhere in the State by an officer authorized by law to execute the subpoena in the place where it is executed. The officer executing a subpoena shall make return thereof to the court named in the subpoena.(d) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court to which the subpoena is returnable.(e) Recognizance of a Witness. – If it appears that the testimony of a person is material in any criminal proceeding, a judicial officer may require him to give a recognizance for his appearance.(f) Photocopying of Subpoenaed Documents. – Subject to the provisions of subsection (b). removal and photocopying of subpoenaed documents by any party or counsel shall be permitted. The court shall direct a procedure for removal, photocopying and return of such documents.

Topics: Process Service | No Comments »

Washington D.C. Foreclosure Process Server Laws

By admin | April 9, 2010

Rule 4. Summons.

(a) Form. The summons shall be signed by the Clerk, bear the seal of the Court, identify the Court and the parties, be directed to the defendant, and state the name and address of the plaintiff’s attorney or, if unrepresented, of the plaintiff. It shall also state the time within which the defendant must appear and defend, and notify the defendant that failure to do so will result in a judgment by default against the defendant for the relief demanded in the complaint. The Court may allow a summons to be amended. Whenever service is made pursuant to a statute or rule of Court which provides (1) for service of a summons, or notice, or order in lieu of summons upon a party not an inhabitant of or found within the District of Columbia, or (2) for service upon or notice to a party to appear and respond or defend in an action by reason of the attachment or garnishment or similar seizure of the party’s property located within the District of Columbia, the summons, or notice, or order in lieu of summons shall correspond as nearly as may be to that required by the statute or rule.

(b) Issuance. A prepared summons, with copies for each defendant named in the complaint, shall be delivered to the Clerk at the time the complaint is filed. If additional process is required, a prepared summons for such process shall also be delivered to the Clerk. Upon receipt and due notation thereof, the Clerk shall return all but one copy of the summons to the plaintiff or the plaintiff’s agent for service of process in accordance with paragraph (c) of this Rule, recording on all copies the date of such return to the plaintiff or the plaintiff’s agent.

(1) A summons shall be served together with a copy of the complaint and initial order. The plaintiff is responsible for service of a summons, complaint and initial order within the time allowed under subdivision (m) and shall furnish the person effecting service with the necessary copies of the summons, complaint and initial order.

(2) Service may be effected by any person who is not a party and who is at least 18 years of age. At the request of the plaintiff, however, the Court may direct that service be effected by a United States marshal, deputy United States marshal, or other person or officer specially appointed by the Court for that purpose. Such direction shall be made only (a) when service is to be effected on behalf of the United States or an officer or agency thereof, or (b) when the Court issues an order stating that service by a United States marshal or deputy United States marshal or a person specially appointed for that purpose is required in order that service be properly effected in that particular action.

(3) As to any defendant described in subdivisions (e), (f), (h), or (j), service also may be effected by mailing a copy of the summons, complaint and initial order to the person to be served by registered or certified mail, return receipt requested.

(4) As to any defendant described in subdivisions (e), (f), or (h), service may be effected by mailing a copy of the summons, complaint and initial order 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-A and a return envelope, postage prepaid, addressed to the sender. Unless good cause is shown for not doing so, the Court shall order the payment by the party served of the costs incurred in securing an alternative method of service authorized by this Rule if the person served does not complete and return, within 20 days after mailing, the Notice and Acknowledgment of receipt of the summons.

(5) Service of process pursuant to paragraphs (2) or (3) of this subdivision, or acknowledgment of service pursuant to paragraph (4), may, at the plaintiff’s election, be attempted either concurrently or successively.

(d) [Vacant].

(e) Service Upon individuals within the United States. Unless otherwise provided by law, service upon an individual from whom an acknowledgment has not been obtained and filed, other than an infant or an incompetent person, may be effected in any part of the United States:

(1) pursuant to District of Columbia law, or the law of the state or territory in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of that state or territory; or

(2) by delivering a copy of the summons, complaint and initial order to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons, complaint and initial order to an agent authorized by appointment or by law to receive service of process.

(f) Service upon individuals in a foreign country. Unless otherwise provided by applicable law, service upon an individual from whom an acknowledgment has not been obtained and filed, other than an infant or an incompetent person, may be effected in a place not within the United States:

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

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

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

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

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

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

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

(g) Service upon infants and incompetent persons. Service upon an infant or an incompetent person in the United States shall be effected in the manner prescribed by the law of the District of Columbia or the law of the state in which the service is made for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state. Service upon an infant or an incompetent person in a place not within the United States shall be effected in the manner prescribed by paragraph (2)(A) or (2)(B) of subdivision (f) or by such means as the Court may direct.

(h) Service upon corporations and associations. Unless otherwise provided by applicable law, service upon a domestic or foreign corporation or upon a partnership or other unincorporated association that is subject to suit under a common name, and from which an acknowledgment of service has not been obtained and filed, shall be effected:

(1) within the United States in the manner prescribed for individuals by subdivision (e)(1), or by delivering a copy of the summons, complaint and initial order to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant, or

(2) in a place not within the United States in any manner prescribed for individuals by subdivision (f) except personal delivery as provided in paragraph (2)(C)(i) thereof.

(i) Service upon the United States and its agencies, corporations, or officers.

(1) Service upon the United States shall be effected

(A) by delivering a copy of the summons, complaint and initial order to the United States Attorney for the District of Columbia or to an assistant United States Attorney or clerical employee designated by the United States Attorney in a writing filed with the Clerk of the Court, or by sending a copy of the summons, complaint and initial order by registered or certified mail addressed to the civil process clerk at the office of the United States Attorney and

(B) by also sending a copy of the summons, complaint and initial order by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia, and

(C) in any action attacking the validity of an order of an officer or agency of the United States not made a party, by also sending a copy of the summons, complaint and initial order by registered or certified mail to the officer or agency.

(2) Service upon an officer, agency, or corporation of the United States shall be effected by serving the United States in the manner prescribed by paragraph (1) of this subdivision and by also sending a copy of the summons, complaint and initial order by registered or certified mail to the officer, agency or corporation.

(3) The Court shall allow a reasonable time for service of process under this subdivision for the purpose of curing the failure to serve multiple officers, agencies, or corporations of the United States if the plaintiff has effected service on either the United States Attorney or the Attorney General of the United States.

(j) Service upon the District of Columbia, an officer or agency thereof, or upon other government entities subject to suit.

(1) Service shall be made upon the District of Columbia by delivering (pursuant to paragraph (c)(2)) or mailing (pursuant to paragraph (c)(3)) a copy of the summons, complaint and initial order to the Mayor of the District of Columbia (or designee) and the Corporation Counsel of the District of Columbia (or designee). The Mayor and the Corporation Counsel may each designate an employee for receipt of service of process by filing a written notice with the Clerk of the Court. In any action attacking the validity of an order of an officer or agency of the District of Columbia not made a party, a copy of the summons, complaint and initial order also shall be delivered or mailed to such officer or agency. Service upon an officer or agency of the District of Columbia shall be made by delivering (pursuant to paragraph (c)(2)) or mailing (pursuant to paragraph (c)(3)) a copy of the summons, complaint and initial order to the Mayor (or designee), the Corporation Counsel (or designee), and such officer or agency.

(2) Service upon a state, municipal corporation, or other governmental organization subject to suit shall be effected by delivering a copy of the summons, complaint and initial order to its chief executive officer or by serving the summons, complaint and initial order in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant.

(k) Territorial limits of effective service.

(1) Service of a summons, complaint and initial order or filing an acknowledgment of service is effective to establish jurisdiction over the person of a defendant

(A) who could be subjected to the jurisdiction of this Court, or

(B) who is a party joined under Rule 14 or Rule 19 and is served at a place not more than 100 miles from the place of hearing or trial, or

(D) when authorized by a statute of the United States or the of Columbia.

(2) If the exercise of jurisdiction is consistent with the Constitution and applicable law, serving a summons or filing an acknowledgment of service is also effective, with respect to claims arising under such law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state.

(l) Proof of service. If service is not acknowledged, the person effecting service shall make proof of service to the Court. If service is made by a person other than a United States marshal or deputy United States marshal, the person shall make affidavit thereof. The affidavit shall specifically state each of the following:

(1) If service is made by delivery pursuant to paragraph (c)(2) of this Rule, the return of service shall be made under oath (unless service was made by the United States marshal or deputy United States marshal) and shall specifically state the caption and number of the case; the process server’s name, residential or business address, and the fact that he or she is eighteen (18) years of age or older; the time and place at which service was effected; the fact that a summons, a copy of the complaint and the initial order setting the case for an Initial Scheduling Conference were delivered to the person served; and, if service was effected by delivery to a person other than a party named in the summons, then specific facts from which the Court can determine that the person to whom process was delivered meets the appropriate qualifications for receipt of process set out in subdivisions (e) through (j) of this Rule.

(2) If service is made by registered or certified mail under paragraph (c)(3) of this Rule, the return shall be accompanied by the signed receipt attached to an affidavit which shall specifically state the caption and number of the case; the name and address of the person who posted the registered or certified letter; the fact that such letter contained a summons, a copy of the complaint and the initial order setting the case for an Initial Scheduling Conference; and, if the return receipt does not purport to be signed by the party named in the summons, then specific facts from which the Court can determine that the person who signed the receipt meets the appropriate qualifications for receipt of process set out in subdivisions (e) through (j) of this Rule.

Proof of service in a place not within the United States shall, if effected under paragraph (1) of subdivision (f), 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. Failure to make proof of service does not affect the validity of the service. The Court may allow proof of service to be amended.

(m) Time limit for service. Within 60 days of the filing of the complaint, the plaintiff must file either an acknowledgment of service or proof of service of the summons, the complaint and any order directed by the Court to the parties at the time of filing. The acknowledgement or proof shall be filed as to each defendant who has not responded to the complaint. Prior to the expiration of the foregoing time period, a motion may be made to extend the time for service. The motion must set forth in detail the efforts which have been made, and will be made in the future, to obtain service. The Court shall extend the period for such time as may be warranted by circumstances set forth in the motion. Failure to comply with the requirements of this Rule shall result in the dismissal without prejudice of the complaint. The Clerk shall enter the dismissal and shall serve notice thereof on all the parties entitled thereto. This subdivision does not apply to service in a foreign country pursuant to subdivision (f) or (h)(2) or to cases to which Rule 40-III is applicable.

(n) Seizure of property; service of summons not feasible.

(1) If a statute of the District of Columbia so provides, the Court may assert jurisdiction over property. Notice to claimants of the property shall then be sent in the manner provided by the statute or by service of a summons under this rule.

(2) Upon a showing that personal jurisdiction over a defendant cannot be obtained with reasonable efforts by service of summons in any manner authorized by this rule, the Court may assert jurisdiction over any of the defendant’s assets found within the District of Columbia by seizing the assets under the circumstances and in the manner provided by District of Columbia law.

(Amended, May 23, 1975; Feb. 1, 1985; Apr. 2, 1990; Jan. 1, 1991; May 12, 1993, eff. July 1, 1993; May 26, 1995, eff. June 1, 1995; May 26, 1998; amended effective February 16, 2000.)

Rule 5. Service and filing of pleadings and other papers.

(a) Service: When required. Except as otherwise provided in these Rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the Court otherwise orders, every paper relating to discovery required to be served upon a party unless the Court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. Any pleadings asserting new or additional claims for relief against any party in default must be served upon such party in the manner provided for service of summons in Rule 4.

In an action begun by seizure of property, in which no person need be or is named as defendant, any service required to be made prior to the filing of an answer, claim, or appearance shall be made upon the person having custody or possession of the property at the time of its seizure.

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

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

(d) Filing. All papers after the complaint required to be served upon a party, other than those referred to in Rule 12-I(e), shall be filed with the Court either before service or within 5 days after service; however, the clerk shall not accept for filing depositions transcripts, interrogatories, requests for documents, requests for admission, and responses thereto except as set forth in the last sentence of this paragraph. The party serving such a discovery paper or noticing a deposition must, however, file with the Court a CERTIFICATE REGARDING DISCOVERY which shall indicate the title of the discovery paper served and the date on which it was served. The requesting party must retain the original discovery paper, and must also retain personally, or make arrangements for the reporter to retain, in their original and unaltered form, any deposition transcripts which have been made at the party’s request. Such discovery papers and deposition transcripts must be retained until the case is concluded in this Court, the time for noting an appeal or petitioning for a writ of certiorari has expired, and any such appeal or petition has been decided. Discovery papers and deposition transcripts may be filed, without leave of court, if they are appended to a motion or opposition to which they are relevant and may otherwise be filed if so ordered by the Court sua sponte or pursuant to motion.

(e) Filing with the Court defined. The filing of papers with the Court as required by these Rules shall be made by filing them with the Clerk of the Court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the Office of the Clerk. On the date of the filing of any motion, any papers related to a motion (i.e., an opposition to a motion, memorandum of points and authorities, exhibits related thereto or proposed order), the party filing such motion, papers or pretrial statements and other papers described in SCR Civil 16(d) and (e) shall deliver a chambers copy thereof to a depository designated by the Clerk of the Court for receipt of such papers by the assigned judge. Along with the chambers copy of the motion, the moving party must provide the assigned judge with (1) an original proposed order and (2) an addressed envelope or a mailing label for each counsel or unrepresented party to the case. With the chambers copy of any opposition to a motion, the party filing the opposition must provide the assigned judge with an original proposed order. If the original document has been mailed, the chambers copy may be mailed to chambers. No other papers shall be delivered to the judge’s chambers unless the assigned judge so orders.

(Amended, Nov. 16, 1976; June 1, 1982; Apr. 2, 1990; Jan. 1, 1991; Apr. 29, 1992, eff. June 8, 1992; May 12, 1993, eff. July 1, 1993; Feb. 2, 1998, eff. Mar. 1, 1998.)

Rule 5-I. Proof of service.

Proof of service of papers required or permitted to be served (other than those for which a method of proof is prescribed elsewhere in these Rules or by statute) and proof that chambers copies have been supplied to the assigned judge as required by Rule 5(e), shall be filed before action is to be taken thereon. The proof shall show the date and manner of service on the parties and delivery to the judge, and may be by written acknowledgment thereof, by affidavit of the person making service or delivery, by certificate of a member of the Bar of this Court, or by other proof satisfactory to the Court. Failure to make such proof will not affect the validity thereof. The Court may at any time allow the proof to be amended or supplied, unless to do so would result in material prejudice to a party.

(Amended, Apr. 29, 1992, eff. June 8, 1992.)

Rule 5-II. Pleadings and orders affecting estates of veterans.

A copy of any pleading or order affecting the estate of a veteran shall be mailed to the Veterans Administration by the party filing or obtaining the same.

Rule 45. Subpoena.

(a) Form; issuance.

(1) Every subpoena shall

(A) state the name of the Court; and

(B) state the title of the action, and its civil action number and individual calendar number; and

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

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

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

(2) A subpoena for a deposition, production, or inspection shall specify a place for the deposition, production, or inspection which is within the District of Columbia, unless the parties and person subpoenaed otherwise agree or the Court, upon application, fixes another convenient location.

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

(b) Service.

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

(2) Subject to the provisions of clause (ii) of subparagraph (c)(3)(A) of this Rule, a subpoena for a hearing or trial may be served at any place within the District of Columbia, or at any place without the District of Columbia that is within 25 miles of the place of the hearing or trial; a subpoena for a deposition, production, or inspection may be served at any place which is within the District of Columbia or within 25 miles of the District of Columbia. When an applicable statute provides therefor, the Court upon proper application and cause shown may authorize the service of a subpoena at any other place. A subpoena directed to a witness in a foreign country who is a national or resident of the United States shall issue under the circumstances and in the manner and be served as provided in Title 28 U.S.C. Â§ 1783.

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

(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 shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney’s fee.

(2)

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

(B) Subject to paragraph (d)(2) of this Rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the Court. 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 shall quash or modify the subpoena if it

(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 more than 25 miles from the place where that person resides, is employed or regularly transacts business in person, except that, subject to the provisions of clause (c)(3)(B)(iii) of this Rule, such a person may in order to attend trial be commanded to travel from any such place to the place of trial, or

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

(iv) subjects a person to undue burden.

(B) If a subpoena

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

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

(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 25 miles to attend trial, the Court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the Court may order appearance or production only upon specified conditions.

(d) Duties in responding to subpoena.

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

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

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

(Amended, June 1, 1982; Apr. 2, 1990; May 12, 1993, eff. July 1, 1993.)

District of Columbia Code

Â§ 13-303. Service or execution on Sunday. Repealed.

Repealed. [Process may not be served on Sunday.]

Repealed. June 18, 1991, D.C. Law 9-5, Â§ 3(c), 38 DCR 2717; Aug. 17, 1991, D.C. Law 9-39, Â§ 3(c), 38 DCR 4970.

Â§ 13-332. Service on infants; appointment and compensation of guardian and attorney.

(a) When an infant is a party defendant in an action, the summons and complaint shall be served upon him personally and, when he is under 16 years of age, upon the person with whom he resides, if within the District. The infant shall be produced in court unless, for cause shown, the court dispenses with his appearance. The provisions of rules of court regarding guardians ad litem apply, and whenever in the judgment of the court the interests of an infant defendant require it, the court shall assign an attorney to represent the infant whose compensation shall be paid by the plaintiff, or out of the estate of the infant, at the discretion of the court.

(b) An infant who secretes himself or evades service of process may be proceeded against as if he were a nonresident.

(c) Whoever secretes an infant against whom process has issued, so as to prevent service of the process, or prevents his appearance in court, is liable to attachment and punishment as for contempt.

(Dec. 23, 1963, 77 Stat. 513, Pub. L. 88-241, Â§ 1; 1973 Ed., Â§ 13-332.)

Â§ 13-333. Service on incompetent persons. When a person non compos mentis is a party defendant in an action, process shall be served upon him personally, if within the District, and upon his committee, if there is one within the District.

(Dec. 23, 1963, 77 Stat. 513, Pub. L. 88-241, Â§ 1; 1973 Ed., Â§ 13-333.)

Â§ 13-334. Service on foreign corporations.

(a) In an action against a foreign corporation doing business in the District, process may be served on the agent of the corporation or person conducting its business, or, when he is absent and can not be found, by leaving a copy at the principal place of business in the District, or, where there is no such place of business, by leaving a copy at the place of business or residence of the agent in the District, and that service is effectual to bring the corporation before the court.

(b) When a foreign corporation transacts business in the District without having a place of business or resident agent therein, service upon any officer or agent or employee of the corporation in the District is effectual as to actions growing out of contracts entered into or to be performed, in whole or in part, in the District of Columbia or growing out of any tort committed in the District.

(Dec. 23, 1963, 77 Stat. 513, Pub. L. 88-241, Â§ 1; 1973 Ed., Â§ 13-334.)

Â§ 13-335. Service by publication on domestic or foreign corporations. In an action specified by section 13-336, when process can not be served upon a domestic or foreign corporation, the corporation may be proceeded against as a nonresident defendant, by notice by publication.

(Dec. 23, 1963, 77 Stat. 514, Pub. L. 88-241, Â§ 1; 1973 Ed., Â§ 13-335.)

Â§ 13-336. Service by publication on nonresidents, absent defendants, and unknown heirs or devisees.

(a) In actions specified by subsection (b) of this section, publication may be substituted for personal service of process upon a defendant who can not be found and who is shown by affidavit to be a nonresident, or to have been absent from the District for at least six months, or against the unknown heirs or devisees of deceased persons.

(b) This section applies only to:

(1) actions for partition;

(2) actions for divorce or annulment;

(3) actions for child custody under D.C. Code, title 16, chapter 45;

(4) actions by attachment;

(5) actions for foreclosure of mortgages and deeds of trust;

(6) actions for the establishment of title to real estate by possession;

(7) actions for the enforcement of mechanics’ liens, and other liens against real or personal property within the District; and

(8) actions that have for their immediate object the enforcement or establishment of any lawful right, claim, or demand to or against any real or personal property within the jurisdiction of the court.

(Dec. 23, 1963, 77 Stat. 514, Pub. L. 88-241, Â§ 1; 1973 Ed., Â§ 13-336; Mar. 10, 1983, D.C. Law 4-200, Â§ 3, 30 DCR 125.)

Â§ 13-337. Personal service outside District in lieu of publication.

(a) In actions specified by section 13-336, personal service of process may be made on a nonresident defendant out of the District, and the service has the same effect, and no other, as an order of publication duly executed.

(b) The service may be made by any person not a party to or otherwise interested in the subject-matter in controversy. The return shall be made under oath in the District of Columbia, unless the person making the service is a sheriff, deputy sheriff, marshal, or deputy marshal, authorized to serve process where service is made. The return must show the time and place of service and that the defendant so served is a nonresident of the District of Columbia.

(c) The cost and expense of such service of process out of the District shall be borne by the party at whose instance it is made and may not be taxed as part of the costs in the case; but where the service of process is made by an authorized officer of the law specified by this section, the actual and usual cost of the service of process shall be taxed as a part of the costs in the case.

(Dec. 23, 1963, 77 Stat. 514, Pub. L. 88-241, Â§ 1; 1973 Ed., Â§ 13-337.)

Â§ 13-338. Prerequisites for order of publication. An order for the substitution of publication for personal service may not be made until:

(1) a summons for the defendant has been issued and returned “Not to be found,” and

(2) the nonresidence of the defendant or his absence for at least six months is proved by affidavit to the satisfaction of the court.

(Dec. 23, 1963, 77 Stat. 514, Pub. L. 88-241, Â§ 1; 1973 Ed., Â§ 13-338.)

Rule 4. Summons.(a) Form. The summons shall be signed by the Clerk, bear the seal of the Court, identify the Court and the parties, be directed to the defendant, and state the name and address of the plaintiff’s attorney or, if unrepresented, of the plaintiff. It shall also state the time within which the defendant must appear and defend, and notify the defendant that failure to do so will result in a judgment by default against the defendant for the relief demanded in the complaint. The Court may allow a summons to be amended. Whenever service is made pursuant to a statute or rule of Court which provides (1) for service of a summons, or notice, or order in lieu of summons upon a party not an inhabitant of or found within the District of Columbia, or (2) for service upon or notice to a party to appear and respond or defend in an action by reason of the attachment or garnishment or similar seizure of the party’s property located within the District of Columbia, the summons, or notice, or order in lieu of summons shall correspond as nearly as may be to that required by the statute or rule.(b) Issuance. A prepared summons, with copies for each defendant named in the complaint, shall be delivered to the Clerk at the time the complaint is filed. If additional process is required, a prepared summons for such process shall also be delivered to the Clerk. Upon receipt and due notation thereof, the Clerk shall return all but one copy of the summons to the plaintiff or the plaintiff’s agent for service of process in accordance with paragraph (c) of this Rule, recording on all copies the date of such return to the plaintiff or the plaintiff’s agent.(c) Service with complaint; by whom made.(1) A summons shall be served together with a copy of the complaint and initial order. The plaintiff is responsible for service of a summons, complaint and initial order within the time allowed under subdivision (m) and shall furnish the person effecting service with the necessary copies of the summons, complaint and initial order.(2) Service may be effected by any person who is not a party and who is at least 18 years of age. At the request of the plaintiff, however, the Court may direct that service be effected by a United States marshal, deputy United States marshal, or other person or officer specially appointed by the Court for that purpose. Such direction shall be made only (a) when service is to be effected on behalf of the United States or an officer or agency thereof, or (b) when the Court issues an order stating that service by a United States marshal or deputy United States marshal or a person specially appointed for that purpose is required in order that service be properly effected in that particular action.(3) As to any defendant described in subdivisions (e), (f), (h), or (j), service also may be effected by mailing a copy of the summons, complaint and initial order to the person to be served by registered or certified mail, return receipt requested.(4) As to any defendant described in subdivisions (e), (f), or (h), service may be effected by mailing a copy of the summons, complaint and initial order 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-A and a return envelope, postage prepaid, addressed to the sender. Unless good cause is shown for not doing so, the Court shall order the payment by the party served of the costs incurred in securing an alternative method of service authorized by this Rule if the person served does not complete and return, within 20 days after mailing, the Notice and Acknowledgment of receipt of the summons.(5) Service of process pursuant to paragraphs (2) or (3) of this subdivision, or acknowledgment of service pursuant to paragraph (4), may, at the plaintiff’s election, be attempted either concurrently or successively.(d) [Vacant].(e) Service Upon individuals within the United States. Unless otherwise provided by law, service upon an individual from whom an acknowledgment has not been obtained and filed, other than an infant or an incompetent person, may be effected in any part of the United States:(1) pursuant to District of Columbia law, or the law of the state or territory in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of that state or territory; or(2) by delivering a copy of the summons, complaint and initial order to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons, complaint and initial order to an agent authorized by appointment or by law to receive service of process.(f) Service upon individuals in a foreign country. Unless otherwise provided by applicable law, service upon an individual from whom an acknowledgment has not been obtained and filed, other than an infant or an incompetent person, may be effected in a place not within the United States:(1) by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extra-judicial Documents; or(2) if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice:(A) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or(B) as directed by the foreign authority in response to a letter rogatory or letter of request; or(C) unless prohibited by the law of the foreign country, by(i) delivery to the individual personally of a copy of the summons, complaint and initial order; or(ii) any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or(3) by other means not prohibited by international agreement as may be directed by the Court.(g) Service upon infants and incompetent persons. Service upon an infant or an incompetent person in the United States shall be effected in the manner prescribed by the law of the District of Columbia or the law of the state in which the service is made for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state. Service upon an infant or an incompetent person in a place not within the United States shall be effected in the manner prescribed by paragraph (2)(A) or (2)(B) of subdivision (f) or by such means as the Court may direct.(h) Service upon corporations and associations. Unless otherwise provided by applicable law, service upon a domestic or foreign corporation or upon a partnership or other unincorporated association that is subject to suit under a common name, and from which an acknowledgment of service has not been obtained and filed, shall be effected:(1) within the United States in the manner prescribed for individuals by subdivision (e)(1), or by delivering a copy of the summons, complaint and initial order to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant, or(2) in a place not within the United States in any manner prescribed for individuals by subdivision (f) except personal delivery as provided in paragraph (2)(C)(i) thereof.(i) Service upon the United States and its agencies, corporations, or officers.(1) Service upon the United States shall be effected(A) by delivering a copy of the summons, complaint and initial order to the United States Attorney for the District of Columbia or to an assistant United States Attorney or clerical employee designated by the United States Attorney in a writing filed with the Clerk of the Court, or by sending a copy of the summons, complaint and initial order by registered or certified mail addressed to the civil process clerk at the office of the United States Attorney and(B) by also sending a copy of the summons, complaint and initial order by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia, and(C) in any action attacking the validity of an order of an officer or agency of the United States not made a party, by also sending a copy of the summons, complaint and initial order by registered or certified mail to the officer or agency.(2) Service upon an officer, agency, or corporation of the United States shall be effected by serving the United States in the manner prescribed by paragraph (1) of this subdivision and by also sending a copy of the summons, complaint and initial order by registered or certified mail to the officer, agency or corporation.(3) The Court shall allow a reasonable time for service of process under this subdivision for the purpose of curing the failure to serve multiple officers, agencies, or corporations of the United States if the plaintiff has effected service on either the United States Attorney or the Attorney General of the United States.(j) Service upon the District of Columbia, an officer or agency thereof, or upon other government entities subject to suit.(1) Service shall be made upon the District of Columbia by delivering (pursuant to paragraph (c)(2)) or mailing (pursuant to paragraph (c)(3)) a copy of the summons, complaint and initial order to the Mayor of the District of Columbia (or designee) and the Corporation Counsel of the District of Columbia (or designee). The Mayor and the Corporation Counsel may each designate an employee for receipt of service of process by filing a written notice with the Clerk of the Court. In any action attacking the validity of an order of an officer or agency of the District of Columbia not made a party, a copy of the summons, complaint and initial order also shall be delivered or mailed to such officer or agency. Service upon an officer or agency of the District of Columbia shall be made by delivering (pursuant to paragraph (c)(2)) or mailing (pursuant to paragraph (c)(3)) a copy of the summons, complaint and initial order to the Mayor (or designee), the Corporation Counsel (or designee), and such officer or agency.(2) Service upon a state, municipal corporation, or other governmental organization subject to suit shall be effected by delivering a copy of the summons, complaint and initial order to its chief executive officer or by serving the summons, complaint and initial order in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant.(k) Territorial limits of effective service.(1) Service of a summons, complaint and initial order or filing an acknowledgment of service is effective to establish jurisdiction over the person of a defendant(A) who could be subjected to the jurisdiction of this Court, or(B) who is a party joined under Rule 14 or Rule 19 and is served at a place not more than 100 miles from the place of hearing or trial, or(C) [Vacant].(D) when authorized by a statute of the United States or the of Columbia.(2) If the exercise of jurisdiction is consistent with the Constitution and applicable law, serving a summons or filing an acknowledgment of service is also effective, with respect to claims arising under such law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state.(l) Proof of service. If service is not acknowledged, the person effecting service shall make proof of service to the Court. If service is made by a person other than a United States marshal or deputy United States marshal, the person shall make affidavit thereof. The affidavit shall specifically state each of the following:(1) If service is made by delivery pursuant to paragraph (c)(2) of this Rule, the return of service shall be made under oath (unless service was made by the United States marshal or deputy United States marshal) and shall specifically state the caption and number of the case; the process server’s name, residential or business address, and the fact that he or she is eighteen (18) years of age or older; the time and place at which service was effected; the fact that a summons, a copy of the complaint and the initial order setting the case for an Initial Scheduling Conference were delivered to the person served; and, if service was effected by delivery to a person other than a party named in the summons, then specific facts from which the Court can determine that the person to whom process was delivered meets the appropriate qualifications for receipt of process set out in subdivisions (e) through (j) of this Rule.(2) If service is made by registered or certified mail under paragraph (c)(3) of this Rule, the return shall be accompanied by the signed receipt attached to an affidavit which shall specifically state the caption and number of the case; the name and address of the person who posted the registered or certified letter; the fact that such letter contained a summons, a copy of the complaint and the initial order setting the case for an Initial Scheduling Conference; and, if the return receipt does not purport to be signed by the party named in the summons, then specific facts from which the Court can determine that the person who signed the receipt meets the appropriate qualifications for receipt of process set out in subdivisions (e) through (j) of this Rule.Proof of service in a place not within the United States shall, if effected under paragraph (1) of subdivision (f), 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. Failure to make proof of service does not affect the validity of the service. The Court may allow proof of service to be amended.(m) Time limit for service. Within 60 days of the filing of the complaint, the plaintiff must file either an acknowledgment of service or proof of service of the summons, the complaint and any order directed by the Court to the parties at the time of filing. The acknowledgement or proof shall be filed as to each defendant who has not responded to the complaint. Prior to the expiration of the foregoing time period, a motion may be made to extend the time for service. The motion must set forth in detail the efforts which have been made, and will be made in the future, to obtain service. The Court shall extend the period for such time as may be warranted by circumstances set forth in the motion. Failure to comply with the requirements of this Rule shall result in the dismissal without prejudice of the complaint. The Clerk shall enter the dismissal and shall serve notice thereof on all the parties entitled thereto. This subdivision does not apply to service in a foreign country pursuant to subdivision (f) or (h)(2) or to cases to which Rule 40-III is applicable.(n) Seizure of property; service of summons not feasible.(1) If a statute of the District of Columbia so provides, the Court may assert jurisdiction over property. Notice to claimants of the property shall then be sent in the manner provided by the statute or by service of a summons under this rule.(2) Upon a showing that personal jurisdiction over a defendant cannot be obtained with reasonable efforts by service of summons in any manner authorized by this rule, the Court may assert jurisdiction over any of the defendant’s assets found within the District of Columbia by seizing the assets under the circumstances and in the manner provided by District of Columbia law.(Amended, May 23, 1975; Feb. 1, 1985; Apr. 2, 1990; Jan. 1, 1991; May 12, 1993, eff. July 1, 1993; May 26, 1995, eff. June 1, 1995; May 26, 1998; amended effective February 16, 2000.)
Rule 5. Service and filing of pleadings and other papers.(a) Service: When required. Except as otherwise provided in these Rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the Court otherwise orders, every paper relating to discovery required to be served upon a party unless the Court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. Any pleadings asserting new or additional claims for relief against any party in default must be served upon such party in the manner provided for service of summons in Rule 4.In an action begun by seizure of property, in which no person need be or is named as defendant, any service required to be made prior to the filing of an answer, claim, or appearance shall be made upon the person having custody or possession of the property at the time of its seizure.(b) Same: How made. Whenever under these Rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party is ordered by the Court. Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or party or by mailing it to the attorney or party at the attorney’s or party’s last known address or, if no address is known, by leaving it with the Clerk of the Court. Delivery of a copy within this Rule means: Handing it to the attorney or to the party; or leaving it at the attorney’s or party’s office with a clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at the person’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing.(c) Same: Numerous defendants. In any action in which there are unusually large numbers of defendants, the Court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the Court directs.(d) Filing. All papers after the complaint required to be served upon a party, other than those referred to in Rule 12-I(e), shall be filed with the Court either before service or within 5 days after service; however, the clerk shall not accept for filing depositions transcripts, interrogatories, requests for documents, requests for admission, and responses thereto except as set forth in the last sentence of this paragraph. The party serving such a discovery paper or noticing a deposition must, however, file with the Court a CERTIFICATE REGARDING DISCOVERY which shall indicate the title of the discovery paper served and the date on which it was served. The requesting party must retain the original discovery paper, and must also retain personally, or make arrangements for the reporter to retain, in their original and unaltered form, any deposition transcripts which have been made at the party’s request. Such discovery papers and deposition transcripts must be retained until the case is concluded in this Court, the time for noting an appeal or petitioning for a writ of certiorari has expired, and any such appeal or petition has been decided. Discovery papers and deposition transcripts may be filed, without leave of court, if they are appended to a motion or opposition to which they are relevant and may otherwise be filed if so ordered by the Court sua sponte or pursuant to motion.(e) Filing with the Court defined. The filing of papers with the Court as required by these Rules shall be made by filing them with the Clerk of the Court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the Office of the Clerk. On the date of the filing of any motion, any papers related to a motion (i.e., an opposition to a motion, memorandum of points and authorities, exhibits related thereto or proposed order), the party filing such motion, papers or pretrial statements and other papers described in SCR Civil 16(d) and (e) shall deliver a chambers copy thereof to a depository designated by the Clerk of the Court for receipt of such papers by the assigned judge. Along with the chambers copy of the motion, the moving party must provide the assigned judge with (1) an original proposed order and (2) an addressed envelope or a mailing label for each counsel or unrepresented party to the case. With the chambers copy of any opposition to a motion, the party filing the opposition must provide the assigned judge with an original proposed order. If the original document has been mailed, the chambers copy may be mailed to chambers. No other papers shall be delivered to the judge’s chambers unless the assigned judge so orders.(Amended, Nov. 16, 1976; June 1, 1982; Apr. 2, 1990; Jan. 1, 1991; Apr. 29, 1992, eff. June 8, 1992; May 12, 1993, eff. July 1, 1993; Feb. 2, 1998, eff. Mar. 1, 1998.)Rule 5-I. Proof of service.Proof of service of papers required or permitted to be served (other than those for which a method of proof is prescribed elsewhere in these Rules or by statute) and proof that chambers copies have been supplied to the assigned judge as required by Rule 5(e), shall be filed before action is to be taken thereon. The proof shall show the date and manner of service on the parties and delivery to the judge, and may be by written acknowledgment thereof, by affidavit of the person making service or delivery, by certificate of a member of the Bar of this Court, or by other proof satisfactory to the Court. Failure to make such proof will not affect the validity thereof. The Court may at any time allow the proof to be amended or supplied, unless to do so would result in material prejudice to a party.(Amended, Apr. 29, 1992, eff. June 8, 1992.)Rule 5-II. Pleadings and orders affecting estates of veterans.A copy of any pleading or order affecting the estate of a veteran shall be mailed to the Veterans Administration by the party filing or obtaining the same.Rule 45. Subpoena.(a) Form; issuance.(1) Every subpoena shall(A) state the name of the Court; and(B) state the title of the action, and its civil action number and individual calendar number; and(C) command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified; and(D) set forth the text of subdivisions (c) and (d) of this rule.A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately.(2) A subpoena for a deposition, production, or inspection shall specify a place for the deposition, production, or inspection which is within the District of Columbia, unless the parties and person subpoenaed otherwise agree or the Court, upon application, fixes another convenient location.(3) The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney as officer of the court may also issue and sign a subpoena.(b) Service.(1) A subpoena may be served by any person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and, if the person’s attendance is commanded, by tendering to that person the fees for one day’s attendance and the mileage allowed by law. When the subpoena is issued on behalf of the United States or the District of Columbia or an officer or agency thereof, fees and mileage need not be tendered. Prior notice of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5 (b).(2) Subject to the provisions of clause (ii) of subparagraph (c)(3)(A) of this Rule, a subpoena for a hearing or trial may be served at any place within the District of Columbia, or at any place without the District of Columbia that is within 25 miles of the place of the hearing or trial; a subpoena for a deposition, production, or inspection may be served at any place which is within the District of Columbia or within 25 miles of the District of Columbia. When an applicable statute provides therefor, the Court upon proper application and cause shown may authorize the service of a subpoena at any other place. A subpoena directed to a witness in a foreign country who is a national or resident of the United States shall issue under the circumstances and in the manner and be served as provided in Title 28 U.S.C. Â§ 1783.(3) Proof of service when necessary shall be made by filing with the clerk of the court a statement of the date and manner of service and of the names of the persons served, certified by the person who made the service.(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 shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney’s fee.(2)(A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.(B) Subject to paragraph (d)(2) of this Rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the Court. 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 shall quash or modify the subpoena if it(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 more than 25 miles from the place where that person resides, is employed or regularly transacts business in person, except that, subject to the provisions of clause (c)(3)(B)(iii) of this Rule, such a person may in order to attend trial be commanded to travel from any such place to the place of trial, or(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or(iv) subjects a person to undue burden.(B) If a subpoena(i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or(ii) requires disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study made not at the request of any party, or(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 25 miles to attend trial, the Court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the Court may order appearance or production only upon specified conditions.(d) Duties in responding to subpoena.(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.(e) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the Court. An adequate cause for failure to obey exists when a subpoena purports to require a non-party to attend or produce at a place not within the limits provided by clause (ii) of subparagraph (c)(3)(A).(Amended, June 1, 1982; Apr. 2, 1990; May 12, 1993, eff. July 1, 1993.)District of Columbia CodeÂ§ 13-303. Service or execution on Sunday. Repealed.Repealed. [Process may not be served on Sunday.]Repealed. June 18, 1991, D.C. Law 9-5, Â§ 3(c), 38 DCR 2717; Aug. 17, 1991, D.C. Law 9-39, Â§ 3(c), 38 DCR 4970.Â§ 13-332. Service on infants; appointment and compensation of guardian and attorney.(a) When an infant is a party defendant in an action, the summons and complaint shall be served upon him personally and, when he is under 16 years of age, upon the person with whom he resides, if within the District. The infant shall be produced in court unless, for cause shown, the court dispenses with his appearance. The provisions of rules of court regarding guardians ad litem apply, and whenever in the judgment of the court the interests of an infant defendant require it, the court shall assign an attorney to represent the infant whose compensation shall be paid by the plaintiff, or out of the estate of the infant, at the discretion of the court.(b) An infant who secretes himself or evades service of process may be proceeded against as if he were a nonresident.(c) Whoever secretes an infant against whom process has issued, so as to prevent service of the process, or prevents his appearance in court, is liable to attachment and punishment as for contempt.(Dec. 23, 1963, 77 Stat. 513, Pub. L. 88-241, Â§ 1; 1973 Ed., Â§ 13-332.)Â§ 13-333. Service on incompetent persons. When a person non compos mentis is a party defendant in an action, process shall be served upon him personally, if within the District, and upon his committee, if there is one within the District.(Dec. 23, 1963, 77 Stat. 513, Pub. L. 88-241, Â§ 1; 1973 Ed., Â§ 13-333.)Â§ 13-334. Service on foreign corporations.(a) In an action against a foreign corporation doing business in the District, process may be served on the agent of the corporation or person conducting its business, or, when he is absent and can not be found, by leaving a copy at the principal place of business in the District, or, where there is no such place of business, by leaving a copy at the place of business or residence of the agent in the District, and that service is effectual to bring the corporation before the court.(b) When a foreign corporation transacts business in the District without having a place of business or resident agent therein, service upon any officer or agent or employee of the corporation in the District is effectual as to actions growing out of contracts entered into or to be performed, in whole or in part, in the District of Columbia or growing out of any tort committed in the District.(Dec. 23, 1963, 77 Stat. 513, Pub. L. 88-241, Â§ 1; 1973 Ed., Â§ 13-334.)Â§ 13-335. Service by publication on domestic or foreign corporations. In an action specified by section 13-336, when process can not be served upon a domestic or foreign corporation, the corporation may be proceeded against as a nonresident defendant, by notice by publication.(Dec. 23, 1963, 77 Stat. 514, Pub. L. 88-241, Â§ 1; 1973 Ed., Â§ 13-335.)Â§ 13-336. Service by publication on nonresidents, absent defendants, and unknown heirs or devisees.(a) In actions specified by subsection (b) of this section, publication may be substituted for personal service of process upon a defendant who can not be found and who is shown by affidavit to be a nonresident, or to have been absent from the District for at least six months, or against the unknown heirs or devisees of deceased persons.(b) This section applies only to:(1) actions for partition;(2) actions for divorce or annulment;(3) actions for child custody under D.C. Code, title 16, chapter 45;(4) actions by attachment;(5) actions for foreclosure of mortgages and deeds of trust;(6) actions for the establishment of title to real estate by possession;(7) actions for the enforcement of mechanics’ liens, and other liens against real or personal property within the District; and(8) actions that have for their immediate object the enforcement or establishment of any lawful right, claim, or demand to or against any real or personal property within the jurisdiction of the court.(Dec. 23, 1963, 77 Stat. 514, Pub. L. 88-241, Â§ 1; 1973 Ed., Â§ 13-336; Mar. 10, 1983, D.C. Law 4-200, Â§ 3, 30 DCR 125.)Â§ 13-337. Personal service outside District in lieu of publication.(a) In actions specified by section 13-336, personal service of process may be made on a nonresident defendant out of the District, and the service has the same effect, and no other, as an order of publication duly executed.(b) The service may be made by any person not a party to or otherwise interested in the subject-matter in controversy. The return shall be made under oath in the District of Columbia, unless the person making the service is a sheriff, deputy sheriff, marshal, or deputy marshal, authorized to serve process where service is made. The return must show the time and place of service and that the defendant so served is a nonresident of the District of Columbia.(c) The cost and expense of such service of process out of the District shall be borne by the party at whose instance it is made and may not be taxed as part of the costs in the case; but where the service of process is made by an authorized officer of the law specified by this section, the actual and usual cost of the service of process shall be taxed as a part of the costs in the case.(Dec. 23, 1963, 77 Stat. 514, Pub. L. 88-241, Â§ 1; 1973 Ed., Â§ 13-337.)Â§ 13-338. Prerequisites for order of publication. An order for the substitution of publication for personal service may not be made until:(1) a summons for the defendant has been issued and returned “Not to be found,” and(2) the nonresidence of the defendant or his absence for at least six months is proved by affidavit to the satisfaction of the court.(Dec. 23, 1963, 77 Stat. 514, Pub. L. 88-241, Â§ 1; 1973 Ed., Â§ 13-338.)

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Ohio Foreclosure Process Server Laws

By admin | April 9, 2010

OHIO RULES OF CIVIL PROCEDURE

Rule 4. Process: Summons

(A) Summons: issuance. Upon the filing of the complaint the clerk shall forthwith issue a summons for service upon each defendant listed in the caption. Upon request of the plaintiff separate or additional summons shall issue at any time against any defendant.

(B) Summons: form; copy of complaint. The summons shall be signed by the clerk, contain the name and address of the court and the names and addresses 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 times within which these rules or any statutory provision 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 may contain, in lieu of the names and addresses of all parties, the name of the first party on each side and the name and address of the party to be served. A copy of the complaint shall be attached to each summons. The plaintiff shall furnish the clerk with sufficient copies.

(C) Summons: plaintiff and defendant defined. For the purpose of issuance and service of summons “plaintiff” shall include any party seeking the issuance and service of summons, and “defendant” shall include any party upon whom service of summons is sought.

(D) Waiver of service of summons. Service of summons may be waived in writing by any person entitled thereto under Rule 4.2 who is at least eighteen years of age and not under disability.

(E) Summons: time limit for service. If a service of the summons and complaint is not made upon a defendant within six months 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. This division shall not apply to out-of-state service pursuant to Rule 4.3 or to service in a foreign country pursuant to Rule 4.5. [Adopted eff. 7-1-70; amended eff. 7-1-71, 7-1-73, 7-1-75, 7-1-84]

Rule 4.1 Process: Methods of ServiceAll methods of service within this state, except service by publication as provided in Civ. R. 4.4(A), are described in this rule. Methods of out-of-state service and for service in a foreign country are described in Civ. R. 4.3 and 4.5.

(A) Service by certified or express mail. Evidenced by return receipt signed by any person, service of any process shall be by certified or express mail unless otherwise permitted by these rules. The clerk shall place a copy of the process and complaint or other document to be served in an envelope. The clerk shall address the envelope to the person to be served at the address set forth in the caption or at the address set forth in written instructions furnished to the clerk with instructions to forward. The clerk shall affix adequate postage and place the sealed envelope in the United States mail as certified or express mail return receipt requested with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. The clerk shall forthwith enter the fact of mailing on the appearance docket and make a similar entry when the return receipt is received. If the envelope is returned with an endorsement showing failure of delivery, the clerk shall forthwith notify, by mail, the attorney of record or, if there is no attorney of record, the party at whose instance process was issued and enter the fact of notification on the appearance docket. The clerk shall file the return receipt or returned envelope in the records of the action. All postage shall be charged to costs. If the parties to be served by certified or express mail are numerous and the clerk determines there is insufficient security for costs, the clerk may require the party requesting service to advance an amount estimated by the clerk to be sufficient to pay the postage.

(B) Personal service. When the plaintiff files a written request with the clerk for personal service, service of process shall be made by that method. When process issued from the Supreme Court, a court of appeals, a court of common pleas, or a county court is to be served personally, the clerk of the court shall deliver the process and sufficient copies of the process and complaint, or other document to be served, to the sheriff of the county in which the party to be served resides or may be found. When process issues from the municipal court, delivery shall be to the bailiff of the court for service on all defendants who reside or may be found within the county or counties in which that court has territorial jurisdiction and to the sheriff of any other county in this state for service upon a defendant who resides in or may be found in that other county. In the alternative, process issuing from any of these courts may be delivered by the clerk to any person not less than eighteen years of age, who is not a party and who has been designated by order of the court to make service of process. The person serving process shall locate the person to be served and shall tender a copy of the process and accompanying documents to the person to be served. When the copy of the process has been served, the person serving process shall endorse that fact on the process and return it to the clerk, who shall make the appropriate entry on the appearance docket. When the person serving process is unable to serve a copy of the process within twenty-eight days, the person shall endorse that fact and the reasons therefor on the process and return the process and copies to the clerk who shall make the appropriate entry on the appearance docket. In the event of failure of service, the clerk shall follow the notification procedure set forth in division (A) of this rule. Failure to make service within the twenty-eight day period and failure to make proof of service do not affect the validity of the service.

(C) Residence service. When the plaintiff files a written request with the clerk for residence service, service of process shall be made by that method. Residence service shall be effected by leaving a copy of the process and the complaint, or other document to be served, at the usual place of residence of the person to be served with some person of suitable age and discretion then residing therein. The clerk of the court shall issue the process, and the process server shall return it, in the same manner as prescribed in division (B) of this rule. When the person serving process is unable to serve a copy of the process within twenty-eight days, the person shall endorse that fact and the reasons therefor on the process, and return the process and copies to the clerk, who shall make the appropriate entry on the appearance docket. In the event of failure of service, the clerk shall follow the notification procedure set forth in division (A) of this rule. Failure to make service within the twenty-eight-day period and failure to make proof of service do not affect the validity of service. [Adopted eff. 7-1-70; amended eff. 7-1-71, 7-1-80, 7-1-97]

Rule 4.2 Process: Who May be ServedService of process, except service by publication as provided in Civ. R. 4.4(A), pursuant to Civ. R. 4 through 4.6 shall be made as follows:

(A) Upon an individual, other than a person under sixteen years of age or an incompetent person, by serving the individual;

(B) Upon a person under sixteen years of age by serving either the person’s guardian or any one of the following persons with whom the person to be served lives or resides: father, mother, or the individual having the care of the person; or by serving the person if the person neither has a guardian nor lives or resides with a parent or a person having his or her care;

(C) Upon an incompetent person by serving either the incompetent’s guardian or the person designated in division (E) of this rule, but if no guardian has been appointed and the incompetent is not under confinement or commitment, by serving the incompetent;

(D) Upon an individual confined to a penal institution of this state or of a subdivision of this state by serving the individual, except that when the individual to be served is a person under sixteen years of age, the provisions of division (B) of this rule shall be applicable;

(E) Upon an incompetent person who is confined in any institution for the mentally ill or mentally deficient or committed by order of court to the custody of some other institution or person by serving the superintendent or similar official of the institution to which the incompetent is confined or committed or the person to whose custody the incompetent is committed;

(F) Upon a corporation either domestic or foreign: by serving the agent authorized by appointment or by law to receive service of process; or by serving the corporation by certified or express mail at any of its usual places of business; or by serving an officer or a managing or general agent of the corporation;

(G) Upon a partnership, a limited partnership, or a limited partnership association by serving the entity by certified or express mail at any of its usual places of business or by serving a partner, limited partner, manager, or member;

(H) Upon an unincorporated association by serving it in its entity name by certified or express mail at any of its usual places of business or by serving an officer of the unincorporated association;

(I) Upon a professional association by serving the association in its corporate name by certified or express mail at the place where the corporate offices are maintained or by serving a shareholder;

(J) Upon this state or any one of its departments, offices and institutions as defined in division (C) of section 121.01 of the Revised Code, by serving the officer responsible for the administration of the department, office or institution or by serving the attorney general of this state;

(K) Upon a county or upon any of its offices, agencies, districts, departments, institutions or administrative units, by serving the officer responsible for the administration of the office, agency, district, department, institution or unit or by serving the prosecuting attorney of the county;

(L) Upon a township by serving one or more of the township trustees or the township clerk or by serving the prosecuting attorney of the county in which the township is located, unless the township is organized under Chapter 504. of the Revised Code, in which case service may be made upon the township law director;

(M) Upon a municipal corporation or upon any of its offices, departments, agencies, authorities, institutions or administrative units by serving the officer responsible for the administration of the office, department, agency, authority, institution or unit or by serving the city solicitor or comparable legal officer;

(N) Upon any governmental entity not mentioned above by serving the person, officer, group or body responsible for the administration of that entity or by serving the appropriate legal officer, if any, representing the entity. Service upon any person who is a member of the “group” or “body” responsible for the administration of the entity shall be sufficient. [Adopted eff. 7-1-70; amended eff. 7-1-71, 7-1-96, 7-1-97]

Rule 4.3 Process: Out-of-State Service

(A) When service permitted. Service of process may be made outside of this state, as provided in this rule, in any action in this state, upon a person who, at the time of service of process, is a nonresident of this state or is a resident of this state who is absent from this state. “Person” includes an individual, an individual’s executor, administrator, or other personal representative, or a corporation, partnership, association, or any other legal or commercial entity, who, acting directly or by an agent, has caused an event to occur out of which the claim that is the subject of the complaint arose, from the person’s:

(1) Transacting any business in this state;

(2) Contracting to supply services or goods in this state;

(3) Causing tortious injury by an act or omission in this state, including, but not limited to, actions arising out of the ownership, operation, or use of a motor vehicle or aircraft in this state;

(4) Causing tortious injury in this state by an act or omission outside this state if the person regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;

(5) Causing injury in this state to any person by breach of warranty expressly or impliedly made in the sale of goods outside this state when the person to be served might reasonably have expected the person who was injured to use, consume, or be affected by the goods in this state, provided that the person to be served also regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;

(6) Having an interest in, using, or possessing real property in this state;

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

(8) Living in the marital relationship within this state notwithstanding subsequent departure from this state, as to all obligations arising for spousal support, custody, child support, or property settlement, if the other party to the marital relationship continues to reside in this state;

(9) Causing tortious injury in this state to any person by an act outside this state committed with the purpose of injuring persons, when the person to be served might reasonably have expected that some person would be injured by the act in this state;

(10) Causing tortious injury to any person by a criminal act, any element of which takes place in this state, that the person to be served commits or in the commission of which the person to be served is guilty of complicity.

(B) Methods of service.

(1) Service by certified or express mail. Evidenced by return receipt signed by any person, service of any process shall be by certified or express mail unless otherwise permitted by these rules. The clerk shall place a copy of the process and complaint or other document to be served in an envelope. The clerk shall address the envelope to the person to be served at the address set forth in the caption or at the address set forth in written instructions furnished to the clerk with instructions to forward. The clerk shall affix adequate postage and place the sealed envelope in the United States mail as certified or express mail return receipt requested with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. The clerk shall forthwith enter the fact of mailing on the appearance docket and make a similar entry when the return receipt is received. If the envelope is returned with an endorsement showing failure of delivery, the clerk shall forthwith notify, by mail, the attorney of record or, if there is no attorney of record, the party at whose instance process was issued and enter the fact of notification on the appearance docket. The clerk shall file the return receipt or returned envelope in the records of the action. If the envelope is returned with an endorsement showing failure of delivery, service is complete when the attorney or serving party, after notification by the clerk, files with the clerk an affidavit setting forth facts indicating the reasonable diligence utilized to ascertain the whereabouts of the party to be served. All postage shall be charged to costs. If the parties to be served by certified or express mail are numerous and the clerk determines there is insufficient security for costs, the clerk may require the party requesting service to advance an amount estimated by the clerk to be sufficient to pay the postage.

(2) Personal service. When ordered by the court, a “person” as defined in division (A) of this rule may be personally served with a copy of the process and complaint or other document to be served. Service under this division may be made by any person not less than eighteen years of age who is not a party and who has been designated by order of the court. On request, the clerk shall deliver the summons to the plaintiff for transmission to the person who will make the service. Proof of service may be made as prescribed by Civ. R. 4.1 (B) or by order of the court.[Adopted eff. 7-1-70; amended eff. 7-1-71, 7-1-80, 7-1-88, 7-1-91, 7-1-97]

Rule 4.4 Process: Service by Publication

(A) Residence unknown.

(1) Except in an action governed by division (A)(2) of this rule, if the residence of a defendant is unknown, service shall be made by publication in actions where such service is authorized by law. Before service by publication can be made, an affidavit of a party or his counsel shall be filed with the court. The affidavit shall aver that service of summons cannot be made because the residence of the defendant is unknown to the affiant, all of the efforts made on behalf of the party to ascertain the residence of the defendant, and that the residence of the defendant cannot be ascertained with reasonable diligence. Upon the filing of the affidavit, the clerk shall cause service of notice to be made by publication in a newspaper of general circulation in the county in which the complaint is filed. If no newspaper is published in that county, then publication shall be in a newspaper published in an adjoining county. The publication shall contain the name and address of the court, the case number, the name of the first party on each side, and the name and last known address, if any, of the person or persons whose residence is unknown. The publication also shall contain a summary statement of the object of the complaint and demand for relief, and shall notify the person to be served that he or she is required to answer within twenty-eight days after the publication. The publication shall be published at least once a week for six successive weeks unless publication for a lesser number of weeks is specifically provided by law. Service shall be complete at the date of the last publication. After the last publication, the publisher or its agent shall file with the court an affidavit showing the fact of publication together with a copy of the notice of publication. The affidavit and copy of the notice shall constitute proof of service.

(2) In a divorce, annulment, or legal separation action, if the plaintiff is proceeding in forma pauperis and if the residence of the defendant is unknown, service by publication shall be made by posting and mail. Before service by posting and mail can be made, an affidavit of a party or the party’s counsel shall be filed with the court. The affidavit shall contain the same averments required by division (A)(1) of this rule and, in addition, shall set forth the defendant’s last known address. Upon the filing of the affidavit, the clerk shall cause service of notice to be made by posting in a conspicuous place in the courthouse or courthouses in which the general and domestic relations divisions of the court of common pleas for the county are located and in two additional public places in the county that have been designated by local rule for the posting of notices pursuant to this rule. The notice shall contain the same information required by division (A)(1) of this rule to be contained in a newspaper publication. The notice shall be posted in the required locations for six successive weeks. The clerk shall also cause the complaint and summons to be mailed by ordinary mail, address correction requested, to the defendant’s last known address. The clerk shall obtain a certificate of mailing from the United States Postal Service. If the clerk is notified of a corrected or forwarding address of the defendant within the six-week period that notice is posted pursuant to division (A)(2) of this rule, the clerk shall cause the complaint and summons to be mailed to the corrected or forwarding address. The clerk shall note the name, address, and date of each mailing in the docket. After the last week of posting, the clerk shall note on the docket where and when notice was posted. Service shall be complete upon the entry of posting.

(B) Residence known. If the residence of a defendant is known, and the action is one in which service by publication is authorized by law, service of process shall be effected by a method other than by publication as provided by:

(1) Rule 4.1, if the defendant is a resident of this state,

(2) Rule 4.3(B) if defendant is not a resident of this state, or

(3) Rule 4.5, in the alternative, if service on defendant is to be effected in a foreign country. If service of process cannot be effected under the provisions of this subdivision or Rule 4.6(C) or Rule 4.6(D), service of process shall proceed by publication. [Adopted eff. 7-1-70; amended eff. 7-1-71, 7-1-91]

Rule 4.5 Process: Alternative Provisions for Service in a Foreign Country

(A) Manner. When Civ. R. 4.3 or Civ. R. 4.4 or both allow service upon a person outside this state and service is to be effected in a foreign country, service of the summons and complaint may also be made:

(1) 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 when service is calculated to give actual notice;

(2) As directed by the foreign authority in response to a letter rogatory when service is calculated to give actual notice;

(3) Upon an individual by delivery to him personally;

(4) Upon a corporation or partnership or association by delivery to an officer, a managing or general agent;

(5) By any form of mail requiring a signed receipt, when the clerk of the court addresses and dispatches this mail to the party to be served;

(6) As directed by order of the court. Service under division (A)(3) or (A)(6) of this rule may be made by any person not less than eighteen years of age who is not a party and who has been designated by order of the court, or by the foreign court. On request the clerk shall deliver the summons to the plaintiff for transmission to the person or the foreign court or officer who will make the service.

(B) Return.Proof of service may be made as prescribed by Civ. R. 4.1(B), or by the law of the foreign country, or by order of the court. When mail service is made pursuant to division (A)(5) of this rule, proof of service shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court. [Adopted eff. 7-1-70; amended eff. 7-1-97]

Rule 4.6 Process: Limits; Amendment; Service Refused; Service Unclaimed

(A) Limits of effective service. All process may be served anywhere in this state and, when authorized by law or these rules, may be served outside this state.

(B) Amendment. The court within its discretion and upon such terms as are just, may at any time allow the amendment of any process or proof of service thereof, unless the amendment would cause material prejudice to the substantial rights of the party against whom the process was issued.

(C) Service refused. If service of process is refused, and the certified or express mail envelope is returned with an endorsement showing such refusal, or the return of the person serving process states that service of process has been refused, the clerk shall forthwith notify, by mail, the attorney of record or, if there is no attorney of record, the party at whose instance process was issued. If the attorney, or serving party, after notification by the clerk, files with the clerk a written request for ordinary mail service, the clerk shall send by ordinary mail a copy of the summons and complaint or other document to be served to the defendant at the address set forth in the caption, or at the address set forth in written instructions furnished to the clerk. The mailing shall be evidenced by a certificate of mailing which shall be completed and filed by the clerk. Answer day shall be twenty-eight days after the date of mailing as evidenced by the certificate of mailing. The clerk shall endorse this answer date upon the summons which is sent by ordinary mail. Service shall be deemed complete when the fact of mailing is entered of record. Failure to claim certified or express mail service is not refusal of service within the meaning of division (C) of this rule.

(D) Service unclaimed. If a certified or express mail envelope is returned with an endorsement showing that the envelope was unclaimed, the clerk shall forthwith notify, by mail, the attorney of record or, if there is no attorney of record, the party at whose instance process was issued. If the attorney, or serving party, after notification by the clerk, files with the clerk a written request for ordinary mail service, the clerk shall send by ordinary mail a copy of the summons and complaint or other document to be served to the defendant at the address set forth in the caption, or at the address set forth in written instructions furnished to the clerk. The mailing shall be evidenced by a certificate of mailing which shall be completed and filed by the clerk. Answer day shall be twenty-eight days after the date of mailing as evidenced by the certificate of mailing. The clerk shall endorse this answer date upon the summons which is sent by ordinary mail. Service shall be deemed complete when the fact of mailing is entered of record, provided that the ordinary mail envelope is not returned by the postal authorities with an endorsement showing failure of delivery. If the ordinary mail envelope is returned undelivered, the clerk shall forthwith notify the attorney, or serving party, by mail.

(E) Duty of attorney of record or serving party. The attorney of record or the serving party shall be responsible for determining if service has been made and shall timely file written instructions with the clerk regarding completion of service notwithstanding the provisions in Civ. R. 4.1 through 4.6 which instruct a clerk to notify the attorney of record or the serving party of failure of service of process. [Adopted eff. 7-1-70; amended eff. 7-1-71, 7-1-78, 7-1-97]

Rule 45. Subpoena

(A) Form; Issuance.

(1) Every subpoena shall do all of the following:

(a) state the name of the court from which it is issued, the title of the action, and the case number;

(b) command each person to whom it is directed, at a time and place specified in the subpoena, to:

(i) attend and give testimony at a trial, hearing, or deposition;

(ii) produce documents or tangible things at a trial, hearing, or deposition;

(iii) produce and permit inspection and copying of any designated documents that are in the possession, custody, or control of the person;

(iv) produce and permit inspection and copying, testing, or sampling of any tangible things that are in the possession, custody, or control of the person; or

(v) permit entry upon designated land or other property that is in the possession or control of the person for the purposes described in Civ. R. 34(A)(3)(c) set forth the text of divisions (C) and (D) of this rule. A command to produce and permit inspection may be joined with a command to attend and give testimony, or may be issued separately. A subpoena may not be used to obtain the attendance of a party or the production of documents by a party in discovery. Rather, a party’s attendance at a deposition may be obtained only by notice under Civ. R. 30, and documents may be obtained from a party in discovery only pursuant to Civ. R. 34.

(c) set forth the text of divisions (C) and (D) of this rule. A command to produce and permit inspection may be joined with a command to attend and give testimony, or may be issued separately. A subpoena may not be used to obtain the attendance of a party or the production of documents by a party in discovery. Rather, a party’s attendance at a deposition may be obtained only by notice under Civ. R. 30, and documents may be obtained from a party in discovery only pursuant to Civ. R. 34.

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

(3) If the issuing attorney modifies the subpoena in any way, the issuing attorney shall give prompt notice of the modification to all other parties.

(B) Service. A subpoena may be served by a sheriff, bailiff, coroner, clerk of court, constable, or a deputy of any, by an attorney at law, or by any other person designated by order of court who is not a party and is not less than eighteen years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy of the subpoena to the person, by reading it to him or her in person, or by leaving it at the person’s usual place of residence, and by tendering to the person upon demand the fees for one day’s attendance and the mileage allowed by law. The person serving the subpoena shall file a return of the subpoena with the clerk. If the witness being subpoenaed resides outside the county in which the court is located, the fees for one day’s attendance and mileage shall be tendered without demand. The return may be forwarded through the postal service or otherwise.Case Note:A subpoena is validly served when it is sent by regular mail to the witness’ residence and the witness has actual knowledge of it. State v. Castle, 92 O.App.3d 732, 637 N.E.2d 80 (1994).

(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.

(2)(a) A person commanded to produce under divisions (A)(1)(b)(ii), (iii), (iv), or (v) of this rule need not appear in person at the place of production or inspection unless commanded to attend and give testimony at a deposition, hearing, or trial.

(b) Subject to division (D)(2) of this rule, a person commanded to produce under divisions (A)(1)(b)(ii), (iii), (iv), or (v) of this rule may, within fourteen days after service of the subpoena or before the time specified for compliance if such time is less than fourteen days after service, serve upon the party or attorney designated in the subpoena written objections to production. If objection is made, the party serving the subpoena shall not be entitled to production except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena, upon notice to the person commanded to produce, may move at any time for an order to compel the production. 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 production commanded.

(3) On timely motion, the court from which the subpoena was issued shall quash or modify the subpoena, or order appearance or production only under specified conditions, if the subpoena does any of the following:

(a) Fails to allow reasonable time to comply;

(b) Requires disclosure of privileged or otherwise protected matter and no exception or waiver applies;

(c) Requires disclosure of a fact known or opinion held by an expert not retained or specially employed by any party in anticipation of litigation or preparation for trial as described by Civ. R. 26(B)(4), if the fact or opinion does not describe specific events or occurrences in dispute and results from study by that expert that was not made at the request of any party;

(d) Subjects a person to undue burden.

(4) Before filing a motion pursuant to division (C)(3)(d) of this rule, a person resisting discovery under this rule shall attempt to resolve any claim of undue burden through discussions with the issuing attorney. A motion filed pursuant to division (C)(3)(d) of this rule shall be supported by an affidavit of the subpoenaed person or a certificate of that person’s attorney of the efforts made to resolve any claim of undue burden.

(5) If a motion is made under division (C)(3)(c) or (C)(3)(d) of this rule, the court shall quash or modify the subpoena unless the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated.

(D) Duties in responding to subpoena.

(1) A person responding to a subpoena to produce documents shall, at the person’s option, produce them as they are kept in the usual course of business or organized and labeled to correspond with the categories in the subpoena. A person producing documents pursuant to a subpoena for them shall permit their inspection and copying by all parties present at the time and place set in the subpoena for inspection and copying.

(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials under Civ. R. 26(B)(3) or (4), the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.

(E) Sanctions. 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. A subpoenaed person or that person’s attorney who frivolously resists discovery under this rule may be required by the court to pay the reasonable expenses, including reasonable attorney’s fees, of the party seeking the discovery. The court from which a subpoena was issued may impose upon a party or attorney in breach of the duty imposed by division (C)(1) of this rule an appropriate sanction, which may include, but is not limited to, lost earnings and reasonable attorney’s fees.

(F) Privileges.Nothing in this rule shall be construed to authorize a party to obtain information protected by any privilege recognized by law, or to authorize any person to disclose such information. [Adopted eff. 7-1-70; amended eff. 7-1-71, 7-1-72, 7-1-93, 7-1-94]

OHIO RULES OF CIVIL PROCEDURE

Rule 4. Process: Summons(A) Summons: issuance. Upon the filing of the complaint the clerk shall forthwith issue a summons for service upon each defendant listed in the caption. Upon request of the plaintiff separate or additional summons shall issue at any time against any defendant.(B) Summons: form; copy of complaint. The summons shall be signed by the clerk, contain the name and address of the court and the names and addresses 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 times within which these rules or any statutory provision 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 may contain, in lieu of the names and addresses of all parties, the name of the first party on each side and the name and address of the party to be served. A copy of the complaint shall be attached to each summons. The plaintiff shall furnish the clerk with sufficient copies.(C) Summons: plaintiff and defendant defined. For the purpose of issuance and service of summons “plaintiff” shall include any party seeking the issuance and service of summons, and “defendant” shall include any party upon whom service of summons is sought.(D) Waiver of service of summons. Service of summons may be waived in writing by any person entitled thereto under Rule 4.2 who is at least eighteen years of age and not under disability.(E) Summons: time limit for service. If a service of the summons and complaint is not made upon a defendant within six months 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. This division shall not apply to out-of-state service pursuant to Rule 4.3 or to service in a foreign country pursuant to Rule 4.5. [Adopted eff. 7-1-70; amended eff. 7-1-71, 7-1-73, 7-1-75, 7-1-84]Rule 4.1 Process: Methods of ServiceAll methods of service within this state, except service by publication as provided in Civ. R. 4.4(A), are described in this rule. Methods of out-of-state service and for service in a foreign country are described in Civ. R. 4.3 and 4.5.(A) Service by certified or express mail. Evidenced by return receipt signed by any person, service of any process shall be by certified or express mail unless otherwise permitted by these rules. The clerk shall place a copy of the process and complaint or other document to be served in an envelope. The clerk shall address the envelope to the person to be served at the address set forth in the caption or at the address set forth in written instructions furnished to the clerk with instructions to forward. The clerk shall affix adequate postage and place the sealed envelope in the United States mail as certified or express mail return receipt requested with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. The clerk shall forthwith enter the fact of mailing on the appearance docket and make a similar entry when the return receipt is received. If the envelope is returned with an endorsement showing failure of delivery, the clerk shall forthwith notify, by mail, the attorney of record or, if there is no attorney of record, the party at whose instance process was issued and enter the fact of notification on the appearance docket. The clerk shall file the return receipt or returned envelope in the records of the action. All postage shall be charged to costs. If the parties to be served by certified or express mail are numerous and the clerk determines there is insufficient security for costs, the clerk may require the party requesting service to advance an amount estimated by the clerk to be sufficient to pay the postage.(B) Personal service. When the plaintiff files a written request with the clerk for personal service, service of process shall be made by that method. When process issued from the Supreme Court, a court of appeals, a court of common pleas, or a county court is to be served personally, the clerk of the court shall deliver the process and sufficient copies of the process and complaint, or other document to be served, to the sheriff of the county in which the party to be served resides or may be found. When process issues from the municipal court, delivery shall be to the bailiff of the court for service on all defendants who reside or may be found within the county or counties in which that court has territorial jurisdiction and to the sheriff of any other county in this state for service upon a defendant who resides in or may be found in that other county. In the alternative, process issuing from any of these courts may be delivered by the clerk to any person not less than eighteen years of age, who is not a party and who has been designated by order of the court to make service of process. The person serving process shall locate the person to be served and shall tender a copy of the process and accompanying documents to the person to be served. When the copy of the process has been served, the person serving process shall endorse that fact on the process and return it to the clerk, who shall make the appropriate entry on the appearance docket. When the person serving process is unable to serve a copy of the process within twenty-eight days, the person shall endorse that fact and the reasons therefor on the process and return the process and copies to the clerk who shall make the appropriate entry on the appearance docket. In the event of failure of service, the clerk shall follow the notification procedure set forth in division (A) of this rule. Failure to make service within the twenty-eight day period and failure to make proof of service do not affect the validity of the service.(C) Residence service. When the plaintiff files a written request with the clerk for residence service, service of process shall be made by that method. Residence service shall be effected by leaving a copy of the process and the complaint, or other document to be served, at the usual place of residence of the person to be served with some person of suitable age and discretion then residing therein. The clerk of the court shall issue the process, and the process server shall return it, in the same manner as prescribed in division (B) of this rule. When the person serving process is unable to serve a copy of the process within twenty-eight days, the person shall endorse that fact and the reasons therefor on the process, and return the process and copies to the clerk, who shall make the appropriate entry on the appearance docket. In the event of failure of service, the clerk shall follow the notification procedure set forth in division (A) of this rule. Failure to make service within the twenty-eight-day period and failure to make proof of service do not affect the validity of service. [Adopted eff. 7-1-70; amended eff. 7-1-71, 7-1-80, 7-1-97]Rule 4.2 Process: Who May be ServedService of process, except service by publication as provided in Civ. R. 4.4(A), pursuant to Civ. R. 4 through 4.6 shall be made as follows:(A) Upon an individual, other than a person under sixteen years of age or an incompetent person, by serving the individual;(B) Upon a person under sixteen years of age by serving either the person’s guardian or any one of the following persons with whom the person to be served lives or resides: father, mother, or the individual having the care of the person; or by serving the person if the person neither has a guardian nor lives or resides with a parent or a person having his or her care;(C) Upon an incompetent person by serving either the incompetent’s guardian or the person designated in division (E) of this rule, but if no guardian has been appointed and the incompetent is not under confinement or commitment, by serving the incompetent;(D) Upon an individual confined to a penal institution of this state or of a subdivision of this state by serving the individual, except that when the individual to be served is a person under sixteen years of age, the provisions of division (B) of this rule shall be applicable;(E) Upon an incompetent person who is confined in any institution for the mentally ill or mentally deficient or committed by order of court to the custody of some other institution or person by serving the superintendent or similar official of the institution to which the incompetent is confined or committed or the person to whose custody the incompetent is committed;(F) Upon a corporation either domestic or foreign: by serving the agent authorized by appointment or by law to receive service of process; or by serving the corporation by certified or express mail at any of its usual places of business; or by serving an officer or a managing or general agent of the corporation;(G) Upon a partnership, a limited partnership, or a limited partnership association by serving the entity by certified or express mail at any of its usual places of business or by serving a partner, limited partner, manager, or member;(H) Upon an unincorporated association by serving it in its entity name by certified or express mail at any of its usual places of business or by serving an officer of the unincorporated association;(I) Upon a professional association by serving the association in its corporate name by certified or express mail at the place where the corporate offices are maintained or by serving a shareholder;(J) Upon this state or any one of its departments, offices and institutions as defined in division (C) of section 121.01 of the Revised Code, by serving the officer responsible for the administration of the department, office or institution or by serving the attorney general of this state;(K) Upon a county or upon any of its offices, agencies, districts, departments, institutions or administrative units, by serving the officer responsible for the administration of the office, agency, district, department, institution or unit or by serving the prosecuting attorney of the county;(L) Upon a township by serving one or more of the township trustees or the township clerk or by serving the prosecuting attorney of the county in which the township is located, unless the township is organized under Chapter 504. of the Revised Code, in which case service may be made upon the township law director;(M) Upon a municipal corporation or upon any of its offices, departments, agencies, authorities, institutions or administrative units by serving the officer responsible for the administration of the office, department, agency, authority, institution or unit or by serving the city solicitor or comparable legal officer;(N) Upon any governmental entity not mentioned above by serving the person, officer, group or body responsible for the administration of that entity or by serving the appropriate legal officer, if any, representing the entity. Service upon any person who is a member of the “group” or “body” responsible for the administration of the entity shall be sufficient. [Adopted eff. 7-1-70; amended eff. 7-1-71, 7-1-96, 7-1-97]Rule 4.3 Process: Out-of-State Service(A) When service permitted. Service of process may be made outside of this state, as provided in this rule, in any action in this state, upon a person who, at the time of service of process, is a nonresident of this state or is a resident of this state who is absent from this state. “Person” includes an individual, an individual’s executor, administrator, or other personal representative, or a corporation, partnership, association, or any other legal or commercial entity, who, acting directly or by an agent, has caused an event to occur out of which the claim that is the subject of the complaint arose, from the person’s:(1) Transacting any business in this state;(2) Contracting to supply services or goods in this state;(3) Causing tortious injury by an act or omission in this state, including, but not limited to, actions arising out of the ownership, operation, or use of a motor vehicle or aircraft in this state;(4) Causing tortious injury in this state by an act or omission outside this state if the person regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;(5) Causing injury in this state to any person by breach of warranty expressly or impliedly made in the sale of goods outside this state when the person to be served might reasonably have expected the person who was injured to use, consume, or be affected by the goods in this state, provided that the person to be served also regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;(6) Having an interest in, using, or possessing real property in this state;(7) Contracting to insure any person, property, or risk located within this state at the time of contracting;(8) Living in the marital relationship within this state notwithstanding subsequent departure from this state, as to all obligations arising for spousal support, custody, child support, or property settlement, if the other party to the marital relationship continues to reside in this state;(9) Causing tortious injury in this state to any person by an act outside this state committed with the purpose of injuring persons, when the person to be served might reasonably have expected that some person would be injured by the act in this state;(10) Causing tortious injury to any person by a criminal act, any element of which takes place in this state, that the person to be served commits or in the commission of which the person to be served is guilty of complicity.(B) Methods of service.(1) Service by certified or express mail. Evidenced by return receipt signed by any person, service of any process shall be by certified or express mail unless otherwise permitted by these rules. The clerk shall place a copy of the process and complaint or other document to be served in an envelope. The clerk shall address the envelope to the person to be served at the address set forth in the caption or at the address set forth in written instructions furnished to the clerk with instructions to forward. The clerk shall affix adequate postage and place the sealed envelope in the United States mail as certified or express mail return receipt requested with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. The clerk shall forthwith enter the fact of mailing on the appearance docket and make a similar entry when the return receipt is received. If the envelope is returned with an endorsement showing failure of delivery, the clerk shall forthwith notify, by mail, the attorney of record or, if there is no attorney of record, the party at whose instance process was issued and enter the fact of notification on the appearance docket. The clerk shall file the return receipt or returned envelope in the records of the action. If the envelope is returned with an endorsement showing failure of delivery, service is complete when the attorney or serving party, after notification by the clerk, files with the clerk an affidavit setting forth facts indicating the reasonable diligence utilized to ascertain the whereabouts of the party to be served. All postage shall be charged to costs. If the parties to be served by certified or express mail are numerous and the clerk determines there is insufficient security for costs, the clerk may require the party requesting service to advance an amount estimated by the clerk to be sufficient to pay the postage.(2) Personal service. When ordered by the court, a “person” as defined in division (A) of this rule may be personally served with a copy of the process and complaint or other document to be served. Service under this division may be made by any person not less than eighteen years of age who is not a party and who has been designated by order of the court. On request, the clerk shall deliver the summons to the plaintiff for transmission to the person who will make the service. Proof of service may be made as prescribed by Civ. R. 4.1 (B) or by order of the court.[Adopted eff. 7-1-70; amended eff. 7-1-71, 7-1-80, 7-1-88, 7-1-91, 7-1-97]Rule 4.4 Process: Service by Publication(A) Residence unknown.(1) Except in an action governed by division (A)(2) of this rule, if the residence of a defendant is unknown, service shall be made by publication in actions where such service is authorized by law. Before service by publication can be made, an affidavit of a party or his counsel shall be filed with the court. The affidavit shall aver that service of summons cannot be made because the residence of the defendant is unknown to the affiant, all of the efforts made on behalf of the party to ascertain the residence of the defendant, and that the residence of the defendant cannot be ascertained with reasonable diligence. Upon the filing of the affidavit, the clerk shall cause service of notice to be made by publication in a newspaper of general circulation in the county in which the complaint is filed. If no newspaper is published in that county, then publication shall be in a newspaper published in an adjoining county. The publication shall contain the name and address of the court, the case number, the name of the first party on each side, and the name and last known address, if any, of the person or persons whose residence is unknown. The publication also shall contain a summary statement of the object of the complaint and demand for relief, and shall notify the person to be served that he or she is required to answer within twenty-eight days after the publication. The publication shall be published at least once a week for six successive weeks unless publication for a lesser number of weeks is specifically provided by law. Service shall be complete at the date of the last publication. After the last publication, the publisher or its agent shall file with the court an affidavit showing the fact of publication together with a copy of the notice of publication. The affidavit and copy of the notice shall constitute proof of service.(2) In a divorce, annulment, or legal separation action, if the plaintiff is proceeding in forma pauperis and if the residence of the defendant is unknown, service by publication shall be made by posting and mail. Before service by posting and mail can be made, an affidavit of a party or the party’s counsel shall be filed with the court. The affidavit shall contain the same averments required by division (A)(1) of this rule and, in addition, shall set forth the defendant’s last known address. Upon the filing of the affidavit, the clerk shall cause service of notice to be made by posting in a conspicuous place in the courthouse or courthouses in which the general and domestic relations divisions of the court of common pleas for the county are located and in two additional public places in the county that have been designated by local rule for the posting of notices pursuant to this rule. The notice shall contain the same information required by division (A)(1) of this rule to be contained in a newspaper publication. The notice shall be posted in the required locations for six successive weeks. The clerk shall also cause the complaint and summons to be mailed by ordinary mail, address correction requested, to the defendant’s last known address. The clerk shall obtain a certificate of mailing from the United States Postal Service. If the clerk is notified of a corrected or forwarding address of the defendant within the six-week period that notice is posted pursuant to division (A)(2) of this rule, the clerk shall cause the complaint and summons to be mailed to the corrected or forwarding address. The clerk shall note the name, address, and date of each mailing in the docket. After the last week of posting, the clerk shall note on the docket where and when notice was posted. Service shall be complete upon the entry of posting.(B) Residence known. If the residence of a defendant is known, and the action is one in which service by publication is authorized by law, service of process shall be effected by a method other than by publication as provided by:(1) Rule 4.1, if the defendant is a resident of this state,(2) Rule 4.3(B) if defendant is not a resident of this state, or(3) Rule 4.5, in the alternative, if service on defendant is to be effected in a foreign country. If service of process cannot be effected under the provisions of this subdivision or Rule 4.6(C) or Rule 4.6(D), service of process shall proceed by publication. [Adopted eff. 7-1-70; amended eff. 7-1-71, 7-1-91]Rule 4.5 Process: Alternative Provisions for Service in a Foreign Country(A) Manner. When Civ. R. 4.3 or Civ. R. 4.4 or both allow service upon a person outside this state and service is to be effected in a foreign country, service of the summons and complaint may also be made:(1) 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 when service is calculated to give actual notice;(2) As directed by the foreign authority in response to a letter rogatory when service is calculated to give actual notice;(3) Upon an individual by delivery to him personally;(4) Upon a corporation or partnership or association by delivery to an officer, a managing or general agent;(5) By any form of mail requiring a signed receipt, when the clerk of the court addresses and dispatches this mail to the party to be served;(6) As directed by order of the court. Service under division (A)(3) or (A)(6) of this rule may be made by any person not less than eighteen years of age who is not a party and who has been designated by order of the court, or by the foreign court. On request the clerk shall deliver the summons to the plaintiff for transmission to the person or the foreign court or officer who will make the service.(B) Return.Proof of service may be made as prescribed by Civ. R. 4.1(B), or by the law of the foreign country, or by order of the court. When mail service is made pursuant to division (A)(5) of this rule, proof of service shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court. [Adopted eff. 7-1-70; amended eff. 7-1-97]Rule 4.6 Process: Limits; Amendment; Service Refused; Service Unclaimed(A) Limits of effective service. All process may be served anywhere in this state and, when authorized by law or these rules, may be served outside this state.(B) Amendment. The court within its discretion and upon such terms as are just, may at any time allow the amendment of any process or proof of service thereof, unless the amendment would cause material prejudice to the substantial rights of the party against whom the process was issued.(C) Service refused. If service of process is refused, and the certified or express mail envelope is returned with an endorsement showing such refusal, or the return of the person serving process states that service of process has been refused, the clerk shall forthwith notify, by mail, the attorney of record or, if there is no attorney of record, the party at whose instance process was issued. If the attorney, or serving party, after notification by the clerk, files with the clerk a written request for ordinary mail service, the clerk shall send by ordinary mail a copy of the summons and complaint or other document to be served to the defendant at the address set forth in the caption, or at the address set forth in written instructions furnished to the clerk. The mailing shall be evidenced by a certificate of mailing which shall be completed and filed by the clerk. Answer day shall be twenty-eight days after the date of mailing as evidenced by the certificate of mailing. The clerk shall endorse this answer date upon the summons which is sent by ordinary mail. Service shall be deemed complete when the fact of mailing is entered of record. Failure to claim certified or express mail service is not refusal of service within the meaning of division (C) of this rule.(D) Service unclaimed. If a certified or express mail envelope is returned with an endorsement showing that the envelope was unclaimed, the clerk shall forthwith notify, by mail, the attorney of record or, if there is no attorney of record, the party at whose instance process was issued. If the attorney, or serving party, after notification by the clerk, files with the clerk a written request for ordinary mail service, the clerk shall send by ordinary mail a copy of the summons and complaint or other document to be served to the defendant at the address set forth in the caption, or at the address set forth in written instructions furnished to the clerk. The mailing shall be evidenced by a certificate of mailing which shall be completed and filed by the clerk. Answer day shall be twenty-eight days after the date of mailing as evidenced by the certificate of mailing. The clerk shall endorse this answer date upon the summons which is sent by ordinary mail. Service shall be deemed complete when the fact of mailing is entered of record, provided that the ordinary mail envelope is not returned by the postal authorities with an endorsement showing failure of delivery. If the ordinary mail envelope is returned undelivered, the clerk shall forthwith notify the attorney, or serving party, by mail.(E) Duty of attorney of record or serving party. The attorney of record or the serving party shall be responsible for determining if service has been made and shall timely file written instructions with the clerk regarding completion of service notwithstanding the provisions in Civ. R. 4.1 through 4.6 which instruct a clerk to notify the attorney of record or the serving party of failure of service of process. [Adopted eff. 7-1-70; amended eff. 7-1-71, 7-1-78, 7-1-97]Rule 45. Subpoena(A) Form; Issuance.(1) Every subpoena shall do all of the following:(a) state the name of the court from which it is issued, the title of the action, and the case number;(b) command each person to whom it is directed, at a time and place specified in the subpoena, to:(i) attend and give testimony at a trial, hearing, or deposition;(ii) produce documents or tangible things at a trial, hearing, or deposition;(iii) produce and permit inspection and copying of any designated documents that are in the possession, custody, or control of the person;(iv) produce and permit inspection and copying, testing, or sampling of any tangible things that are in the possession, custody, or control of the person; or(v) permit entry upon designated land or other property that is in the possession or control of the person for the purposes described in Civ. R. 34(A)(3)(c) set forth the text of divisions (C) and (D) of this rule. A command to produce and permit inspection may be joined with a command to attend and give testimony, or may be issued separately. A subpoena may not be used to obtain the attendance of a party or the production of documents by a party in discovery. Rather, a party’s attendance at a deposition may be obtained only by notice under Civ. R. 30, and documents may be obtained from a party in discovery only pursuant to Civ. R. 34.(c) set forth the text of divisions (C) and (D) of this rule. A command to produce and permit inspection may be joined with a command to attend and give testimony, or may be issued separately. A subpoena may not be used to obtain the attendance of a party or the production of documents by a party in discovery. Rather, a party’s attendance at a deposition may be obtained only by notice under Civ. R. 30, and documents may be obtained from a party in discovery only pursuant to Civ. R. 34.(2) The clerk shall issue a subpoena, signed, but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney who has filed an appearance on behalf of a party in an action may also sign and issue a subpoena on behalf of the court in which the action is pending.(3) If the issuing attorney modifies the subpoena in any way, the issuing attorney shall give prompt notice of the modification to all other parties.(B) Service. A subpoena may be served by a sheriff, bailiff, coroner, clerk of court, constable, or a deputy of any, by an attorney at law, or by any other person designated by order of court who is not a party and is not less than eighteen years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy of the subpoena to the person, by reading it to him or her in person, or by leaving it at the person’s usual place of residence, and by tendering to the person upon demand the fees for one day’s attendance and the mileage allowed by law. The person serving the subpoena shall file a return of the subpoena with the clerk. If the witness being subpoenaed resides outside the county in which the court is located, the fees for one day’s attendance and mileage shall be tendered without demand. The return may be forwarded through the postal service or otherwise.Case Note:A subpoena is validly served when it is sent by regular mail to the witness’ residence and the witness has actual knowledge of it. State v. Castle, 92 O.App.3d 732, 637 N.E.2d 80 (1994).(C) Protection of persons subject to subpoenas..(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena.(2)(a) A person commanded to produce under divisions (A)(1)(b)(ii), (iii), (iv), or (v) of this rule need not appear in person at the place of production or inspection unless commanded to attend and give testimony at a deposition, hearing, or trial.(b) Subject to division (D)(2) of this rule, a person commanded to produce under divisions (A)(1)(b)(ii), (iii), (iv), or (v) of this rule may, within fourteen days after service of the subpoena or before the time specified for compliance if such time is less than fourteen days after service, serve upon the party or attorney designated in the subpoena written objections to production. If objection is made, the party serving the subpoena shall not be entitled to production except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena, upon notice to the person commanded to produce, may move at any time for an order to compel the production. 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 production commanded.(3) On timely motion, the court from which the subpoena was issued shall quash or modify the subpoena, or order appearance or production only under specified conditions, if the subpoena does any of the following:(a) Fails to allow reasonable time to comply;(b) Requires disclosure of privileged or otherwise protected matter and no exception or waiver applies;(c) Requires disclosure of a fact known or opinion held by an expert not retained or specially employed by any party in anticipation of litigation or preparation for trial as described by Civ. R. 26(B)(4), if the fact or opinion does not describe specific events or occurrences in dispute and results from study by that expert that was not made at the request of any party;(d) Subjects a person to undue burden.(4) Before filing a motion pursuant to division (C)(3)(d) of this rule, a person resisting discovery under this rule shall attempt to resolve any claim of undue burden through discussions with the issuing attorney. A motion filed pursuant to division (C)(3)(d) of this rule shall be supported by an affidavit of the subpoenaed person or a certificate of that person’s attorney of the efforts made to resolve any claim of undue burden.(5) If a motion is made under division (C)(3)(c) or (C)(3)(d) of this rule, the court shall quash or modify the subpoena unless the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated.(D) Duties in responding to subpoena.(1) A person responding to a subpoena to produce documents shall, at the person’s option, produce them as they are kept in the usual course of business or organized and labeled to correspond with the categories in the subpoena. A person producing documents pursuant to a subpoena for them shall permit their inspection and copying by all parties present at the time and place set in the subpoena for inspection and copying.(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials under Civ. R. 26(B)(3) or (4), the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.(E) Sanctions. 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. A subpoenaed person or that person’s attorney who frivolously resists discovery under this rule may be required by the court to pay the reasonable expenses, including reasonable attorney’s fees, of the party seeking the discovery. The court from which a subpoena was issued may impose upon a party or attorney in breach of the duty imposed by division (C)(1) of this rule an appropriate sanction, which may include, but is not limited to, lost earnings and reasonable attorney’s fees.(F) Privileges.Nothing in this rule shall be construed to authorize a party to obtain information protected by any privilege recognized by law, or to authorize any person to disclose such information. [Adopted eff. 7-1-70; amended eff. 7-1-71, 7-1-72, 7-1-93, 7-1-94]

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Alabama Foreclosure Process Server Laws

By admin | April 9, 2010

Section 6-4-1

Time for execution and return.

All original and mesne process, notices, citations and motions or actions in the nature of scire facias shall be executed instanter and, unless otherwise provided by law, shall be returned immediately upon the execution thereof by the officer executing the same; and all executions and venditioni exponas issuing from a court shall be made returnable 90 days after the issue thereof.

Section 6-4-2

Execution â€” Adjoining county or any part of state.

When the summons, subpoena or other process issues to the sheriff of the county in which the defendant or person against whom the subpoena or other process is directed resides, he may execute it in an adjoining county if such parties are there found, or he may pursue them and execute it in any part of the state.

Section 6-4-3

Execution â€” Coroner or special coroner.

(a) When the office of sheriff is vacant and until his successor is qualified, when the sheriff is imprisoned or in cases in which the sheriff is a party, is interested or otherwise is incompetent to act, the summons must be directed to and executed by the coroner if such interest or cause appears on the face of the proceedings; and if such interest or cause does not appear on the face of the proceedings, the coroner must execute the summons, though directed to the sheriff, if the judge of probate, on proper showing by affidavit, directs the execution thereof by the coroner.

(b) When, in such cases, the coroner has not qualified or the office is vacant or when the coroner is absent from the county having no deputy therein, when the coroner is imprisoned or when he is a party to or interested in the action, the summons must be directed to and executed by a special coroner, to be appointed by the judge of probate.

Section 6-4-4

Commencement of action on Sunday.

Whenever the plaintiff shall make an affidavit that he is informed and believes that the defendant is about to abscond or to remove out of the state, or is about to secrete himself so that service cannot be had upon him on the following day, he shall be allowed to file his complaint in any of the courts of this state on Sunday. Upon the filing thereof, a summons shall immediately issue and be served by the sheriff upon the defendant on the same day of its issuance, and if he cannot be found on that day, then it shall be served as any other summons and complaint.

Section 6-4-20

Method generally.

Service of process, unless otherwise provided by law, shall be made as provided in the Alabama Rules of Civil Procedure.

Section 6-4-21

Where no other provision for service of nonresident minors or insane persons.

Should there be no other provision by law or rule for service upon nonresident minors or insane persons and proof is made before the clerk, register or judge of the court in which the proceeding is pending, he may direct in writing the mode of service or may appoint in writing a guardian ad litem for such person without service.

Section 6-4-22

Deposit of money for postage and registration.

In all cases where service is to be made by publication or registered or certified mail, a sufficient sum of money must be deposited in advance with the clerk or judge to cover the expenses of such publication or the postage and registration fee, as the case may be.

Section 6-4-1Time for execution and return.All original and mesne process, notices, citations and motions or actions in the nature of scire facias shall be executed instanter and, unless otherwise provided by law, shall be returned immediately upon the execution thereof by the officer executing the same; and all executions and venditioni exponas issuing from a court shall be made returnable 90 days after the issue thereof.

Section 6-4-2Execution â€” Adjoining county or any part of state.When the summons, subpoena or other process issues to the sheriff of the county in which the defendant or person against whom the subpoena or other process is directed resides, he may execute it in an adjoining county if such parties are there found, or he may pursue them and execute it in any part of the state.

Section 6-4-3Execution â€” Coroner or special coroner.(a) When the office of sheriff is vacant and until his successor is qualified, when the sheriff is imprisoned or in cases in which the sheriff is a party, is interested or otherwise is incompetent to act, the summons must be directed to and executed by the coroner if such interest or cause appears on the face of the proceedings; and if such interest or cause does not appear on the face of the proceedings, the coroner must execute the summons, though directed to the sheriff, if the judge of probate, on proper showing by affidavit, directs the execution thereof by the coroner.
(b) When, in such cases, the coroner has not qualified or the office is vacant or when the coroner is absent from the county having no deputy therein, when the coroner is imprisoned or when he is a party to or interested in the action, the summons must be directed to and executed by a special coroner, to be appointed by the judge of probate.

Section 6-4-4Commencement of action on Sunday.Whenever the plaintiff shall make an affidavit that he is informed and believes that the defendant is about to abscond or to remove out of the state, or is about to secrete himself so that service cannot be had upon him on the following day, he shall be allowed to file his complaint in any of the courts of this state on Sunday. Upon the filing thereof, a summons shall immediately issue and be served by the sheriff upon the defendant on the same day of its issuance, and if he cannot be found on that day, then it shall be served as any other summons and complaint.

Section 6-4-20Method generally.Service of process, unless otherwise provided by law, shall be made as provided in the Alabama Rules of Civil Procedure.

Section 6-4-21Where no other provision for service of nonresident minors or insane persons.Should there be no other provision by law or rule for service upon nonresident minors or insane persons and proof is made before the clerk, register or judge of the court in which the proceeding is pending, he may direct in writing the mode of service or may appoint in writing a guardian ad litem for such person without service.

Section 6-4-22Deposit of money for postage and registration.In all cases where service is to be made by publication or registered or certified mail, a sufficient sum of money must be deposited in advance with the clerk or judge to cover the expenses of such publication or the postage and registration fee, as the case may be.

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Arkansas Foreclosure Process Server Laws

By admin | April 9, 2010

Rule 4. Summons.

(a) Issuance. Upon the filing of the complaint, the clerk shall forthwith issue a summons and cause it to be delivered for service to a person authorized by this rule to serve process.

(b) Form. The summons shall be styled in the name of the court and shall be dated and signed by the clerk; be under the seal of the court; contain the names of the parties; be directed to the defendant; state the name and address of the plaintiff’s attorney, if any, otherwise the address of the plaintiff; and the time within which these rules require the defendant to appear, file a pleading, and defend and shall notify him that in case of his failure to do so, judgment by default may be entered against him for the relief demanded in the complaint.

(c) By Whom Served. Service of summons shall be made by (1) a sheriff of the county where the service is to be made, or his or her deputy, unless the sheriff is a party to the action; (2) any person not less than eighteen years of age appointed for the purpose of serving summons by either the court in which the action is filed or a court in the county in which service is to be made; (3) any person authorized to serve process under the law of the place outside this state where service is made; or (4) in the event of service by mail or commercial delivery company pursuant to subdivision (d)(8) of this rule, by the plaintiff or an attorney of record for the plaintiff.

(d) Personal Service Inside the State. A copy of 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 upon any person designated by statute to receive service or as follows:

(1) Upon an individual, other than an infant by delivering a copy of the summons and complaint to him personally, or if he refuses to receive it, by offering a copy thereof to him, or by leaving a copy thereof at his dwelling house or usual place of abode with some person residing therein who is at least 14 years of age, or by delivering a copy thereof to an agent authorized by appointment or by law to receive service of summons.

(2) When the defendant is under the age of 14 years, service must be upon a parent or guardian having the care and control of the infant, or upon any other person having the care and control of the infant and with whom the infant lives. When the infant is at least 14 years of age, service shall be upon him.

(3) Where the defendant is a person for whom a plenary, limited or temporary guardian has been appointed, the service must be upon the individual and the guardian. If the person for whom the guardian has been appointed is confined in a public or private institution for the treatment of the mentally ill, service shall be upon the superintendent or administrator of such institution and upon the guardian.

(4) Where the defendant is incarcerated in any jail, penitentiary, or other correctional facility in this state, service must be upon the keeper or superintendent of the institution, who shall deliver a copy of the summons and complaint to the defendant. A copy of the summons and complaint shall also be sent to the defendant by first class mail and marked as “legal mail” and, unless the court otherwise directs, to the defendant’s spouse, if any.

(5) Upon a domestic or foreign corporation or upon a partnership, limited liability company, or any unincorporated association subject to suit under a common name, by delivering a copy of the summons and complaint to an officer, partner other than a limited partner, managing or general agent, or any agent authorized by appointment or by law to receive service of summons.

(6) Upon the United States or any officer or agency thereof, by service upon any person and in such manner as is authorized by the Federal Rules of Civil Procedure or by other federal law.

(7) Upon a state or municipal corporation or other governmental organization or agency thereof, subject to suit, by delivering a copy of the summons and complaint to the chief executive officer thereof, or other person designated by appointment or by statute to receive such service, or upon the Attorney General of the state if such service is accompanied by an affidavit of a party or his attorney that such officer or designated person is unknown or cannot be located.

(8)(A) Service of a summons and complaint upon a defendant of any class referred to in paragraphs (1) through (5), and (7) of this subdivision of this rule may be made by the plaintiff or an attorney of record for the plaintiff by any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee. The addressee must be a natural person specified by name. Service pursuant to this paragraph shall not be the basis for the entry of a default or judgment by default unless the record contains a return receipt signed by the addressee or the agent of the addressee or a returned envelope, postal document or affidavit by a postal employee reciting or showing refusal of the process by the addressee. If delivery of mailed process is refused, the plaintiff or attorney making such service, promptly upon receipt of notice of such refusal, shall mail to the defendant by first class mail a copy of the summons and complaint and a notice that despite such refusal the case will proceed and that judgment by default may be rendered against him unless he appears to defend the suit. Any such default or judgment by default may be set aside pursuant to Rule 55 (c) if the addressee demonstrates to the court that the return receipt was signed or delivery was refused by someone other than the addressee.

(B) Alternatively, service of a summons and complaint upon a defendant of any class referred to in paragraphs (1)-(5) and (7) of this subdivision of this rule may be made by the plaintiff by mailing a copy of the summons and the complaint by first-class mail, postage prepaid, to the person to be served, together with two copies of a notice and acknowledgement conforming substantially to a form adopted by the Supreme Court and a return envelope, postage prepaid, addressed to the sender. If no acknowledgement of service is received by the sender within twenty days after the date of mailing, service of such summons and complaint shall be made pursuant to subdivision (c)(1)-(3) of this rule in the manner prescribed by subdivisions (d)(1)-(5) and (d)(7). 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 twenty days after mailing, the notice and acknowledgement of receipt of summons. The notice and acknowledgement of receipt of summons and complaint shall be executed under oath or affirmation.

(C) Service of a summons and complaint upon a defendant of any class referred to in paragraphs (1) through (5) and (7) of this subdivision may also be made by the plaintiff or an attorney of record for the plaintiff using a commercial delivery company that (i) maintains permanent records of actual delivery, and (ii) has been approved by the circuit court in which the action is filed or in the county where service is to be made. The summons and complaint must be delivered to the defendant or an agent authorized to receive service of process on behalf of the defendant. The signature of the defendant or agent must be obtained. Service pursuant to this paragraph shall not be the basis for a judgment by default unless the record reflects actual delivery on and the signature of the defendant or agent, or an affidavit by an employee of an approved commercial delivery company reciting or showing refusal of the process by the defendant or agent. If delivery of process is refused, the plaintiff or attorney making such service, promptly upon receipt of notice of such refusal, shall mail to the defendant by first class mail a copy of the summons and complaint and a notice that despite such refusal the case will proceed and that judgment by default may be rendered against the defendant unless he or she appears to defend the suit. A judgment by default may be set aside pursuant to Rule 55(c) if the court finds that someone other than the defendant or agent signed the receipt or refused the delivery or that the commercial delivery company had not been approved as required by this subdivision.

(e) Other Service. Whenever the law of this state authorizes service outside this state, the service, when reasonably calculated to give actual notice, may be made:

(1) By personal delivery in the same manner prescribed for service within this state;

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

(3) By mail as provided in subdivision (d)(8) of this rule;

(4) As directed by a foreign authority in response to a letter rogatory or pursuant to the provisions of any treaty or convention pertaining to the service of a document in a foreign country;

(5) As directed by the court.

(f) Service by Warning Order. (1) If it appears by the affidavit of a party seeking judgment or his or her attorney that, after diligent inquiry, the identity or whereabouts of a defendant remains unknown, or if a party seeks a judgment that affects or may affect the rights of persons who are not and who need not be subject personally to the jurisdiction of the court, service shall be by warning order issued by the clerk. This subdivision shall not apply to actions against unknown tortfeasors.

(2) The warning order shall state the caption of the pleadings; include, if applicable, a description of the property or other res to be affected by the judgment; and warn the defendant or interested person to appear within 30 days from the date of first publication of the warning order or face entry of judgment by default or be otherwise barred from asserting his or her interest. The party seeking judgment shall cause the warning order to be published weekly for two consecutive weeks in a newspaper having general circulation in the county where the action is filed and to be mailed, with a copy of the complaint, to the defendant or interested person at his or her last known address by any form of mail with delivery restricted to the addressee or the agent of the addressee.

(3) If the party seeking judgment has been granted leave to proceed as an indigent without prepayment of costs, the clerk shall conspicuously post the warning order for a continuous period of 30 days at the courthouse or courthouses of the county wherein the action is filed. The party seeking judgment shall cause the warning order to be mailed, with a copy of the complaint, to the defendant or interested person as provided in paragraph (2). Newspaper publication of the warning order is not required.

(4) No judgment by default shall be taken pursuant to this subdivision unless the party seeking the judgment or his or her attorney has filed with the court an affidavit stating that 30 days have elapsed since the warning order was first published as provided in paragraph (2) or posted at the courthouse pursuant to paragraph (3). If a defendant or other interested person is known to the party seeking judgment or to his or her attorney, the affidavit shall also state that 30 days have elapsed since a letter enclosing a copy of the warning order and the complaint was mailed to the defendant or other interested person as provided in this subdivision.

(g) Proof of Service. The person effecting service shall make proof thereof to the clerk within the time during which the person served must respond to the summons. If service is made by a sheriff or his deputy, proof may be made by executing a certificate of service or return contained in the same document as the summons. If service is made by a person other than a sheriff or his deputy, the person shall make affidavit thereof, and if service has been by mail or commercial delivery company, shall attach to the affidavit a return receipt, envelope, affidavit or other writing required by Rule 4(d)(8). Proof of service in a foreign country, if effected pursuant to the provisions of a treaty or convention as provided in Rule 4(e)(4), shall be made in accordance with the applicable treaty or convention.

(h) Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any summons 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 summons is issued.

(i) Time Limit for Service. If service of the summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s initiative. If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause. If service is made by mail pursuant to this rule, service shall be deemed to have been made for the purpose of this provision as of the date on which the process was accepted or refused. This paragraph shall not apply to service in a foreign country pursuant to Rule 4(e) or to complaints filed against unknown tortfeasors.

(j) Service of Other Writs and Papers. Whenever any rule or statute requires service upon any person, firm, corporation or other entity of notices, writs, or papers other than a summons and complaint, including without limitation writs of garnishment, such notices, writs or papers may be served in the manner prescribed in this rule for service of a summons and complaint. Provided, however, any writ, notice or paper requiring direct seizure of property, such as a writ of assistance, writ of execution, or order of delivery shall be made as otherwise provided by law.

Rule 4. Summons.
(a) Issuance. Upon the filing of the complaint, the clerk shall forthwith issue a summons and cause it to be delivered for service to a person authorized by this rule to serve process.
(b) Form. The summons shall be styled in the name of the court and shall be dated and signed by the clerk; be under the seal of the court; contain the names of the parties; be directed to the defendant; state the name and address of the plaintiff’s attorney, if any, otherwise the address of the plaintiff; and the time within which these rules require the defendant to appear, file a pleading, and defend and shall notify him that in case of his failure to do so, judgment by default may be entered against him for the relief demanded in the complaint.
(c) By Whom Served. Service of summons shall be made by (1) a sheriff of the county where the service is to be made, or his or her deputy, unless the sheriff is a party to the action; (2) any person not less than eighteen years of age appointed for the purpose of serving summons by either the court in which the action is filed or a court in the county in which service is to be made; (3) any person authorized to serve process under the law of the place outside this state where service is made; or (4) in the event of service by mail or commercial delivery company pursuant to subdivision (d)(8) of this rule, by the plaintiff or an attorney of record for the plaintiff.
(d) Personal Service Inside the State. A copy of 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 upon any person designated by statute to receive service or as follows:
(1) Upon an individual, other than an infant by delivering a copy of the summons and complaint to him personally, or if he refuses to receive it, by offering a copy thereof to him, or by leaving a copy thereof at his dwelling house or usual place of abode with some person residing therein who is at least 14 years of age, or by delivering a copy thereof to an agent authorized by appointment or by law to receive service of summons.
(2) When the defendant is under the age of 14 years, service must be upon a parent or guardian having the care and control of the infant, or upon any other person having the care and control of the infant and with whom the infant lives. When the infant is at least 14 years of age, service shall be upon him.
(3) Where the defendant is a person for whom a plenary, limited or temporary guardian has been appointed, the service must be upon the individual and the guardian. If the person for whom the guardian has been appointed is confined in a public or private institution for the treatment of the mentally ill, service shall be upon the superintendent or administrator of such institution and upon the guardian.
(4) Where the defendant is incarcerated in any jail, penitentiary, or other correctional facility in this state, service must be upon the keeper or superintendent of the institution, who shall deliver a copy of the summons and complaint to the defendant. A copy of the summons and complaint shall also be sent to the defendant by first class mail and marked as “legal mail” and, unless the court otherwise directs, to the defendant’s spouse, if any.
(5) Upon a domestic or foreign corporation or upon a partnership, limited liability company, or any unincorporated association subject to suit under a common name, by delivering a copy of the summons and complaint to an officer, partner other than a limited partner, managing or general agent, or any agent authorized by appointment or by law to receive service of summons.
(6) Upon the United States or any officer or agency thereof, by service upon any person and in such manner as is authorized by the Federal Rules of Civil Procedure or by other federal law.
(7) Upon a state or municipal corporation or other governmental organization or agency thereof, subject to suit, by delivering a copy of the summons and complaint to the chief executive officer thereof, or other person designated by appointment or by statute to receive such service, or upon the Attorney General of the state if such service is accompanied by an affidavit of a party or his attorney that such officer or designated person is unknown or cannot be located.
(8)(A) Service of a summons and complaint upon a defendant of any class referred to in paragraphs (1) through (5), and (7) of this subdivision of this rule may be made by the plaintiff or an attorney of record for the plaintiff by any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee. The addressee must be a natural person specified by name. Service pursuant to this paragraph shall not be the basis for the entry of a default or judgment by default unless the record contains a return receipt signed by the addressee or the agent of the addressee or a returned envelope, postal document or affidavit by a postal employee reciting or showing refusal of the process by the addressee. If delivery of mailed process is refused, the plaintiff or attorney making such service, promptly upon receipt of notice of such refusal, shall mail to the defendant by first class mail a copy of the summons and complaint and a notice that despite such refusal the case will proceed and that judgment by default may be rendered against him unless he appears to defend the suit. Any such default or judgment by default may be set aside pursuant to Rule 55 (c) if the addressee demonstrates to the court that the return receipt was signed or delivery was refused by someone other than the addressee.
(B) Alternatively, service of a summons and complaint upon a defendant of any class referred to in paragraphs (1)-(5) and (7) of this subdivision of this rule may be made by the plaintiff by mailing a copy of the summons and the complaint by first-class mail, postage prepaid, to the person to be served, together with two copies of a notice and acknowledgement conforming substantially to a form adopted by the Supreme Court and a return envelope, postage prepaid, addressed to the sender. If no acknowledgement of service is received by the sender within twenty days after the date of mailing, service of such summons and complaint shall be made pursuant to subdivision (c)(1)-(3) of this rule in the manner prescribed by subdivisions (d)(1)-(5) and (d)(7). 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 twenty days after mailing, the notice and acknowledgement of receipt of summons. The notice and acknowledgement of receipt of summons and complaint shall be executed under oath or affirmation.
(C) Service of a summons and complaint upon a defendant of any class referred to in paragraphs (1) through (5) and (7) of this subdivision may also be made by the plaintiff or an attorney of record for the plaintiff using a commercial delivery company that (i) maintains permanent records of actual delivery, and (ii) has been approved by the circuit court in which the action is filed or in the county where service is to be made. The summons and complaint must be delivered to the defendant or an agent authorized to receive service of process on behalf of the defendant. The signature of the defendant or agent must be obtained. Service pursuant to this paragraph shall not be the basis for a judgment by default unless the record reflects actual delivery on and the signature of the defendant or agent, or an affidavit by an employee of an approved commercial delivery company reciting or showing refusal of the process by the defendant or agent. If delivery of process is refused, the plaintiff or attorney making such service, promptly upon receipt of notice of such refusal, shall mail to the defendant by first class mail a copy of the summons and complaint and a notice that despite such refusal the case will proceed and that judgment by default may be rendered against the defendant unless he or she appears to defend the suit. A judgment by default may be set aside pursuant to Rule 55(c) if the court finds that someone other than the defendant or agent signed the receipt or refused the delivery or that the commercial delivery company had not been approved as required by this subdivision.
(e) Other Service. Whenever the law of this state authorizes service outside this state, the service, when reasonably calculated to give actual notice, may be made:
(1) By personal delivery in the same manner prescribed for service within this state;
(2) In any manner prescribed by the law of the place in which service is made in that place in an action in any of its courts of general jurisdiction;
(3) By mail as provided in subdivision (d)(8) of this rule;
(4) As directed by a foreign authority in response to a letter rogatory or pursuant to the provisions of any treaty or convention pertaining to the service of a document in a foreign country;
(5) As directed by the court.
(f) Service by Warning Order. (1) If it appears by the affidavit of a party seeking judgment or his or her attorney that, after diligent inquiry, the identity or whereabouts of a defendant remains unknown, or if a party seeks a judgment that affects or may affect the rights of persons who are not and who need not be subject personally to the jurisdiction of the court, service shall be by warning order issued by the clerk. This subdivision shall not apply to actions against unknown tortfeasors.
(2) The warning order shall state the caption of the pleadings; include, if applicable, a description of the property or other res to be affected by the judgment; and warn the defendant or interested person to appear within 30 days from the date of first publication of the warning order or face entry of judgment by default or be otherwise barred from asserting his or her interest. The party seeking judgment shall cause the warning order to be published weekly for two consecutive weeks in a newspaper having general circulation in the county where the action is filed and to be mailed, with a copy of the complaint, to the defendant or interested person at his or her last known address by any form of mail with delivery restricted to the addressee or the agent of the addressee.
(3) If the party seeking judgment has been granted leave to proceed as an indigent without prepayment of costs, the clerk shall conspicuously post the warning order for a continuous period of 30 days at the courthouse or courthouses of the county wherein the action is filed. The party seeking judgment shall cause the warning order to be mailed, with a copy of the complaint, to the defendant or interested person as provided in paragraph (2). Newspaper publication of the warning order is not required.
(4) No judgment by default shall be taken pursuant to this subdivision unless the party seeking the judgment or his or her attorney has filed with the court an affidavit stating that 30 days have elapsed since the warning order was first published as provided in paragraph (2) or posted at the courthouse pursuant to paragraph (3). If a defendant or other interested person is known to the party seeking judgment or to his or her attorney, the affidavit shall also state that 30 days have elapsed since a letter enclosing a copy of the warning order and the complaint was mailed to the defendant or other interested person as provided in this subdivision.
(g) Proof of Service. The person effecting service shall make proof thereof to the clerk within the time during which the person served must respond to the summons. If service is made by a sheriff or his deputy, proof may be made by executing a certificate of service or return contained in the same document as the summons. If service is made by a person other than a sheriff or his deputy, the person shall make affidavit thereof, and if service has been by mail or commercial delivery company, shall attach to the affidavit a return receipt, envelope, affidavit or other writing required by Rule 4(d)(8). Proof of service in a foreign country, if effected pursuant to the provisions of a treaty or convention as provided in Rule 4(e)(4), shall be made in accordance with the applicable treaty or convention.
(h) Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any summons 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 summons is issued.
(i) Time Limit for Service. If service of the summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s initiative. If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause. If service is made by mail pursuant to this rule, service shall be deemed to have been made for the purpose of this provision as of the date on which the process was accepted or refused. This paragraph shall not apply to service in a foreign country pursuant to Rule 4(e) or to complaints filed against unknown tortfeasors.
(j) Service of Other Writs and Papers. Whenever any rule or statute requires service upon any person, firm, corporation or other entity of notices, writs, or papers other than a summons and complaint, including without limitation writs of garnishment, such notices, writs or papers may be served in the manner prescribed in this rule for service of a summons and complaint. Provided, however, any writ, notice or paper requiring direct seizure of property, such as a writ of assistance, writ of execution, or order of delivery shall be made as otherwise provided by law.

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Kentucky Foreclosure Process Server Laws

By admin | April 9, 2010

Rule 4. Process.

Rule 4.01. Summons – Issuance – By whom served.

(1) Upon the filing of the complaint (or other initiating document) the clerk shall forthwith issue the required summons and, at the direction of the initiating party, either:
(a) Place a copy of the summons and complaint (or other initiating document) to be served in an envelope, address the envelope to the person to be served at the address set forth in the caption or at the address set forth in written instructions furnished by the initiating party, affix adequate postage, and place the sealed envelope in the United States mail as registered mail or certified mail return receipt requested with instructions to the delivering postal employee to deliver to the addressee only and show the address where delivered and the date of delivery. The clerk shall forthwith enter the facts of mailing on the docket and make a similar entry when the return receipt is received by him or her. If the envelope is returned with an endorsement showing failure of delivery, the clerk shall enter that fact on the docket. The clerk shall file the return receipt or returned envelope in the record. Service by registered mail or certified mail is complete only upon delivery of the envelope. The return receipt shall be proof of the time, place and manner of service. To the extent that the United States postal regulations permit authorized representatives of local, state, or federal governmental offices to accept and sign for “addressee only” mail, signature by such authorized representative shall constitute service on the officer. All postage shall be advanced by the initiating party and be recoverable as costs; or
(b) Cause the summons and complaint (or other initiating document), with necessary copies, to be transferred for service to any person authorized, other than by paragraph (1) of this Rule, to deliver them, who shall serve the summons and accompanying documents, and his return endorsed thereon shall be proof of the time and manner of service.
(2) A summons may be issued for service in any county, against any person to be served, and separate or additional summons may be issued against any person to be served at the request of the initiating party.
Rule 4.02. Summons – Form. The summons shall be issued in the name of the Commonwealth, be dated and signed by the clerk, contain the name of the court and the style and number of the action, and be directed to each defendant, notifying him that a legal action has been filed against him and that unless a written defense is made by him or by an attorney in his behalf within 20 days following the day on which the summons is served on him a judgment may issue against him for the relief demanded.
Rule 4.03. Summons – Return. The person serving the summons shall make proof thereof to the court promptly, and in any event within the time during which the person served must respond.
Rule 4.04. Personal service – Summons and initiating document.
(1) The summons and complaint (or other initiating document) shall be served together. The initiating party shall furnish the person making service with such copies as may be necessary.
(2) Service shall be made upon an individual within this Commonwealth; other than an unmarried infant or person of unsound mind, by delivering a copy of the summons and of the complaint (or other initiating document) to him personally or, if acceptance is refused by offering personal delivery to such person, or by delivering a copy of the summons and of the complaint (or other initiating document) to an agent authorized by appointment or by law to receive service of process for such an individual.
(3) Service shall be made upon an unmarried infant or a person of unsound mind by serving his resident guardian or committee if there is one known to the plaintiff or, if none, by serving either his father or mother within this state or, if none, by serving the person within this state having control of such individual. If there are no such persons enumerated above, the clerk shall appoint a practicing attorney as guardian ad litem who shall be served. If any of the persons directed by this section to be served is a plaintiff, the person who stands first in the order named who is not a plaintiff shall be served.
(4) Service shall be made upon a partnership or unincorporated association subject to suit under a common name by serving a partner or managing agent of the partnership or an officer or managing agent of the association, or an agent authorized by appointment or by law to receive service on its behalf.
(5) Service shall be made upon a partnership or unincorporated association subject to suit under a common name by serving a partner or managing agent of the partnership or an officer or managing agent of the association, or an agent authorized by appointment or by law to receive service on its behalf.
(6) Service shall be made upon the Commonwealth or any agency thereof by serving the Attorney-General or any assistant attorney-general.
(7) Service shall be made upon a county by serving the county judge or, if he is absent from the county, the county attorney. Service shall be made upon a city by serving the chief executive officer thereof or an official attorney thereof. Service on any public board or other such body, except state agencies, shall be made by serving a member thereof.
(8) Service may be made upon an individual out of this state, other than an unmarried infant, a person of unsound mind or a prisoner, either by certified mail in the manner prescribed in Rule 4.01 (1) (a) or by personal delivery of a copy of the summons and of the complaint (or other initiating document) by a person over 18 years of age. Proof of service shall be made either by the return receipt mentioned in Rule 4.01 (1) (a) or by affidavit of the person making such service, upon or appended to the summons, stating the time and place of service and the fact that the individual served was personally known to him. Such service without an appearance shall not authorize a personal judgment, but for all other purposes the individual summoned shall be before the courts as in other cases of personal service.
(9) Service may be made 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 any action growing out of or connected with the business of such office or agency, by serving the person in charge thereof.
Case Note:
A company is not required by law to admit into its plant or shop a constable, deputy sheriff or any official qualified under the law to serve civil process for the purpose of serving civil process on an employee, and furthermore, if such official stays after a request to leave, he or she could be trespassing, nor does it make a difference if the summons is in connection with a civil or divorce action. Opinion of the Attorney General 79-123.
Rule 4.05. Parties who may be constructively served.
If a party sought to be summoned is: (a) an individual who is a nonresident of this state and known or believed to be absent therefrom, or (b) a corporation or a partnership or unincorporated association which is subject to suit under a common name, having no agent in this state known to the plaintiff upon whom a summons may be lawfully served, or (c) an individual who has been absent from the state for four months or who has departed therefrom with the intent to delay or defraud his creditors, or (d) an individual who has left the county of his residence to avoid the service of a summons or has so concealed himself that a summons cannot be served upon him, or (e) an individual whose name or place of residence is unknown to the plaintiff; the clerk shall forthwith, subject to the provisions of Rule 4.06, make an order upon the complaint warning the party to appear and defend the action within 50 days.
Rule 45.01. For attendance of witnesses – Form – Issuance.
Every subpoena shall be issued by the clerk or other authorized officer, 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 or other authorized officer shall issue a subpoena, or a subpoena for the production of documentary or other tangible evidence, signed but otherwise in blank, to a party requesting it, who shall fill it in before service. Subpoenas shall not be used for any purpose except to command the attendance of the witness and production of documentary or other tangible evidence at a deposition, hearing or trial. Upon order of the Court, with the agreement of the parties, documents may be produced without a deposition. (Amended October 1, 1991, effective November 15, 1991.)
Rule 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 (a) quash or modify the subpoena if it is unreasonable and oppressive or (b) 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.
(Amended October 18, 1977, effective January 1, 1978.)
Rule 45.03. Service [of subpoena].
(1) Service may be made upon an individual out of this state, other than an unmarried infant, a person of unsound mind or a prisoner, either by certified mail in the manner prescribed in Rule 4.01 (1) (a) or by personal delivery of a copy of the summons and of the complaint (or other initiating document) by a person over 18 years of age. Proof of service shall be made either by the return receipt mentioned in Rule 4.01 (1) (a) or by affidavit of the person making such service, upon or appended to the summons, stating the time and place of service and the fact that the individual served was personally known to him. Such service without an appearance shall not authorize a personal judgment, but for all other purposes the individual summoned shall be before the courts as in other cases of personal service.
(2) Copies of all documents received in response to the subpoena (or in lieu of proceedings thereunder) shall be forthwith furnished to all other parties to the action except on motion and for good cause shown. Any other tangible evidence received in response to the subpoena (or in lieu of proceedings thereunder) shall be forthwith made available for inspection by all other parties to the action.
(Amended October 1, 1991, effective November 15, 1991.)

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Michigan Foreclosure Process Server Laws

By admin | April 9, 2010

Rule 2.103 Process; Who may serve

(A) Service Generally. Process in civil actions may be served by any legally competent adult who is not a party or an officer of a corporate party.

(B) Service Requiring Seizure of Property. A writ of restitution or process requiring the seizure or attachment of property may only be served by

(1) a sheriff or deputy sheriff, or a bailiff or court officer appointed by the court for that purpose,

(2) an officer of the Department of State Police in an action in which the state is a party, or

(3) a police officer of an incorporated city or village in an action in which the city or village is a party. A writ of garnishment may be served by any person authorized by subrule (A).

(C) Service in a Governmental Institution. If personal service of process is to be made on a person in a governmental institution, hospital, or home, service must be made by the person in charge of the institution or by someone designated by that person.

(D) Process Requiring Arrest. Process in civil proceedings requiring the arrest of a person may be served only by a sheriff, deputy sheriff, or police officer, or by a court officer appointed by the court for that purpose.

Rule 2.104 Process; Proof of service

(A) Requirements. Proof of service may be made by

(1) written acknowledgment of the receipt of a summons and a copy of the complaint, dated and signed by the person to whom the service is directed or by a person authorized under these rules to receive the service of process;

(2) a certificate stating the facts of service, including the manner, time, date, and place of service, if service is made within the State of Michigan by

(a) a sheriff,

(b) a deputy sheriff or bailiff, if that officer holds office in the county in which the court issuing the process is held,

(d) an attorney for a party; or

(3) an affidavit stating the facts of service, including the manner, time, date, and place of service, and indicating the process server’s official capacity, if any. The place of service must be described by giving the address where the service was made or, if the service was not made at a particular address, by another description of the location.

(B) Failure to File. Failure to file proof of service does not affect the validity of the service.

(C) Publication, Posting, and Mailing. If the manner of service used requires sending a copy of the summons and complaint by mail, the party requesting issuance of the summons is responsible for arranging the mailing and filing proof of service. Proof of publication, posting, and mailing under MCR 2.106 is governed by MCR 2.106(G).

Rule 2.105 Process; Manner of service

(A) Individuals. Process may be served on a resident or nonresident individual by,

(1) delivering a summons and a copy of the complaint to the defendant personally; or

(2) sending a summons and a copy of the complaint by registered or certified mail, return receipt requested, and delivery restricted to the addressee. Service is made when the defendant acknowledges receipt of the mail. A copy of the return receipt signed by the defendant must be attached to proof showing service under subrule (A)(2).

(B) Individuals; Substituted Service. Service of process may be made

(1) on a nonresident individual, by

(a) serving a summons and a copy of the complaint in Michigan on an agent, employee, representative, sales representative, or servant of the defendant, and

(b) sending a summons and a copy of the complaint by registered mail addressed to the defendant at his or her last known address;

(2) on a minor, by serving a summons and a copy of the complaint on a person having care and control of the minor and with whom he or she resides;

(3) on a defendant for whom a guardian or conservator has been appointed and is acting, by serving a summons and a copy of the complaint on the guardian or conservator;

(4) on an individual doing business under an assumed name, by

(a) serving a summons and copy of the complaint on the person in charge of an office or business establishment of the individual, and

(b) sending a summons and a copy of the complaint by registered mail addressed to the individual at his or her usual residence or last known address.

Case Notes:

1. As a matter of public policy, courts want to avoid overuse of substitute service and default judgment it can cause. Sechler v. Van Hoey, 83 Mich.App. 252, 268 N.W.2d 364 (1978).

2. A truly diligent search for an absentee defendant is absolutely necessary to supply a fair foundation for and legitimacy to ordering of substituted service. Kreuger v. Williams, 300 N.W.2d 910 (Mich. 1981); appeal dismissed 101 S.Ct. 3102, 452 U.S. 956.

(1) serving a summons and a copy of the complaint on any general partner; or

(2) serving a summons and a copy of the complaint on the person in charge of a partnership office or business establishment and sending a summons and a copy of the complaint by registered mail, addressed to a general partner at his or her usual residence or last known address.

(D) Private Corporations, Domestic and Foreign. Service of process on a domestic or foreign corporation may be made by

(1) serving a summons and a copy of the complaint on an officer or the resident agent;

(2) serving a summons and a copy of the complaint on a director, trustee, or person in charge of an office or business establishment of the corporation and sending a summons and a copy of the complaint by registered mail, addressed to the principal office of the corporation;

(3) serving a summons and a copy of the complaint on the last presiding officer, president, cashier, secretary, or treasurer of a corporation that has ceased to do business by failing to keep up its organization by the appointment of officers or otherwise, or whose term of existence has expired;

(4) sending a summons and a copy of the complaint by registered mail to the corporation or an appropriate corporation officer and to the Michigan Corporation and Securities Bureau if

(a) the corporation has failed to appoint and maintain a resident agent or to file a certificate of that appointment as required by law;

(b) the corporation has failed to keep up its organization by the appointment of officers or otherwise; or

(E) Partnership Associations; Unincorporated Voluntary Associations. Service of process on a partnership association or an unincorporated voluntary association may be made by

(1) serving a summons and a copy of the complaint on an officer, director, trustee, agent, or person in charge of an office or business establishment of the association, and

(2) sending a summons and a copy of the complaint by registered mail, addressed to an office of the association. If an office cannot be located, a summons and a copy of the complaint may be sent by registered mail to a member of the association other than the person on whom the summons and complaint was served.

(F) Service on Insurer. If service on an insurer is made by serving the Commissioner of Insurance, as permitted by statute, 2 summonses and a copy of the complaint must be delivered or mailed by registered mail to the office of the Commissioner of Insurance.

(G) Public Corporations. Service of process on a public, municipal, quasi-municipal, or governmental corporation, unincorporated board, or public body may be made by serving a summons and a copy of the complaint on:

(1) the chairperson of the board of commissioners or the county clerk of a county;

(2) the mayor, the city clerk, or the city attorney of a city;

(3) the president, the clerk, or a trustee of a village;

(4) the supervisor or the township clerk of a township;

(5) the president, the secretary, or the treasurer of a school district;

(6) the president or the secretary of the Michigan State Board of Education;

(7) the president, the secretary, or other member of the governing body of a corporate body or an unincorporated board having control of a state institution;

(8) the president, the chairperson, the secretary, the manager, or the clerk of any other public body organized or existing under the constitution or laws of Michigan, when no other method of service is specially by statute. The service of process may be made on an officer having substantially the same duties as those named or described above, irrespective of title. In any case, service may be made by serving a summons and a copy of the complaint on a person in charge of the office of an officer on whom service may be made and sending a summons and a copy of the complaint by registered mail addressed to the officer at his or her office.

(H) Agent Authorized by Appointment or by Law.

(1) Service of process on a defendant may be made by serving a summons and a copy of the complaint on an agent authorized by written appointment or by law to receive service of process.

(2) Whenever, pursuant to statute or court rule, service of process is to be made on a nongovernmental defendant by service on a public officer, service on the public officer may be made by registered mail addressed to his or her office.

(I) Discretion of the Court.

(1) On a showing that service of process cannot reasonably be made as provided by this rule, the court may by order permit service of process to be made in any other manner reasonably calculated to give the defendant actual notice of the proceedings and an opportunity to be heard.

(2) A request for an order under the rule must be made in a verified motion dated not more than 14 days before it is filed. The motion must set forth sufficient facts to show that process cannot be served under this rule and must state the defendant’s address or last known address, or that no address of the defendant is known. If the name or present address of the defendant is unknown, the moving party must set forth facts showing diligent inquiry to ascertain it. A hearing on the motion is not required unless the court so directs.

(3) Service of process may not be made under this subrule before entry of the court’s order permitting it.

(J) Jurisdiction; Range of Service; Effect of Improper Service.

(1) Provisions for service of process contained in these rules are intended to satisfy the due process requirement that a defendant be informed of an action by the best means available under the circumstances. These rules are not intended to limit or expand the jurisdiction given the Michigan courts over a defendant. The jurisdiction of a court over a defendant is governed by the United States Constitution and the constitution and laws of the State of Michigan. See MCL 600.701 et seq.; MSA 27A.701 et seq.

(2) There is no territorial limitation on the range of process issued by a Michigan court.

(3) An action shall not be dismissed for improper service of process unless the service failed to inform the defendant of the action within the time provided in these rules for service.

(K) Registered and Certified Mail.

(1) If a rule uses the term “registered mail”, that term includes the term “certified mail”, and the term “certified mail, return receipt requested” includes the term “certified mail, return receipt requested”. However, if certified mail is used, the receipt of mailing must be postmarked by the post office.

(2) If a rule uses the term “certified mail”, a postmarked receipt of mailing is not required. Registered mail may be used when a rule requires certified mail.

Rule 2.506 Subpoena.

(G) Service of Subpoena and Order to Attend; Fees.

(1) A subpoena may be served anywhere in Michigan in the manner provided by MCR 2.105. The fee for attendance and mileage provided by law must be tendered to the person on whom the subpoena is served at the time of service. Tender must be made in cash, by money order, by cashier’s check, or by a check drawn on the account of an attorney of record in the action or the attorney’s authorized agent.

(2) A subpoena may also be served by mailing to a witness a copy of the subpoena and a postage-paid card acknowledging service and addressed to the party requesting service. The fees for attendance and mileage provided by law are to be given to the witness after the witness appears at the court, and the acknowledgment card must so indicate. If the card is not returned, the subpoena must be served in the manner provided in subrule (G)(1).

(3) A subpoena or order to attend directed to a party, or to an officer, director, or managing agent of a party, may be served in the manner provided by MCR 2.107, and fees and mileage need not be paidâ€¦.

MICHIGAN COMPILED LAWS

600.1831 Civil process; exemptions. [M.S.A. 27a.1831]

(1) Civil process shall not be served on any elector entitled to vote at any election during the day that election is held; but upon sufficient cause being shown by affidavit to the satisfaction of a judge of any circuit, that judge may make any restraining order or authorize the issuance and service or execution of any writ on any election day, as on other days.

(2) Civil process shall not be served or executed on Sunday; but upon sufficient cause being shown by affidavit to the satisfaction of a judge of any circuit, that judge may make any restraining order or authorize the issuance of and service or execution of any writ on Sunday, as on other days.

600.1835 Civil process; privileged persons. [M.S.A. 27a.1835]

(1) All persons going to, attending, or returning from, any court proceedings in any action in which their presence is needed are privileged from service of process if service could not have been made on them had they not gone to, attended, or returned from the proceedings.

(2) Any person brought into this state by or after waiver of extradition based on a criminal charge is privileged against the service of personal process in civil actions arising out of the same facts as the criminal proceedings which he or she is returned to answer until he or she has been convicted in the criminal proceeding, or, if acquitted, until he or she has a reasonable opportunity to return to the state from which he or she came.

(3) A member of the legislature shall not be privileged from civil process except on a day on which there is a scheduled meeting of the house of which he or she is a member. However, a member of the legislature shall not be privileged from civil process on a day on which there is a scheduled meeting of the house of which he or she is a member, if such process is executed by certified mail, return receipt requested.

600.1841 Civil process; service on Great Lakes or border waters. [M.S.A. 27a.1841] Civil process which may be served by law anywhere in the state may be served upon any of the waters of the Great Lakes on border waters lying within the state. Any civil process which is required to be served within any county may also be served upon any of the waters of the Great Lakes or border waters which adjoin that county and are included in an extension of the boundary lines of that county to be boundary lines of the state. In any county where the boundary lines are not capable of extension because irregular, process issued from that county may be served on the waters of the Great lakes at any point within 10 miles of the shore line of that county.

Rule 2.103 Process; Who may serve(A) Service Generally. Process in civil actions may be served by any legally competent adult who is not a party or an officer of a corporate party.(B) Service Requiring Seizure of Property. A writ of restitution or process requiring the seizure or attachment of property may only be served by(1) a sheriff or deputy sheriff, or a bailiff or court officer appointed by the court for that purpose,(2) an officer of the Department of State Police in an action in which the state is a party, or(3) a police officer of an incorporated city or village in an action in which the city or village is a party. A writ of garnishment may be served by any person authorized by subrule (A).(C) Service in a Governmental Institution. If personal service of process is to be made on a person in a governmental institution, hospital, or home, service must be made by the person in charge of the institution or by someone designated by that person.(D) Process Requiring Arrest. Process in civil proceedings requiring the arrest of a person may be served only by a sheriff, deputy sheriff, or police officer, or by a court officer appointed by the court for that purpose.Rule 2.104 Process; Proof of service(A) Requirements. Proof of service may be made by(1) written acknowledgment of the receipt of a summons and a copy of the complaint, dated and signed by the person to whom the service is directed or by a person authorized under these rules to receive the service of process;(2) a certificate stating the facts of service, including the manner, time, date, and place of service, if service is made within the State of Michigan by(a) a sheriff,(b) a deputy sheriff or bailiff, if that officer holds office in the county in which the court issuing the process is held,(c) an appointed court officer,(d) an attorney for a party; or(3) an affidavit stating the facts of service, including the manner, time, date, and place of service, and indicating the process server’s official capacity, if any. The place of service must be described by giving the address where the service was made or, if the service was not made at a particular address, by another description of the location.(B) Failure to File. Failure to file proof of service does not affect the validity of the service.(C) Publication, Posting, and Mailing. If the manner of service used requires sending a copy of the summons and complaint by mail, the party requesting issuance of the summons is responsible for arranging the mailing and filing proof of service. Proof of publication, posting, and mailing under MCR 2.106 is governed by MCR 2.106(G).Rule 2.105 Process; Manner of service(A) Individuals. Process may be served on a resident or nonresident individual by,(1) delivering a summons and a copy of the complaint to the defendant personally; or(2) sending a summons and a copy of the complaint by registered or certified mail, return receipt requested, and delivery restricted to the addressee. Service is made when the defendant acknowledges receipt of the mail. A copy of the return receipt signed by the defendant must be attached to proof showing service under subrule (A)(2).(B) Individuals; Substituted Service. Service of process may be made(1) on a nonresident individual, by(a) serving a summons and a copy of the complaint in Michigan on an agent, employee, representative, sales representative, or servant of the defendant, and(b) sending a summons and a copy of the complaint by registered mail addressed to the defendant at his or her last known address;(2) on a minor, by serving a summons and a copy of the complaint on a person having care and control of the minor and with whom he or she resides;(3) on a defendant for whom a guardian or conservator has been appointed and is acting, by serving a summons and a copy of the complaint on the guardian or conservator;(4) on an individual doing business under an assumed name, by(a) serving a summons and copy of the complaint on the person in charge of an office or business establishment of the individual, and(b) sending a summons and a copy of the complaint by registered mail addressed to the individual at his or her usual residence or last known address.Case Notes:1. As a matter of public policy, courts want to avoid overuse of substitute service and default judgment it can cause. Sechler v. Van Hoey, 83 Mich.App. 252, 268 N.W.2d 364 (1978).2. A truly diligent search for an absentee defendant is absolutely necessary to supply a fair foundation for and legitimacy to ordering of substituted service. Kreuger v. Williams, 300 N.W.2d 910 (Mich. 1981); appeal dismissed 101 S.Ct. 3102, 452 U.S. 956.(C) Partnerships; Limited Partnerships. Service of process on a partnership or limited partnership may be made by(1) serving a summons and a copy of the complaint on any general partner; or(2) serving a summons and a copy of the complaint on the person in charge of a partnership office or business establishment and sending a summons and a copy of the complaint by registered mail, addressed to a general partner at his or her usual residence or last known address.(D) Private Corporations, Domestic and Foreign. Service of process on a domestic or foreign corporation may be made by(1) serving a summons and a copy of the complaint on an officer or the resident agent;(2) serving a summons and a copy of the complaint on a director, trustee, or person in charge of an office or business establishment of the corporation and sending a summons and a copy of the complaint by registered mail, addressed to the principal office of the corporation;(3) serving a summons and a copy of the complaint on the last presiding officer, president, cashier, secretary, or treasurer of a corporation that has ceased to do business by failing to keep up its organization by the appointment of officers or otherwise, or whose term of existence has expired;(4) sending a summons and a copy of the complaint by registered mail to the corporation or an appropriate corporation officer and to the Michigan Corporation and Securities Bureau if(a) the corporation has failed to appoint and maintain a resident agent or to file a certificate of that appointment as required by law;(b) the corporation has failed to keep up its organization by the appointment of officers or otherwise; or(c) the corporation’s term of existence has expired.(E) Partnership Associations; Unincorporated Voluntary Associations. Service of process on a partnership association or an unincorporated voluntary association may be made by(1) serving a summons and a copy of the complaint on an officer, director, trustee, agent, or person in charge of an office or business establishment of the association, and(2) sending a summons and a copy of the complaint by registered mail, addressed to an office of the association. If an office cannot be located, a summons and a copy of the complaint may be sent by registered mail to a member of the association other than the person on whom the summons and complaint was served.(F) Service on Insurer. If service on an insurer is made by serving the Commissioner of Insurance, as permitted by statute, 2 summonses and a copy of the complaint must be delivered or mailed by registered mail to the office of the Commissioner of Insurance.(G) Public Corporations. Service of process on a public, municipal, quasi-municipal, or governmental corporation, unincorporated board, or public body may be made by serving a summons and a copy of the complaint on:(1) the chairperson of the board of commissioners or the county clerk of a county;(2) the mayor, the city clerk, or the city attorney of a city;(3) the president, the clerk, or a trustee of a village;(4) the supervisor or the township clerk of a township;(5) the president, the secretary, or the treasurer of a school district;(6) the president or the secretary of the Michigan State Board of Education;(7) the president, the secretary, or other member of the governing body of a corporate body or an unincorporated board having control of a state institution;(8) the president, the chairperson, the secretary, the manager, or the clerk of any other public body organized or existing under the constitution or laws of Michigan, when no other method of service is specially by statute. The service of process may be made on an officer having substantially the same duties as those named or described above, irrespective of title. In any case, service may be made by serving a summons and a copy of the complaint on a person in charge of the office of an officer on whom service may be made and sending a summons and a copy of the complaint by registered mail addressed to the officer at his or her office.(H) Agent Authorized by Appointment or by Law.(1) Service of process on a defendant may be made by serving a summons and a copy of the complaint on an agent authorized by written appointment or by law to receive service of process.(2) Whenever, pursuant to statute or court rule, service of process is to be made on a nongovernmental defendant by service on a public officer, service on the public officer may be made by registered mail addressed to his or her office.(I) Discretion of the Court.(1) On a showing that service of process cannot reasonably be made as provided by this rule, the court may by order permit service of process to be made in any other manner reasonably calculated to give the defendant actual notice of the proceedings and an opportunity to be heard.(2) A request for an order under the rule must be made in a verified motion dated not more than 14 days before it is filed. The motion must set forth sufficient facts to show that process cannot be served under this rule and must state the defendant’s address or last known address, or that no address of the defendant is known. If the name or present address of the defendant is unknown, the moving party must set forth facts showing diligent inquiry to ascertain it. A hearing on the motion is not required unless the court so directs.(3) Service of process may not be made under this subrule before entry of the court’s order permitting it.(J) Jurisdiction; Range of Service; Effect of Improper Service.(1) Provisions for service of process contained in these rules are intended to satisfy the due process requirement that a defendant be informed of an action by the best means available under the circumstances. These rules are not intended to limit or expand the jurisdiction given the Michigan courts over a defendant. The jurisdiction of a court over a defendant is governed by the United States Constitution and the constitution and laws of the State of Michigan. See MCL 600.701 et seq.; MSA 27A.701 et seq.(2) There is no territorial limitation on the range of process issued by a Michigan court.(3) An action shall not be dismissed for improper service of process unless the service failed to inform the defendant of the action within the time provided in these rules for service.(K) Registered and Certified Mail.(1) If a rule uses the term “registered mail”, that term includes the term “certified mail”, and the term “certified mail, return receipt requested” includes the term “certified mail, return receipt requested”. However, if certified mail is used, the receipt of mailing must be postmarked by the post office.(2) If a rule uses the term “certified mail”, a postmarked receipt of mailing is not required. Registered mail may be used when a rule requires certified mail.Rule 2.506 Subpoena.(G) Service of Subpoena and Order to Attend; Fees.(1) A subpoena may be served anywhere in Michigan in the manner provided by MCR 2.105. The fee for attendance and mileage provided by law must be tendered to the person on whom the subpoena is served at the time of service. Tender must be made in cash, by money order, by cashier’s check, or by a check drawn on the account of an attorney of record in the action or the attorney’s authorized agent.(2) A subpoena may also be served by mailing to a witness a copy of the subpoena and a postage-paid card acknowledging service and addressed to the party requesting service. The fees for attendance and mileage provided by law are to be given to the witness after the witness appears at the court, and the acknowledgment card must so indicate. If the card is not returned, the subpoena must be served in the manner provided in subrule (G)(1).(3) A subpoena or order to attend directed to a party, or to an officer, director, or managing agent of a party, may be served in the manner provided by MCR 2.107, and fees and mileage need not be paidâ€¦.MICHIGAN COMPILED LAWS600.1831 Civil process; exemptions. [M.S.A. 27a.1831](1) Civil process shall not be served on any elector entitled to vote at any election during the day that election is held; but upon sufficient cause being shown by affidavit to the satisfaction of a judge of any circuit, that judge may make any restraining order or authorize the issuance and service or execution of any writ on any election day, as on other days.(2) Civil process shall not be served or executed on Sunday; but upon sufficient cause being shown by affidavit to the satisfaction of a judge of any circuit, that judge may make any restraining order or authorize the issuance of and service or execution of any writ on Sunday, as on other days.600.1835 Civil process; privileged persons. [M.S.A. 27a.1835](1) All persons going to, attending, or returning from, any court proceedings in any action in which their presence is needed are privileged from service of process if service could not have been made on them had they not gone to, attended, or returned from the proceedings.(2) Any person brought into this state by or after waiver of extradition based on a criminal charge is privileged against the service of personal process in civil actions arising out of the same facts as the criminal proceedings which he or she is returned to answer until he or she has been convicted in the criminal proceeding, or, if acquitted, until he or she has a reasonable opportunity to return to the state from which he or she came.(3) A member of the legislature shall not be privileged from civil process except on a day on which there is a scheduled meeting of the house of which he or she is a member. However, a member of the legislature shall not be privileged from civil process on a day on which there is a scheduled meeting of the house of which he or she is a member, if such process is executed by certified mail, return receipt requested.600.1841 Civil process; service on Great Lakes or border waters. [M.S.A. 27a.1841] Civil process which may be served by law anywhere in the state may be served upon any of the waters of the Great Lakes on border waters lying within the state. Any civil process which is required to be served within any county may also be served upon any of the waters of the Great Lakes or border waters which adjoin that county and are included in an extension of the boundary lines of that county to be boundary lines of the state. In any county where the boundary lines are not capable of extension because irregular, process issued from that county may be served on the waters of the Great lakes at any point within 10 miles of the shore line of that county.

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Pennsylvania Foreclosure Process Server Laws

By admin | April 9, 2010

RULE 400. PERSON TO MAKE SERVICE

(a) Service of original process shall be made within the Commonwealth by the persons authorized by Rule 400.2 by handing a copy in the manner provided by Rules 402 through 402.2.

(b) In addition to service by the sheriff, original process may be served also by a competent adult in the following actions: equity, partition, prevent waste, and declaratory judgment when declaratory relief is the only relief sought.

Note: See Rule 76 for the definition of “competent adult”.

Service of original process in domestic relations matters is governed by Rule 1930.4.

(c) If service cannot be made under the applicable rule, service of original process shall be made in the manner provided by order of court pursuant to Rule 430.

(d) The return of service shall be made in the manner provided by Rule 405.

(e) In lieu of service under these rules, the defendant or the defendant’s authorized agent may accept service of original process by filing a separate document which shall be substantially in the form prescribed by Rule 450.

Adopted June 14, 1999, Amended and effective May 11, 1990; Oct. 2, 1995, effective Jan. 1, 1996; May 14, 1999, effective July 1, 1999.

RULE 400.1. PROVISIONS FOR ALL COURTS OF THE FIRST JUDICIAL DISTRICT

(a) In an action commenced in the First Judicial District, original process may be served.

(1) within the county by the sheriff or a competent adult, or

(2) in any other county by deputized service as provided by Rule 400(d) or by a competent adult forwarding the process to the sheriff of the county where service may be made.

Note: See Rule 76 for the definition of “competent adult”.

The First Judicial District is comprised of Philadelphia County.

(b) In an action commenced in any other county, original process may be served in Philadelphia County by deputized service as proved by Rule 400(d) or by a competent adult.

Note: See Rule 76 for the definition of “competent adult”.

Note: For service in an action for protection from abuse, see Rule 1930.4(b).

Adopted and effective May 11, 1990. Amended July 2, 1998, effective August 1, 1998; May 14, 1999, effective July 1, 1999.

RULE 401. TIME FOR SERVICE. REISSUANCE, REINSTATEMENT AND SUBSTITUTION OF ORIGINAL PROCESS. COPIES FOR SERVICE

(a) Original process shall be served within the Commonwealth within thirty days after the issuance of the writ or the filing of the complaint.

(b)(1) If service within the Commonwealth is not made within the time prescribed by subdivision (a) of this rule or outside the Commonwealth within the time prescribed by Rule 404, the prothonotary upon praecipe and upon presentation of the original process, shall continue its validity by reissuing the writ or reinstating the complaint, by writing thereon “reissued” in the case of a writ or “reinstated” in the case of a complaint.

(2) A writ may be reissued or a complaint reinstated at any time and any number of times. A new party defendant may be named in a reissued writ or a reinstated complaint.

(3) A substituted writ may be issued or a substituted complaint filed upon praecipe stating that the former writ or complaint has been lost or destroyed.

(4) A reissued, reinstated or substituted writ or complaint shall be served within the applicable time prescribed by subdivision (a) of this rule or by Rule 404 after reissuance, reinstatement or substitution.

(5) If an action is commenced by writ of summons and a complaint is thereafter filed, the plaintiff instead of reissuing the writ may treat the complaint as alternative original process and as the equivalent for all purposes of a reissued writ, reissued as of the date of the filing of the complaint. Thereafter the writ may be reissued, or the complaint may be reinstated as the equivalent of a reissuance of the writ, and the plaintiff may use either the reissued writ or the reinstated complaint as alternative original process.

(c) The copy of the original process to be served upon the defendant shall be attested by the prothonotary or certified by the plaintiff to be a true copy.

Adopted June 20, 1985, effective January 1, 1986.

RULE 402. SERVICE UPON INDIVIDUALS. ADULTS. MINORS. INCAPACITATED PERSONS.

(a) Original process may be served upon a defendant who is an adult

(1) by handing a copy to the defendant; or

(2) by handing a copy

(i) at the residence of the defendant to an adult member of the family with whom the defendant resides; but if no adult member of the family is found, then to an adult person in charge of such residence; or

(ii) at the hotel, inn, apartment house, boarding house or other place of lodging at which the defendant resides to the manager or other person authorized to accept deliveries of United States mail; or

(iii) at any office or usual place of business of the defendant to the defendant’s agent or to the person for the time being in charge.

(b) If the defendant is a minor or an incapacitated person, original process shall be served

(1) upon the minor or the incapacitated person in the manner prescribed for service of original process upon an adult defendant, or

(2) by handling a copy to the guardian of the minor or incapacitated person.

Adopted June 20, 1985, effective January 1, 1986; amended June 14, 1999, effective July 1, 1999.

RULE 402.1. SERVICE UPON THE COMMONWEALTH AND POLITICAL SUBDIVISIONS

(a) Service of original process upon the Commonwealth or an officer of the Commonwealth shall be made at the office of the named defendant and the office of the Attorney General by handing a copy to the person in charge.

(b) Service of original process upon a department, board, commission or instrumentality of the Commonwealth, or a member thereof, shall be made at the office of the named defendant and the office of the Attorney General by handing a copy to the person in charge.

(1) by handing a copy to

(i) the person in charge at the political subdivision’s office of the solicitor or legal department, or

(ii) the person in charge at the office of the political subdivision, or

(iii) an agent duly authorized by the political subdivision to receive service of process, or

(2) by serving the mayor, or the president, chairman, secretary or clerk of the governing body in the manner prescribed by Rule 402(a).

(d) This rule shall not apply to an appeal from an administrative determination, order or decree of such officer, department, board, commission or instrumentality.

Adopted June 14, 1999, effective July 1, 1999.

RULE 402.2. SERVICE UPON PARTNERSHIPS, UNINCORPORATED ASSOCIATIONS, AND CORPORATIONS AND SIMILAR ENTITIES

(a) As used in this rule, “association” means a partnership and all partners named in the action, an unincorporated association or a corporation or similar entity; “officer” when referring to an officer of a corporation or similar entity means an executive officer as defined by Rule 2176.

(b) Provided that the person served is not a plaintiff in the action, service of original process upon an association shall be made

(1) by serving any partner, officer, trustee or registered agent of the association in the manner prescribed by Rule 402(a), or

(2) by handing a copy to the manager, clerk or other person for the time being in charge of any regular place of business or activity of the association, or

(3) by handing a copy to an agent authorized by the association in writing to receive service of process for it.

Adopted June 14, 1999, effective July 1, 1999.

RULE 402.3. SERVICE UPON ADDITIONAL DEFENDANTS

(a) Original process shall be served upon an additional defendant who is not already a party to the action in the same manner as if the additional defendant were an original defendant. Copies of all pleadings filed in the action shall be served with the complaint against the additional defendant.

(b) The defendant or additional defendant who has filed a complaint shall serve a copy upon every prior party but need not attach copies of any pleadings previously filed in the action.

RULE 403. SERVICE BY MAIL

If a rule of civil procedure authorizes original process to be served by mail, a copy of the process shall be mailed to the defendant by any form of United States mail requiring a receipt signed by the defendant or the defendant’s authorized agent. Service is complete upon the defendant or the defendant’s authorized agent signing the required receipt.

(1) If the mail is returned with notation by the postal authorities that the defendant refused to accept the mail, the plaintiff shall have the right of service by mailing a copy to the defendant at the same address by ordinary mail with the return address of the sender appearing thereon. Service by ordinary mail is complete if the mail is not returned by the postal authorities to the sender within fifteen days after mailing.

(2) If the mail is returned with notation by the postal authorities that it was unclaimed, the plaintiff shall make service by another means pursuant to these rules.

Adopted June 20, 1985, effective January 1, 1986; amended June 14, 1999, effective July 1, 1999.

RULE 404. SERVICE OUTSIDE THE COMMONWEALTH

Original process shall be served outside the Commonwealth within ninety days of the issuance of the writ or the filing of the complaint or the reissuance or the reinstatement thereof:

Note: For reissuance and reinstatement of original process, see Rule 401(b).

(1) by a competent adult in the manner provided by Rule 402(a);

Note: See Rule 76 for the definition of “competent adult”.

(2) by mail in the manner provided by Rule 403;

(3) in the manner provided by the law of the jurisdiction in which the service is made for service in an action in any of its courts of general jurisdiction;

(4) in the manner provided by treaty; or

(5) as directed by the foreign authority in response to a letter rogatory or request.

Adopted June 20, 1985, effective January 1, 1986. Amended May 14, 1999, effective July 1, 1999.

RULE 405. RETURN OF SERVICE.

Original process shall be served outside the Commonwealth within ninety days of the issuance of the writ or the filing of the complaint or the reissuance or the reinstatement thereof:

Note: For reissuance and reinstatement of original process, see Rule 401(b).

(a) When service of original process has been made the sheriff or other person making service shall make a return of service forthwith. If service has not been made and the writ has not been reissued or the complaint reinstated, a return of no service shall be made upon the expiration of the period allowed for service.

(b) A return of service shall set forth the date, time, place and manner of service, the identity of the person served and any other facts necessary for the court to determine whether proper service has been made.

(c) Proof of service by mail under Rule 403 shall include a return receipt signed by the defendant or, if the defendant has refused to accept mail service and the plaintiff thereafter has served the defendant by ordinary mail,

(1) the returned letter with the notation that the defendant refused to accept delivery, and

(2) an affidavit that the letter was mailed by ordinary mail and was not returned within fifteen days after mailing.

(d) A return of service by a person other than the sheriff shall be by affidavit. If a person other than the sheriff makes a return of no service, the affidavit shall set forth with particularity the efforts made to effect service.

(e) The return of service or of no service shall be filed with the prothonotary.

(f) A return of service shall not be required when the defendant accepts service of original process.

(g) The sheriff upon filing a return of service or of no service shall notify by ordinary mail the party requesting service to be made that service has or has not been made upon a named party.

Adopted June 20, 1985, effective January 1, 1986. Amended July 7, 1986, effective January 1, 1987; November 7, 1988, effective January 1, 1989.

RULE 410. REAL PROPERTY ACTIONS

(a) In actions involving title to, interest in, possession of, or charges or liens upon real property, original process shall be served upon the defendant in the manner provided by Rule 400 et seq.

(b)(1) If in an action involving an interest in real property the relief sought is possession or mortgage foreclosure, original process also shall be served upon any person not named as a party who is found in possession of the property. The sheriff or other person making service shall note the service in the return.

(2) If the relief sought is possession, the person so served shall thereupon become a defendant in the action. Upon praecipe of the plaintiff the prothonotary shall index the name of the person found in possession as a party to the action.

(3) If the relief sought is mortgage foreclosure, the person so served shall not thereby become a party to the action.

(c) If service is made pursuant to an order of court under Rule 430(a), the court shall direct one or more of the following methods of service:

(1) publication as provided by Rule 430(b),

(2) posting a copy of the original process on the most public part of the property,

(3) registered mail to the defendant’s last known address, and

(4) such other methods, if any, as the court deems appropriate to give notice to the defendant.

Adopted June 20, 1985, effective January 1, 1986; amended June 14, 1999, effective July 1, 1999.

RULE 430. SERVICE PURSUANT TO SPECIAL ORDER OF COURT. PUBLICATION

(a) If service cannot be made under the applicable rule the plaintiff may move the court for a special order directing the method of service. The motion shall be accompanied by an affidavit stating the nature and extent of the investigation which has been made to determine the whereabouts of the defendant and the reasons why service cannot be made.

(b)(1) If service of process by publication has been authorized by rule of civil procedure or order of court, the publication shall be by advertising a notice of the action once in the legal publication, if any, designated by the court for the publication of legal notices and in one newspaper of general circulation within the county. The publication shall contain the caption of the action and the names of the parties, state the nature of the action and conclude with a notice substantially in the following form:

NOTICE

If you wish to defend, you must enter a written appearance personally or by attorney and file your defenses or objections in writing with the court. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you without further notice for the relief requested by the plaintiff. You may lose money or property or other rights important to you.

YOU SHOULD TAKE THIS NOTICE TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.

________________________________

(NAME)

________________________________

(ADDRESS)

________________________________

(TELEPHONE NUMBER)

(2) When service is made by publication upon the heirs and assigns of a named former owner or party in interest, the court may permit publication against the heirs or assigns generally if it is set forth in- the complaint or an affidavit that they are unknown.

Adopted June 20, 1985, effective January 1, 1986.

RULE 234.1 SUBPOENA TO ATTEND AND TESTIFY

(a) A subpoena is an order of the court commanding a person to attend and testify at a particular time and place. It may also require the person to produce documents or things which are under the possession, custody or control of that person.

(b) A subpoena may be used to command a person to attend and to produce documents or things only at

(1) a trial or hearing in an action or proceeding pending in the court, or

(2) the taking of a deposition in an action or proceeding pending in the court.

(c) A subpoena may not be used to compel a person to appear or to produce documents or things ex parte before an attorney, a party or a representative of the party.

Adopted December 14, 1989, effective January 1, 1990. Amended April 7, 1997, effective July 1, 1997; November 24, 1998, effective January 1, 1999.

RULE 234.2 SUBPOENA. ISSUANCE. SERVICE. COMPLIANCE. FEES. PRISONERS

(a) Upon the request of a party, the prothonotary shall issue a subpoena signed and under the seal of the court but otherwise in blank, substantially in the form prescribed by Rule 234.6.

(b) A copy of the subpoena may be served upon any person within the Commonwealth by an adult

(1) in the manner prescribed by Rule 402(a);

(2) by any form of mail requiring a return receipt, postage prepaid, restricted delivery. Service is complete upon delivery of the mail to the person subpoenaed or any of the persons referred to in Rule 402(a)(2). The return receipt may be signed by the person subpoenaed or any of such persons; or

(3) by ordinary mail. The mail shall contain two copies of the Notice and Acknowledgment prescribed by Rule 234.9 and a self-addressed stamped envelope.

(c) The fee for one day’s attendance and round trip mileage shall be tendered upon demand at the time the person is served with a subpoena. If a subpoena is served by mail, a check in the amount of one day’s attendance and round trip mileage shall be enclosed with the subpoena.

(d) A court may compel the attendance of any person confined in jail or prison by issuing, upon motion, an order directed to the custodian of the person so confined to release the person to the custody of a sheriff or other appropriate agent.

Note: A subpoena served by ordinary mail is not enforceable unless the witness acknowledges having received it. See Rule 234.5(a).

Adopted December 14, 1989, effective January 1, 1990. Amended April 7, 1997, effective July 1, 1997; May 14, 1999, effective July 1, 1999.

RULE 234.6 FORM OF SUBPOENA

A subpoena issued pursuant to Rule 234.1 shall be substantially in the following form:

Commonwealth of Pennsylvania

County of ______

(Caption)

SUBPOENA TO ATTEND AND TESTIFY

To ____________________________:

(Name(s) of Witness(es))

1. You are ordered by the Court to come to _____________________________________________________ (Specify Courtroom or other place) at ____________________, Pennsylvania, on ___________ at __________ o’clock, ____.M., to testify on behalf of _________________________ in the above case, and to remain until excused.

2. And bring with you the following: ___________________________________________________________.

If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment.

Requested by: _________________________________________ (Attorney’s name, address, telephone number, and identification number)

BY THE COURT,

Date: ________ By ____________________________________

(Name of prothonotary)

Seal of the Court

Return of Service (Reverse Side of Subpoena)

On the ______________ day of _______, _______, I, ______________, served (name of person served) ___________________________ with the foregoing subpoena by: (Describe method of service) ___________________________________________________________________________ ____________.

I verify that the statements in this return of service are true and correct. I understand that false statements herein are made subject to the penalties of 18 P. S. Â§ 4904 relating to unsworn falsification to authorities.

Date:__________ ________________________________

signature

Adopted December 14, 1989, effective January 1 1990. Amended April 7, 1997, effective July 1, 1997; April 12, 1999, effective July 1, 1999.

RULE 234.9 NOTICE AND ACKNOWLEDGMENT OF RECEIPT OF SUBPOENA BY MAIL The notice and acknowledgment of receipt of subpoena by mail required by Rule 234.2(b)(3) shall be substantially in the following form:

(Caption)

NOTICE

To ______________________________

(Name of person to be served)

The enclosed subpoena is served pursuant to Pennsylvania Rule of Civil Procedure 234.2(b)(3). Complete the acknowledgment part of this form and return the copy of the completed form to the sender in the enclosed self-addressed stamped envelope.

Sign and date the acknowledgment. If you are served on behalf of a partnership, unincorporated association, corporation or similar entity, indicate under your signature your relationship to that entity. If you are served on behalf of another person and you are authorized to receive the subpoena, indicate under your signature your authority.

Date Notice Mailed: _________________________________

___________________ Party serving subpoena or Attorney for Party

ACKNOWLEDGMENT OF RECEIPT OF SUBPOENA

I acknowledge receipt of a copy of the subpoena in the above captioned matter.

Date:_________ ________________________________

Signature

________________________________

Relationship to entity or

authority to receive the subpoena

Adopted December 14, 1989, effective January 1, 1990. Amended April 12, 1999, effective July 1, 1999.

RULE 400. PERSON TO MAKE SERVICE(a) Service of original process shall be made within the Commonwealth by the persons authorized by Rule 400.2 by handing a copy in the manner provided by Rules 402 through 402.2.(b) In addition to service by the sheriff, original process may be served also by a competent adult in the following actions: equity, partition, prevent waste, and declaratory judgment when declaratory relief is the only relief sought.Note: See Rule 76 for the definition of “competent adult”.Service of original process in domestic relations matters is governed by Rule 1930.4.(c) If service cannot be made under the applicable rule, service of original process shall be made in the manner provided by order of court pursuant to Rule 430.(d) The return of service shall be made in the manner provided by Rule 405.(e) In lieu of service under these rules, the defendant or the defendant’s authorized agent may accept service of original process by filing a separate document which shall be substantially in the form prescribed by Rule 450.Adopted June 14, 1999, Amended and effective May 11, 1990; Oct. 2, 1995, effective Jan. 1, 1996; May 14, 1999, effective July 1, 1999.RULE 400.1. PROVISIONS FOR ALL COURTS OF THE FIRST JUDICIAL DISTRICT(a) In an action commenced in the First Judicial District, original process may be served.(1) within the county by the sheriff or a competent adult, or(2) in any other county by deputized service as provided by Rule 400(d) or by a competent adult forwarding the process to the sheriff of the county where service may be made.Note: See Rule 76 for the definition of “competent adult”.The First Judicial District is comprised of Philadelphia County.(b) In an action commenced in any other county, original process may be served in Philadelphia County by deputized service as proved by Rule 400(d) or by a competent adult.Note: See Rule 76 for the definition of “competent adult”.(c) Rescinded.Note: For service in an action for protection from abuse, see Rule 1930.4(b).Adopted and effective May 11, 1990. Amended July 2, 1998, effective August 1, 1998; May 14, 1999, effective July 1, 1999.RULE 401. TIME FOR SERVICE. REISSUANCE, REINSTATEMENT AND SUBSTITUTION OF ORIGINAL PROCESS. COPIES FOR SERVICE(a) Original process shall be served within the Commonwealth within thirty days after the issuance of the writ or the filing of the complaint.(b)(1) If service within the Commonwealth is not made within the time prescribed by subdivision (a) of this rule or outside the Commonwealth within the time prescribed by Rule 404, the prothonotary upon praecipe and upon presentation of the original process, shall continue its validity by reissuing the writ or reinstating the complaint, by writing thereon “reissued” in the case of a writ or “reinstated” in the case of a complaint.(2) A writ may be reissued or a complaint reinstated at any time and any number of times. A new party defendant may be named in a reissued writ or a reinstated complaint.(3) A substituted writ may be issued or a substituted complaint filed upon praecipe stating that the former writ or complaint has been lost or destroyed.(4) A reissued, reinstated or substituted writ or complaint shall be served within the applicable time prescribed by subdivision (a) of this rule or by Rule 404 after reissuance, reinstatement or substitution.(5) If an action is commenced by writ of summons and a complaint is thereafter filed, the plaintiff instead of reissuing the writ may treat the complaint as alternative original process and as the equivalent for all purposes of a reissued writ, reissued as of the date of the filing of the complaint. Thereafter the writ may be reissued, or the complaint may be reinstated as the equivalent of a reissuance of the writ, and the plaintiff may use either the reissued writ or the reinstated complaint as alternative original process.(c) The copy of the original process to be served upon the defendant shall be attested by the prothonotary or certified by the plaintiff to be a true copy.Adopted June 20, 1985, effective January 1, 1986.RULE 402. SERVICE UPON INDIVIDUALS. ADULTS. MINORS. INCAPACITATED PERSONS.(a) Original process may be served upon a defendant who is an adult(1) by handing a copy to the defendant; or(2) by handing a copy(i) at the residence of the defendant to an adult member of the family with whom the defendant resides; but if no adult member of the family is found, then to an adult person in charge of such residence; or(ii) at the hotel, inn, apartment house, boarding house or other place of lodging at which the defendant resides to the manager or other person authorized to accept deliveries of United States mail; or(iii) at any office or usual place of business of the defendant to the defendant’s agent or to the person for the time being in charge.(b) If the defendant is a minor or an incapacitated person, original process shall be served(1) upon the minor or the incapacitated person in the manner prescribed for service of original process upon an adult defendant, or(2) by handling a copy to the guardian of the minor or incapacitated person.Adopted June 20, 1985, effective January 1, 1986; amended June 14, 1999, effective July 1, 1999.RULE 402.1. SERVICE UPON THE COMMONWEALTH AND POLITICAL SUBDIVISIONS(a) Service of original process upon the Commonwealth or an officer of the Commonwealth shall be made at the office of the named defendant and the office of the Attorney General by handing a copy to the person in charge.(b) Service of original process upon a department, board, commission or instrumentality of the Commonwealth, or a member thereof, shall be made at the office of the named defendant and the office of the Attorney General by handing a copy to the person in charge.(c) Service of original process upon a political subdivision shall be made(1) by handing a copy to(i) the person in charge at the political subdivision’s office of the solicitor or legal department, or(ii) the person in charge at the office of the political subdivision, or(iii) an agent duly authorized by the political subdivision to receive service of process, or(2) by serving the mayor, or the president, chairman, secretary or clerk of the governing body in the manner prescribed by Rule 402(a).(d) This rule shall not apply to an appeal from an administrative determination, order or decree of such officer, department, board, commission or instrumentality.Adopted June 14, 1999, effective July 1, 1999.RULE 402.2. SERVICE UPON PARTNERSHIPS, UNINCORPORATED ASSOCIATIONS, AND CORPORATIONS AND SIMILAR ENTITIES(a) As used in this rule, “association” means a partnership and all partners named in the action, an unincorporated association or a corporation or similar entity; “officer” when referring to an officer of a corporation or similar entity means an executive officer as defined by Rule 2176.(b) Provided that the person served is not a plaintiff in the action, service of original process upon an association shall be made(1) by serving any partner, officer, trustee or registered agent of the association in the manner prescribed by Rule 402(a), or(2) by handing a copy to the manager, clerk or other person for the time being in charge of any regular place of business or activity of the association, or(3) by handing a copy to an agent authorized by the association in writing to receive service of process for it.Adopted June 14, 1999, effective July 1, 1999.RULE 402.3. SERVICE UPON ADDITIONAL DEFENDANTS(a) Original process shall be served upon an additional defendant who is not already a party to the action in the same manner as if the additional defendant were an original defendant. Copies of all pleadings filed in the action shall be served with the complaint against the additional defendant.(b) The defendant or additional defendant who has filed a complaint shall serve a copy upon every prior party but need not attach copies of any pleadings previously filed in the action.RULE 403. SERVICE BY MAILIf a rule of civil procedure authorizes original process to be served by mail, a copy of the process shall be mailed to the defendant by any form of United States mail requiring a receipt signed by the defendant or the defendant’s authorized agent. Service is complete upon the defendant or the defendant’s authorized agent signing the required receipt.(1) If the mail is returned with notation by the postal authorities that the defendant refused to accept the mail, the plaintiff shall have the right of service by mailing a copy to the defendant at the same address by ordinary mail with the return address of the sender appearing thereon. Service by ordinary mail is complete if the mail is not returned by the postal authorities to the sender within fifteen days after mailing.(2) If the mail is returned with notation by the postal authorities that it was unclaimed, the plaintiff shall make service by another means pursuant to these rules.Adopted June 20, 1985, effective January 1, 1986; amended June 14, 1999, effective July 1, 1999.RULE 404. SERVICE OUTSIDE THE COMMONWEALTHOriginal process shall be served outside the Commonwealth within ninety days of the issuance of the writ or the filing of the complaint or the reissuance or the reinstatement thereof:Note: For reissuance and reinstatement of original process, see Rule 401(b).(1) by a competent adult in the manner provided by Rule 402(a);Note: See Rule 76 for the definition of “competent adult”.(2) by mail in the manner provided by Rule 403;(3) in the manner provided by the law of the jurisdiction in which the service is made for service in an action in any of its courts of general jurisdiction;(4) in the manner provided by treaty; or(5) as directed by the foreign authority in response to a letter rogatory or request.Adopted June 20, 1985, effective January 1, 1986. Amended May 14, 1999, effective July 1, 1999.RULE 405. RETURN OF SERVICE.Original process shall be served outside the Commonwealth within ninety days of the issuance of the writ or the filing of the complaint or the reissuance or the reinstatement thereof:Note: For reissuance and reinstatement of original process, see Rule 401(b).(a) When service of original process has been made the sheriff or other person making service shall make a return of service forthwith. If service has not been made and the writ has not been reissued or the complaint reinstated, a return of no service shall be made upon the expiration of the period allowed for service.(b) A return of service shall set forth the date, time, place and manner of service, the identity of the person served and any other facts necessary for the court to determine whether proper service has been made.(c) Proof of service by mail under Rule 403 shall include a return receipt signed by the defendant or, if the defendant has refused to accept mail service and the plaintiff thereafter has served the defendant by ordinary mail,(1) the returned letter with the notation that the defendant refused to accept delivery, and(2) an affidavit that the letter was mailed by ordinary mail and was not returned within fifteen days after mailing.(d) A return of service by a person other than the sheriff shall be by affidavit. If a person other than the sheriff makes a return of no service, the affidavit shall set forth with particularity the efforts made to effect service.(e) The return of service or of no service shall be filed with the prothonotary.(f) A return of service shall not be required when the defendant accepts service of original process.(g) The sheriff upon filing a return of service or of no service shall notify by ordinary mail the party requesting service to be made that service has or has not been made upon a named party.Adopted June 20, 1985, effective January 1, 1986. Amended July 7, 1986, effective January 1, 1987; November 7, 1988, effective January 1, 1989.RULE 410. REAL PROPERTY ACTIONS(a) In actions involving title to, interest in, possession of, or charges or liens upon real property, original process shall be served upon the defendant in the manner provided by Rule 400 et seq.(b)(1) If in an action involving an interest in real property the relief sought is possession or mortgage foreclosure, original process also shall be served upon any person not named as a party who is found in possession of the property. The sheriff or other person making service shall note the service in the return.(2) If the relief sought is possession, the person so served shall thereupon become a defendant in the action. Upon praecipe of the plaintiff the prothonotary shall index the name of the person found in possession as a party to the action.(3) If the relief sought is mortgage foreclosure, the person so served shall not thereby become a party to the action.(c) If service is made pursuant to an order of court under Rule 430(a), the court shall direct one or more of the following methods of service:(1) publication as provided by Rule 430(b),(2) posting a copy of the original process on the most public part of the property,(3) registered mail to the defendant’s last known address, and(4) such other methods, if any, as the court deems appropriate to give notice to the defendant.Adopted June 20, 1985, effective January 1, 1986; amended June 14, 1999, effective July 1, 1999.RULE 430. SERVICE PURSUANT TO SPECIAL ORDER OF COURT. PUBLICATION(a) If service cannot be made under the applicable rule the plaintiff may move the court for a special order directing the method of service. The motion shall be accompanied by an affidavit stating the nature and extent of the investigation which has been made to determine the whereabouts of the defendant and the reasons why service cannot be made.(b)(1) If service of process by publication has been authorized by rule of civil procedure or order of court, the publication shall be by advertising a notice of the action once in the legal publication, if any, designated by the court for the publication of legal notices and in one newspaper of general circulation within the county. The publication shall contain the caption of the action and the names of the parties, state the nature of the action and conclude with a notice substantially in the following form:NOTICEIf you wish to defend, you must enter a written appearance personally or by attorney and file your defenses or objections in writing with the court. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you without further notice for the relief requested by the plaintiff. You may lose money or property or other rights important to you.YOU SHOULD TAKE THIS NOTICE TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.________________________________(NAME)________________________________(ADDRESS)________________________________(TELEPHONE NUMBER)(2) When service is made by publication upon the heirs and assigns of a named former owner or party in interest, the court may permit publication against the heirs or assigns generally if it is set forth in- the complaint or an affidavit that they are unknown.Adopted June 20, 1985, effective January 1, 1986.RULE 234.1 SUBPOENA TO ATTEND AND TESTIFY(a) A subpoena is an order of the court commanding a person to attend and testify at a particular time and place. It may also require the person to produce documents or things which are under the possession, custody or control of that person.(b) A subpoena may be used to command a person to attend and to produce documents or things only at(1) a trial or hearing in an action or proceeding pending in the court, or(2) the taking of a deposition in an action or proceeding pending in the court.(c) A subpoena may not be used to compel a person to appear or to produce documents or things ex parte before an attorney, a party or a representative of the party.Adopted December 14, 1989, effective January 1, 1990. Amended April 7, 1997, effective July 1, 1997; November 24, 1998, effective January 1, 1999.RULE 234.2 SUBPOENA. ISSUANCE. SERVICE. COMPLIANCE. FEES. PRISONERS(a) Upon the request of a party, the prothonotary shall issue a subpoena signed and under the seal of the court but otherwise in blank, substantially in the form prescribed by Rule 234.6.(b) A copy of the subpoena may be served upon any person within the Commonwealth by an adult(1) in the manner prescribed by Rule 402(a);(2) by any form of mail requiring a return receipt, postage prepaid, restricted delivery. Service is complete upon delivery of the mail to the person subpoenaed or any of the persons referred to in Rule 402(a)(2). The return receipt may be signed by the person subpoenaed or any of such persons; or(3) by ordinary mail. The mail shall contain two copies of the Notice and Acknowledgment prescribed by Rule 234.9 and a self-addressed stamped envelope.(c) The fee for one day’s attendance and round trip mileage shall be tendered upon demand at the time the person is served with a subpoena. If a subpoena is served by mail, a check in the amount of one day’s attendance and round trip mileage shall be enclosed with the subpoena.(d) A court may compel the attendance of any person confined in jail or prison by issuing, upon motion, an order directed to the custodian of the person so confined to release the person to the custody of a sheriff or other appropriate agent.Note: A subpoena served by ordinary mail is not enforceable unless the witness acknowledges having received it. See Rule 234.5(a).Adopted December 14, 1989, effective January 1, 1990. Amended April 7, 1997, effective July 1, 1997; May 14, 1999, effective July 1, 1999.RULE 234.6 FORM OF SUBPOENAA subpoena issued pursuant to Rule 234.1 shall be substantially in the following form:Commonwealth of PennsylvaniaCounty of ______(Caption)SUBPOENA TO ATTEND AND TESTIFYTo ____________________________:(Name(s) of Witness(es))1. You are ordered by the Court to come to _____________________________________________________ (Specify Courtroom or other place) at ____________________, Pennsylvania, on ___________ at __________ o’clock, ____.M., to testify on behalf of _________________________ in the above case, and to remain until excused.2. And bring with you the following: ___________________________________________________________.If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment.Requested by: _________________________________________ (Attorney’s name, address, telephone number, and identification number)
BY THE COURT,Date: ________ By ____________________________________(Name of prothonotary)Seal of the CourtReturn of Service (Reverse Side of Subpoena)On the ______________ day of _______, _______, I, ______________, served (name of person served) ___________________________ with the foregoing subpoena by: (Describe method of service) ___________________________________________________________________________ ____________.I verify that the statements in this return of service are true and correct. I understand that false statements herein are made subject to the penalties of 18 P. S. Â§ 4904 relating to unsworn falsification to authorities.Date:__________ ________________________________signatureAdopted December 14, 1989, effective January 1 1990. Amended April 7, 1997, effective July 1, 1997; April 12, 1999, effective July 1, 1999.
RULE 234.9 NOTICE AND ACKNOWLEDGMENT OF RECEIPT OF SUBPOENA BY MAIL The notice and acknowledgment of receipt of subpoena by mail required by Rule 234.2(b)(3) shall be substantially in the following form:(Caption)NOTICETo ______________________________(Name of person to be served)
The enclosed subpoena is served pursuant to Pennsylvania Rule of Civil Procedure 234.2(b)(3). Complete the acknowledgment part of this form and return the copy of the completed form to the sender in the enclosed self-addressed stamped envelope.Sign and date the acknowledgment. If you are served on behalf of a partnership, unincorporated association, corporation or similar entity, indicate under your signature your relationship to that entity. If you are served on behalf of another person and you are authorized to receive the subpoena, indicate under your signature your authority.
Date Notice Mailed: ____________________________________________________ Party serving subpoena or Attorney for Party
ACKNOWLEDGMENT OF RECEIPT OF SUBPOENAI acknowledge receipt of a copy of the subpoena in the above captioned matter.Date:_________ ________________________________Signature
________________________________Relationship to entity orauthority to receive the subpoenaAdopted December 14, 1989, effective January 1, 1990. Amended April 12, 1999, effective July 1, 1999.

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Oklahoma Foreclosure Process Server Laws

By admin | April 9, 2010

OKLAHOMA RULES OF CIVIL PROCEDURE

Â§ 12-2004 Process

A. SUMMONS: ISSUANCE. Upon filing of the petition, the clerk shall forthwith issue a summons. Upon request of the plaintiff separate or additional summons shall issue against any defendants.

B. SUMMONS: FORM.

1. The summons shall be signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, if any, otherwise, the plaintiff’s address, and the time within which these rules require the defendant to appear and defend, and shall notify the defendant that in case of failure to appear, judgment by default will be rendered against the defendant for the relief demanded in the petition.

2. A judgment by default shall not be different in kind from or exceed in amount that prayed for in either the demand for judgment or in cases not sounding in contract in a notice which has been given the party against whom default judgment is sought. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his or her pleadings.

C. BY WHOM SERVED: PERSON TO BE SERVED.

1. SERVICE BY PERSONAL DELIVERY.

(a) At the election of the plaintiff, process, other than a subpoena, shall be served by a sheriff or deputy sheriff, a person licensed to make service of process in civil cases, or a person specially appointed for that purpose. The court shall freely make special appointments to serve all process, other than a subpoena, under this paragraph.

(b) A summons to be served by the sheriff or deputy sheriff shall be delivered to the sheriff by the court clerk or an attorney of record for the plaintiff. When a summons, subpoena, or other process is to be served by the sheriff or deputy sheriff of another county, the court clerk shall mail it, together with his voucher for the fees collected for the service, to the sheriff of that county. The sheriff shall deposit the voucher in the Sheriff’s Service Fee Account created pursuant to Section 514.1 of Title 19 of the Oklahoma Statutes. The sheriff or deputy sheriff shall serve the process in the manner that other process issued out of the court of the sheriff’s own county is served. A summons to be served by a person licensed to make service of process in civil cases or by a person specially appointed for that purpose shall be delivered by an attorney of record for the plaintiff to such person.

(1) Upon an individual other than an infant who is less than fifteen (15) years of age or an incompetent person, by delivering a copy of the summons and of the petition personally or by leaving copies thereof at the person’s dwelling house or usual place of abode with some person then residing therein who is fifteen (15) years of age or older or by delivering a copy of the summons and of the petition to an agent authorized by appointment or by law to receive service of process;

(2) Upon an infant who is less than fifteen (15) years of age, by serving the summons and petition personally and upon either of the infant’s parents or guardian, or if they cannot be found, then upon the person having the care or control of the infant or with whom the infant lives; and upon an incompetent person by serving the summons and petition personally and upon the incompetent person’s guardian;

(3) 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 petition to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant;

(4) Upon the United States or an officer or agency thereof in the manner specified by Federal Rule of Civil Procedure 4;

(5) Upon a state, county, school district, public trust or municipal corporation or other governmental organization thereof subject to suit, by delivering a copy of the summons and of the petition to the officer or individual designated by specific statute; however, if there is no statute, then upon the chief executive officer or a clerk, secretary, or other official whose duty it is to maintain the official records of the organization; and

(6) Upon an inmate incarcerated in an institution under the jurisdiction and control of the Department of Corrections, by delivering a copy of the summons and of the petition to the warden or superintendent or the designee of the warden or superintendent of the institution where the inmate is housed. It shall be the duty of the receiving warden or superintendent or a designee to promptly deliver the summons and petition to the inmate named therein. The warden or superintendent or his designee shall reject service of process for any inmate who is not actually present in said institution.

D. SUMMONS AND PETITION. The summons and petition shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. The failure to serve a copy of the petition with the summons is not a ground for dismissal for insufficiency of service of process, but on motion of the party served, the court may extend the time to answer or otherwise plead. If a summons and petition are served by personal delivery, the person serving the summons shall state on the copy that is left with the person served the date that service is made. This provision is not jurisdictional, but if the failure to comply with it prejudices the party served, the court, on motion of the party served, may extend the time to answer or otherwise plead.

E. SUMMONS: TERRITORIAL LIMITS OF EFFECTIVE SERVICE.

1. Service of the summons and petition may be made anywhere within this state in the manner provided by subsection C of this section.

2. When the exercise of jurisdiction is authorized by subsection F of this section, service of the summons and petition may be made outside this state:

(a) by personal delivery in the manner prescribed for service within this state,

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

(d) as directed by the foreign authority in response to a letter rogatory,

(e) in the manner prescribed by paragraph 3 of subsection C of this section only when permitted by subparagraphs a and b of paragraph 3 of subsection C of this section, or

(f) as directed by the court.

3. Proof of service outside this state may be made in the manner prescribed by subsection G of this section, the order pursuant to which the service is made, 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.

4. Service outside this state may be made by an individual permitted to make service of process under the law of this state or under the law of the place in which the service is made or who is designated to make service by a court of this state.

5. When subsection C of this section requires that in order to effect service one or more designated individuals be served, service outside this state under this section must be made upon the designated individual or individuals.

6. (a) A court of this state may order service upon any person who is domiciled or can be found within this state of any document issued in connection with a proceeding in a tribunal outside this state. The order may be made upon application of any interested person or in response to a letter rogatory issued by a tribunal outside this state and shall direct the manner of service.

(b) Service in connection with a proceeding in a tribunal outside this state may be made within this state without an order of court.

(c) Service under this paragraph does not, of itself, require the recognition or enforcement of an order, judgment, or decree rendered outside this state.

F. ASSERTION OF JURISDICTION. A court of this state may exercise jurisdiction on any basis consistent with the Constitution of this state and the Constitution of the United States.

G.RETURN.

1. 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, but the failure to make proof of service does not affect the validity of the service.

2. When process has been served by a sheriff or deputy sheriff and return thereof is filed in the office of the court clerk, a copy of the return shall be sent by the court clerk to the plaintiff’s attorney within three (3) days after the return is filed. If service is made by a person other than a sheriff, deputy sheriff, or licensed process server, such person shall make affidavit thereof. The return shall set forth the name of the person served and the date, place, and method of service.

3. If service was by mail, the person mailing the summons and petition shall endorse on the copy of the summons or order of the court that is filed in the action the date and place of mailing and the date when service was receipted or service was rejected, and he shall attach to the copy of the summons or order a copy of the return receipt or returned envelope, if and when received by him, showing whether the mailing was accepted, refused, or otherwise returned. If the mailing was refused, the return shall also show the date and place of any subsequent mailing pursuant to paragraph 2 of subsection C of this section. When the summons and petition are mailed by the court clerk, the court clerk shall notify the plaintiff’s attorney within three (3) days after receipt of the returned card or envelope showing that the card or envelope has been received.

H. AMENDMENT. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.

Â§ 12-2004.1 Subpoena

A. SUBPOENA; FORM; ISSUANCE.

1. Every subpoena shall:

(a) state the name of the court from which it is issued and the title of the action; and

(b) command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified. A subpoena shall issue from the court where the action is pending, and it may be served at any place within the state. If the action is pending outside of Oklahoma, the district court for the county in which the deposition is to be taken shall issue the subpoena. Proof of service of a notice to take deposition constitutes a sufficient authorization for the issuance by the clerk of subpoenas for the persons named or described therein.

2. A witness shall be obligated upon service of a subpoena to attend a trial or hearing at any place within the state and to attend a deposition or produce or allow inspection of documents at a location that is authorized by subsection B of Section 3230 of this title.

3. The clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service. As an officer of the court, an attorney authorized to practice law in Oklahoma may also issue and sign a subpoena on behalf of an Oklahoma state court.

B. 1. SERVICE. Service of a subpoena upon a person named therein shall be made by delivering or mailing a copy thereof to such person and, if the person’s attendance is demanded, by tendering to him the fees for one (1) day’s attendance and the mileage allowed by law. Service of a subpoena may be accomplished by any person who is eighteen (18) years of age or older. A copy of any subpoena that commands production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by subsection B of Section 2005 of this title. If the subpoena commands production of documents and things or inspection of premises from a nonparty before trial but does not require attendance of a witness, the subpoena shall specify a date for the production or inspection that is at least seven (7) days after the date that the subpoena and copies of the subpoena are served on the witness and all parties, and the subpoena shall include the following language: “In order to allow objections to the production of documents and things to be filed, you should not produce them until the date specified in this subpoena, and if an objection is filed, until the court rules on the objection.”

2. Service of a subpoena by mail may be accomplished by mailing a copy thereof by certified mail with return receipt requested and delivery restricted to the person named in the subpoena. The person serving the subpoena shall make proof of service thereof to the court promptly and, in any event, before the witness is required to testify at the hearing or trial. If service is made by a person other than a sheriff or deputy sheriff, such person shall make affidavit thereof. If service is by mail, the person serving the subpoena shall show in his proof of service the date and place of mailing and attach a copy of the return receipt showing that the mailing was accepted. Failure to make proof of service does not affect the validity of the service, but service of a subpoena by mail shall not be effective if the mailing was not accepted by the person named in the subpoena. Costs of service shall be allowed whether service is made by the sheriff, his deputy, or any other person. When the subpoena is issued on behalf of a state department, board, commission, or legislative committee, fees and mileage shall be paid to the witness at the conclusion of the testimony out of funds appropriated to the state department, board, commission, or legislative committee.

C. PROTECTION OF PERSONS SUBJECT TO SUBPOENAS.

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

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

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

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

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

(2) requires a person to travel to a place beyond the limits allowed under paragraph 2 of subsection A of this section; or

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

(4) subjects a person to undue burden; or

(5) requires production of books, papers, documents or tangible things that fall outside the scope of discovery permitted by Section 3226 of this title.

(b) If a subpoena:

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

(2) 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. However, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.

D. DUTIES IN RESPONDING TO SUBPOENA.

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

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

E. CONTEMPT. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued.

Added by Laws 1985, c. 277, Â§ 4, eff. Nov. 1, 1985. Amended by Laws 1993, c. 351, Â§ 1, eff. Sept. 1, 1993; Laws 1994, c. 343, Â§ 10, eff. Sept. 1, 1994; Laws 1996, c. 61, Â§ 2, eff. Nov. 1, 1996; Laws 1998, c. 374, Â§ 2, eff. Nov. 1, 1998; Laws 1999, c. 293, Â§ 19, eff. Nov. 1, 1999.

Â§12-158.1. Licensure of Private Process Server – Revocation – List of Servers.

A. Service and return of process in civil cases may be by an authorized licensed private process server. The presiding judge of the judicial administrative district in which the county is located, or an associate district judge or district judge of the county as may be designated by the presiding judge, shall be authorized to issue a license to make service of process in civil cases to persons deemed qualified to do so.

B. Any person eighteen (18) years of age or older, of good moral character, and found ethically and mentally fit may obtain a license by filing an application therefor with the court clerk on a verified form to be prescribed by the Administrative Office of the Courts.

C. The applicant filing for a license shall:

1. Pay a license fee of Thirty-five Dollars ($35.00), and the regular docketing, posting, mailing, and filing fees prescribed by law. The license shall contain the name, address, a brief description of the licensee, and, at the discretion of the district court clerk, a recent photograph of the licensee. The license shall state that the licensee is an officer of the court only for the purpose of service of process and only within the county in which the license is issued. The license shall be carried by the licensee while on duty as a private process server. At the end of one (1) calendar year from the date of issuance of the initial license, the license shall be renewed for a period of one (1) year. The license shall be renewed each succeeding year. A fee of Five Dollars ($5.00) shall be charged for each license renewal. Upon an annual filing of a certified copy of a license issued pursuant to the provisions of this paragraph and payment of a filing fee of Ten Dollars ($10.00) to the court clerk of any county within this state, a licensed process server may serve process in that county for the district court having jurisdiction for that county; or

2. Pay a license fee of One Hundred Fifty Dollars ($150.00), and the regular docketing, posting, mailing, and filing fees prescribed by law. The license shall contain the name, address, a brief description of the licensee, and at the discretion of the district court clerk, a recent photograph of the licensee. The license shall state that the licensee is an officer of the court only for the purpose of service of process. The authority of the licensee shall be statewide. The license shall be carried by the licensee while on duty as a private process server. At the end of one (1) calendar year from the date of issuance of the initial license, the license shall be renewed for a period of three (3) years. The license shall be renewed each succeeding three (3) years. A fee of Fifteen Dollars ($15.00) per renewal shall be charged for each license renewal. All fees collected pursuant to this section shall be deposited in the court fund.

D. Upon the filing of an application for a license, the court clerk shall give five (5) days’ notice of hearing by causing the notice to be posted in the courthouse. A copy of the notice shall be mailed to the district attorney, the sheriff, and the chief of police or marshal in the county seat and shall contain the name of the applicant and the time and place the presiding judge or the associate district judge or district judge designated by the presiding judge will act upon the application.

E. If, at the time of consideration of the application or renewal, there are no protests and the applicant appears qualified, the application for the license shall be granted by the presiding judge or such associate district judge or district judge as is designated by the presiding judge and, upon executing bond running to the State of Oklahoma in the amount of Five Thousand Dollars ($5,000.00) for faithful performance of his or her duties and filing the bond with the court clerk, the applicant shall be authorized and licensed to serve civil process statewide.

F. If any citizen of the county files a written protest setting forth objections to the licensing of the applicant, the district court clerk shall so advise the presiding judge or such associate district judge or district judge as is designated by the presiding judge, who shall set a later date for hearing of application and protest. The hearing shall be held within thirty (30) days and after notice to all persons known to be interested.

G. Proof of service of process shall be shown by affidavit as provided for by subsection G of Section 2004 of this title.

H. The district attorney of the county wherein a license authorized under this act has been issued may file a petition in the district court to revoke the license issued to any licensee, as authorized pursuant to the provisions of this section, alleging the violation by the licensee of any of the provisions of the law. After at least ten (10) days’ notice by certified mail to the licensee, the chief or presiding judge, sitting without jury, shall hear the petition and enter an order thereon. If the license is revoked, the licensee shall not be permitted to reapply for a license for a period of five (5) years from the date of revocation. Notwithstanding any other provisions of this section, any licensee whose license has been revoked one time shall pay the sum of One Thousand Dollars ($1,000.00) as a renewal fee. If a second revocation occurs, the chief or presiding judge shall not allow an applicant to renew the license.

I. The court clerk shall keep posted at all times in his office the list of licensed private process servers. Any person in need of a process server’s services may designate one from the names on the list, before presenting summons to the court clerk for issuance, without necessity for individual judicial appointment.

Added by Laws 1976, c. 74, Â§ 1, emerg. eff. April 29, 1976. Amended by Laws 1978, c. 156, Â§ 1, emerg. eff. Oct. 1, 1978; Laws 1979, c. 177, Â§ 1, eff. Oct. 1, 1979; Laws 1984, c. 157, Â§ 1, eff. Nov. 1, 1984; Laws 1985, c. 277, Â§ 1, eff. Nov. 1, 1985; Laws 1987, c. 83, Â§ 1, eff. Nov. 1, 1987; Laws 1998, c. 310, Â§ 2, eff. Nov. 1, 1998.

Case Note:

A private process server may serve process in any county in the State of Oklahoma but his authority is limited to serving process issued by the court of the county or counties that granted the process server his license. Op. Atty. Gen. No. 83-3 (April 6, 1983).

Â§12-158.2. Request of Server – Fees The process served by a licensee, authorized herein, shall be upon a request by the party or person desiring to obtain the services of said licensee. The fees to be paid for the services shall be agreed upon by them, and such fees shall not be collected by, nor handled through, the court clerk’s office.

Added by Laws 1976, c. 74, Â§ 2, emerg. eff. April 29, 1976.

OKLAHOMA RULES OF CIVIL PROCEDURE
Â§ 12-2004 Process
A. SUMMONS: ISSUANCE. Upon filing of the petition, the clerk shall forthwith issue a summons. Upon request of the plaintiff separate or additional summons shall issue against any defendants.
B. SUMMONS: FORM.
1. The summons shall be signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, if any, otherwise, the plaintiff’s address, and the time within which these rules require the defendant to appear and defend, and shall notify the defendant that in case of failure to appear, judgment by default will be rendered against the defendant for the relief demanded in the petition.
2. A judgment by default shall not be different in kind from or exceed in amount that prayed for in either the demand for judgment or in cases not sounding in contract in a notice which has been given the party against whom default judgment is sought. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his or her pleadings.
C. BY WHOM SERVED: PERSON TO BE SERVED.
1. SERVICE BY PERSONAL DELIVERY.
(a) At the election of the plaintiff, process, other than a subpoena, shall be served by a sheriff or deputy sheriff, a person licensed to make service of process in civil cases, or a person specially appointed for that purpose. The court shall freely make special appointments to serve all process, other than a subpoena, under this paragraph.
(b) A summons to be served by the sheriff or deputy sheriff shall be delivered to the sheriff by the court clerk or an attorney of record for the plaintiff. When a summons, subpoena, or other process is to be served by the sheriff or deputy sheriff of another county, the court clerk shall mail it, together with his voucher for the fees collected for the service, to the sheriff of that county. The sheriff shall deposit the voucher in the Sheriff’s Service Fee Account created pursuant to Section 514.1 of Title 19 of the Oklahoma Statutes. The sheriff or deputy sheriff shall serve the process in the manner that other process issued out of the court of the sheriff’s own county is served. A summons to be served by a person licensed to make service of process in civil cases or by a person specially appointed for that purpose shall be delivered by an attorney of record for the plaintiff to such person.
(c) Service shall be made as follows:
(1) Upon an individual other than an infant who is less than fifteen (15) years of age or an incompetent person, by delivering a copy of the summons and of the petition personally or by leaving copies thereof at the person’s dwelling house or usual place of abode with some person then residing therein who is fifteen (15) years of age or older or by delivering a copy of the summons and of the petition to an agent authorized by appointment or by law to receive service of process;
(2) Upon an infant who is less than fifteen (15) years of age, by serving the summons and petition personally and upon either of the infant’s parents or guardian, or if they cannot be found, then upon the person having the care or control of the infant or with whom the infant lives; and upon an incompetent person by serving the summons and petition personally and upon the incompetent person’s guardian;
(3) 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 petition to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant;
(4) Upon the United States or an officer or agency thereof in the manner specified by Federal Rule of Civil Procedure 4;
(5) Upon a state, county, school district, public trust or municipal corporation or other governmental organization thereof subject to suit, by delivering a copy of the summons and of the petition to the officer or individual designated by specific statute; however, if there is no statute, then upon the chief executive officer or a clerk, secretary, or other official whose duty it is to maintain the official records of the organization; and
(6) Upon an inmate incarcerated in an institution under the jurisdiction and control of the Department of Corrections, by delivering a copy of the summons and of the petition to the warden or superintendent or the designee of the warden or superintendent of the institution where the inmate is housed. It shall be the duty of the receiving warden or superintendent or a designee to promptly deliver the summons and petition to the inmate named therein. The warden or superintendent or his designee shall reject service of process for any inmate who is not actually present in said institution.
D. SUMMONS AND PETITION. The summons and petition shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. The failure to serve a copy of the petition with the summons is not a ground for dismissal for insufficiency of service of process, but on motion of the party served, the court may extend the time to answer or otherwise plead. If a summons and petition are served by personal delivery, the person serving the summons shall state on the copy that is left with the person served the date that service is made. This provision is not jurisdictional, but if the failure to comply with it prejudices the party served, the court, on motion of the party served, may extend the time to answer or otherwise plead.
E. SUMMONS: TERRITORIAL LIMITS OF EFFECTIVE SERVICE.
1. Service of the summons and petition may be made anywhere within this state in the manner provided by subsection C of this section.
2. When the exercise of jurisdiction is authorized by subsection F of this section, service of the summons and petition may be made outside this state:
(a) by personal delivery in the manner prescribed for service within this state,
(b) in the manner prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction,
(c) in the manner prescribed by paragraph 2 of subsection C of this section,
(d) as directed by the foreign authority in response to a letter rogatory,
(e) in the manner prescribed by paragraph 3 of subsection C of this section only when permitted by subparagraphs a and b of paragraph 3 of subsection C of this section, or
(f) as directed by the court.
3. Proof of service outside this state may be made in the manner prescribed by subsection G of this section, the order pursuant to which the service is made, 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.
4. Service outside this state may be made by an individual permitted to make service of process under the law of this state or under the law of the place in which the service is made or who is designated to make service by a court of this state.
5. When subsection C of this section requires that in order to effect service one or more designated individuals be served, service outside this state under this section must be made upon the designated individual or individuals.
6. (a) A court of this state may order service upon any person who is domiciled or can be found within this state of any document issued in connection with a proceeding in a tribunal outside this state. The order may be made upon application of any interested person or in response to a letter rogatory issued by a tribunal outside this state and shall direct the manner of service.
(b) Service in connection with a proceeding in a tribunal outside this state may be made within this state without an order of court.
(c) Service under this paragraph does not, of itself, require the recognition or enforcement of an order, judgment, or decree rendered outside this state.
F. ASSERTION OF JURISDICTION. A court of this state may exercise jurisdiction on any basis consistent with the Constitution of this state and the Constitution of the United States.
G.RETURN.
1. 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, but the failure to make proof of service does not affect the validity of the service.
2. When process has been served by a sheriff or deputy sheriff and return thereof is filed in the office of the court clerk, a copy of the return shall be sent by the court clerk to the plaintiff’s attorney within three (3) days after the return is filed. If service is made by a person other than a sheriff, deputy sheriff, or licensed process server, such person shall make affidavit thereof. The return shall set forth the name of the person served and the date, place, and method of service.
3. If service was by mail, the person mailing the summons and petition shall endorse on the copy of the summons or order of the court that is filed in the action the date and place of mailing and the date when service was receipted or service was rejected, and he shall attach to the copy of the summons or order a copy of the return receipt or returned envelope, if and when received by him, showing whether the mailing was accepted, refused, or otherwise returned. If the mailing was refused, the return shall also show the date and place of any subsequent mailing pursuant to paragraph 2 of subsection C of this section. When the summons and petition are mailed by the court clerk, the court clerk shall notify the plaintiff’s attorney within three (3) days after receipt of the returned card or envelope showing that the card or envelope has been received.
H. AMENDMENT. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.
Â§ 12-2004.1 Subpoena
A. SUBPOENA; FORM; ISSUANCE.
1. Every subpoena shall:
(a) state the name of the court from which it is issued and the title of the action; and
(b) command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified. A subpoena shall issue from the court where the action is pending, and it may be served at any place within the state. If the action is pending outside of Oklahoma, the district court for the county in which the deposition is to be taken shall issue the subpoena. Proof of service of a notice to take deposition constitutes a sufficient authorization for the issuance by the clerk of subpoenas for the persons named or described therein.
2. A witness shall be obligated upon service of a subpoena to attend a trial or hearing at any place within the state and to attend a deposition or produce or allow inspection of documents at a location that is authorized by subsection B of Section 3230 of this title.
3. The clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service. As an officer of the court, an attorney authorized to practice law in Oklahoma may also issue and sign a subpoena on behalf of an Oklahoma state court.
B. 1. SERVICE. Service of a subpoena upon a person named therein shall be made by delivering or mailing a copy thereof to such person and, if the person’s attendance is demanded, by tendering to him the fees for one (1) day’s attendance and the mileage allowed by law. Service of a subpoena may be accomplished by any person who is eighteen (18) years of age or older. A copy of any subpoena that commands production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by subsection B of Section 2005 of this title. If the subpoena commands production of documents and things or inspection of premises from a nonparty before trial but does not require attendance of a witness, the subpoena shall specify a date for the production or inspection that is at least seven (7) days after the date that the subpoena and copies of the subpoena are served on the witness and all parties, and the subpoena shall include the following language: “In order to allow objections to the production of documents and things to be filed, you should not produce them until the date specified in this subpoena, and if an objection is filed, until the court rules on the objection.”
2. Service of a subpoena by mail may be accomplished by mailing a copy thereof by certified mail with return receipt requested and delivery restricted to the person named in the subpoena. The person serving the subpoena shall make proof of service thereof to the court promptly and, in any event, before the witness is required to testify at the hearing or trial. If service is made by a person other than a sheriff or deputy sheriff, such person shall make affidavit thereof. If service is by mail, the person serving the subpoena shall show in his proof of service the date and place of mailing and attach a copy of the return receipt showing that the mailing was accepted. Failure to make proof of service does not affect the validity of the service, but service of a subpoena by mail shall not be effective if the mailing was not accepted by the person named in the subpoena. Costs of service shall be allowed whether service is made by the sheriff, his deputy, or any other person. When the subpoena is issued on behalf of a state department, board, commission, or legislative committee, fees and mileage shall be paid to the witness at the conclusion of the testimony out of funds appropriated to the state department, board, commission, or legislative committee.
C. PROTECTION OF PERSONS SUBJECT TO SUBPOENAS.
1. A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney, or both, in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney’s fee.
2. (a) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.
(b) Subject to paragraph 2 of subsection D of this section, a person commanded to produce and permit inspection and copying or any party may, within fourteen (14) days after service of the subpoena or before the time specified for compliance if such time is less than fourteen (14) days after service, serve written objection to inspection or copying of any or all of the designated materials or of the premises. If the objection is made by the witness, the witness shall serve the objection on all parties; if objection is made by a party, the party shall serve the objection on the witness and all other parties. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.
3. (a) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it:
(1) fails to allow reasonable time for compliance; or
(2) requires a person to travel to a place beyond the limits allowed under paragraph 2 of subsection A of this section; or
(3) requires disclosure of privileged or other protected matter and no exception or waiver applies; or
(4) subjects a person to undue burden; or
(5) requires production of books, papers, documents or tangible things that fall outside the scope of discovery permitted by Section 3226 of this title.
(b) If a subpoena:
(1) requires disclosure of a trade secret or other confidential research, development, or commercial information; or
(2) 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. However, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.
D. DUTIES IN RESPONDING TO SUBPOENA.
1. A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.
2. When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.
E. CONTEMPT. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued.Added by Laws 1985, c. 277, Â§ 4, eff. Nov. 1, 1985. Amended by Laws 1993, c. 351, Â§ 1, eff. Sept. 1, 1993; Laws 1994, c. 343, Â§ 10, eff. Sept. 1, 1994; Laws 1996, c. 61, Â§ 2, eff. Nov. 1, 1996; Laws 1998, c. 374, Â§ 2, eff. Nov. 1, 1998; Laws 1999, c. 293, Â§ 19, eff. Nov. 1, 1999.
Â§12-158.1. Licensure of Private Process Server – Revocation – List of Servers.
A. Service and return of process in civil cases may be by an authorized licensed private process server. The presiding judge of the judicial administrative district in which the county is located, or an associate district judge or district judge of the county as may be designated by the presiding judge, shall be authorized to issue a license to make service of process in civil cases to persons deemed qualified to do so.
B. Any person eighteen (18) years of age or older, of good moral character, and found ethically and mentally fit may obtain a license by filing an application therefor with the court clerk on a verified form to be prescribed by the Administrative Office of the Courts.
C. The applicant filing for a license shall:
1. Pay a license fee of Thirty-five Dollars ($35.00), and the regular docketing, posting, mailing, and filing fees prescribed by law. The license shall contain the name, address, a brief description of the licensee, and, at the discretion of the district court clerk, a recent photograph of the licensee. The license shall state that the licensee is an officer of the court only for the purpose of service of process and only within the county in which the license is issued. The license shall be carried by the licensee while on duty as a private process server. At the end of one (1) calendar year from the date of issuance of the initial license, the license shall be renewed for a period of one (1) year. The license shall be renewed each succeeding year. A fee of Five Dollars ($5.00) shall be charged for each license renewal. Upon an annual filing of a certified copy of a license issued pursuant to the provisions of this paragraph and payment of a filing fee of Ten Dollars ($10.00) to the court clerk of any county within this state, a licensed process server may serve process in that county for the district court having jurisdiction for that county; or
2. Pay a license fee of One Hundred Fifty Dollars ($150.00), and the regular docketing, posting, mailing, and filing fees prescribed by law. The license shall contain the name, address, a brief description of the licensee, and at the discretion of the district court clerk, a recent photograph of the licensee. The license shall state that the licensee is an officer of the court only for the purpose of service of process. The authority of the licensee shall be statewide. The license shall be carried by the licensee while on duty as a private process server. At the end of one (1) calendar year from the date of issuance of the initial license, the license shall be renewed for a period of three (3) years. The license shall be renewed each succeeding three (3) years. A fee of Fifteen Dollars ($15.00) per renewal shall be charged for each license renewal. All fees collected pursuant to this section shall be deposited in the court fund.
D. Upon the filing of an application for a license, the court clerk shall give five (5) days’ notice of hearing by causing the notice to be posted in the courthouse. A copy of the notice shall be mailed to the district attorney, the sheriff, and the chief of police or marshal in the county seat and shall contain the name of the applicant and the time and place the presiding judge or the associate district judge or district judge designated by the presiding judge will act upon the application.
E. If, at the time of consideration of the application or renewal, there are no protests and the applicant appears qualified, the application for the license shall be granted by the presiding judge or such associate district judge or district judge as is designated by the presiding judge and, upon executing bond running to the State of Oklahoma in the amount of Five Thousand Dollars ($5,000.00) for faithful performance of his or her duties and filing the bond with the court clerk, the applicant shall be authorized and licensed to serve civil process statewide.
F. If any citizen of the county files a written protest setting forth objections to the licensing of the applicant, the district court clerk shall so advise the presiding judge or such associate district judge or district judge as is designated by the presiding judge, who shall set a later date for hearing of application and protest. The hearing shall be held within thirty (30) days and after notice to all persons known to be interested.
G. Proof of service of process shall be shown by affidavit as provided for by subsection G of Section 2004 of this title.
H. The district attorney of the county wherein a license authorized under this act has been issued may file a petition in the district court to revoke the license issued to any licensee, as authorized pursuant to the provisions of this section, alleging the violation by the licensee of any of the provisions of the law. After at least ten (10) days’ notice by certified mail to the licensee, the chief or presiding judge, sitting without jury, shall hear the petition and enter an order thereon. If the license is revoked, the licensee shall not be permitted to reapply for a license for a period of five (5) years from the date of revocation. Notwithstanding any other provisions of this section, any licensee whose license has been revoked one time shall pay the sum of One Thousand Dollars ($1,000.00) as a renewal fee. If a second revocation occurs, the chief or presiding judge shall not allow an applicant to renew the license.
I. The court clerk shall keep posted at all times in his office the list of licensed private process servers. Any person in need of a process server’s services may designate one from the names on the list, before presenting summons to the court clerk for issuance, without necessity for individual judicial appointment.Added by Laws 1976, c. 74, Â§ 1, emerg. eff. April 29, 1976. Amended by Laws 1978, c. 156, Â§ 1, emerg. eff. Oct. 1, 1978; Laws 1979, c. 177, Â§ 1, eff. Oct. 1, 1979; Laws 1984, c. 157, Â§ 1, eff. Nov. 1, 1984; Laws 1985, c. 277, Â§ 1, eff. Nov. 1, 1985; Laws 1987, c. 83, Â§ 1, eff. Nov. 1, 1987; Laws 1998, c. 310, Â§ 2, eff. Nov. 1, 1998.
Case Note:
A private process server may serve process in any county in the State of Oklahoma but his authority is limited to serving process issued by the court of the county or counties that granted the process server his license. Op. Atty. Gen. No. 83-3 (April 6, 1983).
Â§12-158.2. Request of Server – Fees The process served by a licensee, authorized herein, shall be upon a request by the party or person desiring to obtain the services of said licensee. The fees to be paid for the services shall be agreed upon by them, and such fees shall not be collected by, nor handled through, the court clerk’s office.Added by Laws 1976, c. 74, Â§ 2, emerg. eff. April 29, 1976.

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Nebraska Foreclosure Process Server Laws

By admin | April 9, 2010

25-505.01. Service of summons; methods.

(1) Unless otherwise limited by statute or by the court, a plaintiff may elect to have service made by any of the following methods:

(a) Personal service which shall be made by leaving the summons with the individual to be served;

(b) Residence service which shall be made by leaving the summons at the usual place of residence of the individual to be served, with some person of suitable age and discretion residing therein; or

(i) within ten days of issuance, sending the summons to the defendant by certified mail with a return receipt requested showing to whom and where delivered and the date of delivery, and

(ii) filing with the court proof of service with the signed receipt attached.

(2) Failure to make service by the method elected by the plaintiff does not affect the validity of the service.

Source: Laws 1983, LB 447, Â§ 22; Laws 1984, LB 845, Â§ 21.

Cross Reference: Workers’ compensation cases, manner of service, see sections 48-174, 48-175, 48-175.01, and 48-190.

Case Note:

Plaintiff may elect to have service made by any of the methods specified in the statute. West Town Homeowners Assn. v. Schneider, 221 Neb. 674, 380 N.W.2d 265 (1986).

25-506.01. Process; by whom served.

(1) Unless the plaintiff has elected service by certified mail, the summons shall be served by the sheriff of the county where service is made, by a person authorized by section 25-507 or otherwise authorized by law, or by a person, corporation, partnership, or limited liability company not a party to the action specially appointed by the court for that purpose.

(2) Service by certified mail shall be made by plaintiff or plaintiff’s attorney.

Source: Laws 1983, LB 447, Â§ 23; Laws 1994, LB 1224, Â§ 36; Laws 1999, LB 319, Â§ 1. Effective date August 28, 1999.

Cross Reference: Workers’ compensation cases, manner of service, see sections 48-174, 48-175, 48-175.01, and 48-190.

25-507. Process server; requirements; bond; cost.

(1) In any county which does not have a person contracted as a constable pursuant to section 25-2229, any person twenty-one years of age or older or a corporation, partnership, or limited liability company that satisfies the requirements of subsection (2) of this section shall have the same power as a sheriff to execute any service of process or order.

(2) Any person or entity may exercise the powers provided in subsection (1) of this section if such person or entity

(a) is not a party to the action,

(b) is not related to a party to the action,

(d) is not a public official employed by the county where service is made whose duties include service of process, and

(e) furnishes a good and sufficient corporate surety bond in the sum of fifteen thousand dollars, such bond being conditioned upon such person or entity faithfully and truly performing the duties of process server.

(3) Evidence of the corporate surety bond shall be provided to the clerk of each court in which such person or entity executes service of process or orders. Such person or entity is not required to furnish more than one bond to execute service of process or orders in any state court in the State of Nebraska. When service of process is made by such person or entity authorized by this section, proof of such service of process shall be shown by an affidavit.

(4) The cost of service of process is taxable as a court cost, and when service of process is made by such person or entity other than a sheriff the cost taxable as a court cost is the lesser of the actual amount incurred for service of process or orders or the statutory fee set for sheriffs in section 33-117.

Source: Laws 1999, LB 319, Â§ 2. Effective date August 28, 1999.

25-507.01. Summons; proof of service; return date.

(1) Within twenty days after the date of issue, the person serving the summons, other than by certified mail, shall make proof of service to the court stating the time, place, including the address if applicable, name of the person with whom the summons was left, and method of service, or return the unserved summons to the court with a statement of the reason for the failure to serve.

(2) When service is by certified mail, the plaintiff or plaintiff’s attorney shall file proof of service within ten days after return of the signed receipt.

(3) Failure to make proof of service or delay in doing so does not affect the validity of the service.

Source: Laws 1983, LB 447, Â§ 24.

Cross Reference: Workers’ compensation cases, manner and time of service, see sections 48-174, 48-175, 48-175.01, and 48-190.

25-508.01. Service on individual.

(1) An individual party, other than a person under the age of fourteen years, may be served by personal, residence, or certified mail service.

(2) A party under the age of fourteen years may be served by personal, residence, or certified mail service upon an adult person with whom the minor resides and who is the minor’s parent, guardian, or person having care of the minor. If none of these can be found, a party under the age of fourteen years may be served by personal service.

(3) If the person to be served is an incapacitated person for whom a conservator or guardian has been appointed or is confined in any institution, notice of the service shall be given to the conservator, guardian, or superintendent or similar official of the institution. Failure to give such notice does not affect the validity of the service on the incapacitated person.

Source: Laws 1983, LB 447, Â§ 25.

Case Note:

Although subsection (3) of this section requires that where summons is served on an incapacitated person, notice of such service shall be given to the guardian, it also provides that failure to give such notice will not affect the validity of the service. In re Interest of A.M.K., 227 Neb. 888, 420 N.W.2d 718 (1988).

25-509.01. Service on corporation. A corporation may be served by personal, residence, or certified mail service upon any officer, director, managing agent, or registered agent, or by leaving the process at the corporation’s registered office with a person employed therein, or by certified mail service to the corporation’s registered office. 25-509.01. Service on corporation. A corporation may be served by personal, residence, or certified mail service upon any officer, director, managing agent, or registered agent, or by leaving the process at the corporation’s registered office with a person employed therein, or by certified mail service to the corporation’s registered office.

Source: Laws 1983, LB 447, Â§ 26.

Cross References: For process and service on foreign insurance corporation, see sections 44-135, 44-2009 to 44-2013, and 44-5507. Registered office of corporation, see sections 21-1909, 21-1971, 21-2034, and 21-20,177.

25-510.02. Service on state or political subdivision.

(1) The State of Nebraska, any state agency as defined in section 81-8,210, and any employee of the state as defined in section 81-8,210 sued in an official capacity may be served by leaving the summons at the office of the Attorney General with the Attorney General, deputy attorney general, or someone designated in writing by the Attorney General, or by certified mail service addressed to the office of the Attorney General.

(2) Any county, city, or village of this state may be served by personal, residence, or certified mail service upon the chief executive officer, or clerk.

(3) Any political subdivision of this state, as defined in subdivision (1) of section 13-903, other than a county, city, or village, may be served by personal, residence, or certified mail service upon the chief executive officer, clerk, secretary, or other official whose duty it is to maintain the official records, or any member of the governing board or body, or by certified mail service to the principal office of the political subdivision.

Source: Laws 1983, LB 447, Â§ 27.

Case Note:

Pursuant to this section, the Attorney General must be served on behalf of the committee and that service may be accomplished by one of the methods for which provision is made in subsection (1). Ray v. Nebraska Crime Victim’s Reparations Comm., 1 Neb. App. 130, 487 N.W.2d 590 (1992).

25-511.02. Service on dissolved corporation. A dissolved corporation may be served by personal, residence, or certified mail service upon any appointed receiver. If there is no receiver, a dissolved corporation may be served by personal, residence, or certified mail service upon any person who at the time of dissolution was an officer, director, managing agent, or registered agent, or upon any officer or director designated in the last annual report filed with the Secretary of State.

Source: Laws 1983, LB 447, Â§ 28.

25-512.01. Service on partnership. A partnership or limited partnership may be served by personal, residence, or certified mail service upon any partner except a limited partner, or by certified mail service at its usual place of business, or the process may be left at its usual place of business with an employee of the partnership or limited partnership.

Source: Laws 1983, LB 447, Â§ 29.

Cross Reference: Registration and agent for service of process of foreign limited partnerships, see section 67-281.

25-513.01. Service on unincorporated association. An unincorporated association may be served by personal, residence, or certified mail service upon an officer or managing agent, or by certified mail service to the association at its usual place of business, or by leaving the process at its usual place of business with an employee of the unincorporated association.

Source: Laws 1983, LB 447, Â§ 30.

25-514.01. Service on agent. Any party may be served by personal, residence, or certified mail service upon an agent authorized by appointment or by law to receive service of process.

Source: Laws 1983, LB 447, Â§ 31.

25-516.01. Voluntary appearance; special appearance.

(1) The voluntary appearance of the party is equivalent to service.

(2) Prior to filing any other pleading or motion, a special appearance may be made for the purpose of objecting to the jurisdiction of the court over the person of the defendant. The defendant’s assertion of a claim for affirmative relief by way of counterclaim, cross-claim, or third-party claim waives any objection that the court erred in overruling the special appearance. The defendant’s participation in proceedings on any issue other than jurisdiction over the person waives any objection that the court erred in overruling the special appearance except the objection that the defendant is not amenable to process issued by a court of this state.

Source: Laws 1983, LB 447, Â§ 32.

25-517.02. Substitute and constructive service. Upon motion and showing by affidavit that service cannot be made with reasonable diligence by any other method provided by statute, the court may permit service to be made (1) by leaving the process at the defendant’s usual place of residence and mailing a copy by first-class mail to the defendant’s last-known address, (2) by publication, or (3) by any manner reasonably calculated under the circumstances to provide the party with actual notice of the proceedings and an opportunity to be heard.

Source: Laws 1983, LB 447, Â§ 33.

Cross References: Actions against unknown defendants, see section 25-321. Actions to quiet title, see section 25-21,118.

25-518.01. Service by publication. Service may be made by publication (1) when such service is elsewhere provided for by statute or (2) when ordered by the court.

Source: Laws 1983, LB 447, Â§ 34.

25-519. Service by publication; how made; contents. The publication shall be made once in each week for three successive weeks in some newspaper printed in the county where the petition is filed if there is any printed in such county and, if there is not, in some newspaper printed in this state of general circulation in that county. It must contain a summary statement of the object and prayer of the petition, mention the court wherein it is filed, and notify the person or persons thus to be served when they are required to answer.

Source: R.S. 1867, Code Â§ 79, p. 405; R.S. 1913, Â§ 7642; C.S. 1922, Â§ 8585; C.S. 1929, Â§ 20-519; R.S. 1943, Â§ 25-519; Laws 1971, LB 47, Â§ 1; Laws 1996, LB 299, Â§ 19. Effective date April 17, 1996.

Cross Reference: For publication of legal notices, see sections 25-2227, 25-2228, 33-141, and 33-142.

Case Notes – How Made:

1. Publication seven times in semi-weekly newspaper was not sufficient in foreclosure of tax lien. Davis v. American Inv. & Trust Co., 94 Neb. 427, 143 N.W. 464 (1913).

2. Publications need not be on same day of week; “week” defined. Burr v. Finch, 91 Neb. 417, 136 N.W. 72 (1912).

3. Notice must be published in all regular issues during week. Smith v. Potter, 90 Neb. 298, 133 N.W. 437 (1911); Claypool v. Robb, 90 Neb. 193, 133 N.W. 178 (1911).

4. Notice takes place of summons; publication requiring defendant to answer on second Monday is irregular and may be set aside on motion. Calkins v. Miller, 55 Neb. 601, 75 N.W. 1108 (1898).

5. Four weekly publications are sufficient. Taylor v. Coots, 32 Neb. 30, 48 N.W. 964 (1891); Fouts v. Mann, 15 Neb. 172, 18 N.W. 64 (1883).

6. Notice requiring defendant to answer in forenoon is valid; but has whole day to answer. Armstrong v. Middlestadt, 22 Neb. 711, 36 N.W. 151 (1888).

7. Notice once each week for four successive weeks is completed upon distribution of last publication. Davis v. Huston, 15 Neb. 28, 16 N.W. 820 (1883).

Case Notes – Contents:

1. Publication notice must contain a summary statement of the object and prayer of the petition, mention the court wherein it is filed, and notify the person or persons to be served when they are required to answer. Coffin v. Maitland, 146 Neb. 477, 20 N.W.2d 310 (1945).

2. Plaintiff’s cause of action is not required to be set out in notice. Smith v. Potter, 92 Neb. 39, 137 N.W. 854 (1912).

3. Notice stating that action was for “partition” of lands was sufficient without reciting “partition or sale.” McCormick v. Paddock, 20 Neb. 486, 30 N.W. 602 (1886).

4. Notice in attachment containing general description of property attached is not void. Grebe v. Jones, 15 Neb. 312, 18 N.W. 81 (1883).

Case Note – Miscellaneous:

1. Notice to nonresident herein complied with this section. Armstrong v. Bates, 94 Neb. 462, 143 N.W. 477 (1913).

25-520. Service by publication; when complete; how proved; affidavit of publication. Service by publication shall be deemed complete when it shall have been made in the manner and for the time prescribed in section 25-519; and such service shall be proved by the affidavit of the printer or his foreman or principal clerk, or other person knowing the same.

Source: R.S. 1867, Code Â§ 80, p. 406; R.S. 1913, Â§ 7643; C.S. 1922, Â§ 8586; C.S. 1929, Â§ 20-520.

Case Notes:

1. In tax foreclosure case, section is strictly construed. Armstrong v. Griffith, 94 Neb. 515, 143 N.W. 461 (1913).

2. Service is complete upon distribution of paper containing its fourth successive weekly insertion. Claypool v. Robb, 90 Neb. 193, 133 N.W. 178 (1911).

3. Any one having actual knowledge of facts may make affidavit. Taylor v. Coots, 32 Neb. 30, 48 N.W. 964 (1891).

4. Court may permit amendment of affidavit to conform to facts. Britton v. Larson, 23 Neb. 806, 37 N.W. 681 (1888).

25-520.01. Service by publication; mailing of published notice; requirements; waiver; when mailing not required. In any action or proceeding of any kind or nature, as defined in section 25-520.02, where a notice by publication is given as authorized by law, a party instituting or maintaining the action or proceeding with respect to notice or his attorney shall within five days after the first publication of notice send by United States mail a copy of such published notice to each and every party appearing to have a direct legal interest in such action or proceeding whose name and post office address are known to him. Proof by affidavit of the mailing of such notice shall be made by the party or his attorney and shall be filed with the officer with whom filings are required to be made in such action or proceeding within ten days after mailing of such notice. Such affidavit of mailing of notice shall further be required to state that such party and his attorney, after diligent investigation and inquiry, were unable to ascertain and do not know the post office address of any other party appearing to have a direct legal interest in such action or proceeding other than those to whom notice has been mailed in writing. It shall not be necessary to serve the notice prescribed by this section upon any competent person, fiduciary, partnership, or corporation, who has waived notice in writing, entered a voluntary appearance, or has been personally served with summons or notice in such proceeding.

Source: Laws 1957, c. 80, Â§ 1, p. 325; Laws 1959, c. 97, Â§ 1, p. 416.

Case Notes:

1. County court which obtained jurisdiction of res of estate upon filing of petition retains jurisdiction until service of notice is perfected or until matter is abandoned. Fischer v. Lingle, 195 Neb. 108, 237 N.W.2d 110 (1975).

2. A mortgagor in a foreclosure proceeding is not entitled to personal service of the published notice of sale. Hollstein v. Adams, 187 Neb. 781, 194 N.W.2d 216 (1972).

3. Copy of notice, mailed hereunder, that a will and codicil are being offered for probate is sufficient to put party upon inquiry as to documents offered. Flint v. Panter, 187 Neb. 615, 193 N.W.2d 279 (1970).

4. This section does not apply to notice of dissolution of corporation. Christensen v. Boss, 179 Neb. 429, 138 N.W.2d 716 (1965).

5. First cousins of testator were not prima facie heirs-at-law, and hence were not required to be notified by mail of pending probate of will. Estate of Colman v. Redford, 179 Neb. 270, 137 N.W.2d 822 (1965).

6. Notice by mail is not required to be given to the holder of a claim for unliquidated damages. Farmers Co-op. Mercantile Co. v. Sidner, 175 Neb. 94, 120 N.W.2d 537 (1963).

7. Notice by mail was not required to be given to property owner of intention by municipality to pass resolution of necessity for constructing sewer system. Jones v. Village of Farnam, 174 Neb. 704, 119 N.W.2d 157 (1963).

8. Notice was not required to be sent to all owners of land within school district of proceedings to change boundaries thereof. Lindgren v. School Dist. of Bridgeport, 170 Neb. 279, 102 N.W.2d 599 (1960).

25-520.02. Action or proceeding, defined. The term action or proceeding means all actions and proceedings in any court and any action or proceeding before the governing bodies of municipal corporations, public corporations, and political subdivisions for the equalization of special assessments or assessing the cost of any public improvement.

Source: Laws 1957, c. 80, Â§ 2, p. 326.

Case Notes:

1. The act, of which this section is a part, is not amendatory, but is new and independent legislation. Farmers Co-op. Mercantile Co. v. Sidner, 175 Neb. 94, 120 N.W.2d 537 (1963).

2. Resolution of necessity for constructing a sewer system was not within purview of this section. Jones v. Village of Farnam, 174 Neb. 704, 119 N.W.2d 157 (1963).

3. Statute does not contemplate personal notice must be given to a class on matters of general public concern. Lindgren v. School Dist. of Bridgeport, 170 Neb. 279, 102 N.W.2d 599 (1960).

25-520.03. Sections, how construed. Sections 25-520.01 to 25-520.03 are intended by the Legislature to be cumulative and supplemental to existing legislation. They are deemed to be a matter of general statewide concern. Such sections apply to all parties authorized by law to give notice by publication, including the State of Nebraska, its governmental subdivisions, and all public and municipal corporations.

Source: Laws 1957, c. 80, Â§ 3, p. 326.

Case Note:

1. The act, of which this section is a part, is not amendatory, but is new and independent legislation. Farmers Co-op. Mercantile Co. v. Sidner, 175 Neb. 94, 120 N.W.2d 537 (1963).

25-522. Service by publication; designation of newspaper. It shall be the lawful right of any plaintiff or petitioner in any suit, action or proceeding, pending or prosecuted in any of the courts of this state, in which it is necessary to publish in a newspaper any notice or copy of an order, growing out of, or connected with, such action or proceeding, either by himself or his attorney of record, to designate in what newspaper such notice or copy of order shall be published; and it shall be the duty of the judges of the district court, county judges, or any other officer charged with the duty of ordering, directing or superintending the publication of any of such notices, or copies of orders, to strictly comply with such designations when made in accordance with the provisions of this section.

Source: Laws 1909, c. 94, Â§ 1, p. 399; R.S. 1913, Â§ 7645; C.S. 1922, Â§ 8588; C.S. 1929, Â§ 20-522.

25-523. Legal newspaper, defined; prior publications legalized. No newspaper shall be considered a legal newspaper for the publication of legal and other official notices unless the same shall have a bona fide circulation of at least three hundred paid subscriptions weekly, and shall have been published within the county for fifty-two successive weeks prior to the publication of such notice, and be printed, either in whole or in part, in an office maintained at the place of publication; PROVIDED, that nothing in this section shall invalidate the publication in a newspaper which has suspended publication or been printed outside of the county, on account of fire, flood or other unavoidable accident, for not to exceed ten weeks, in the year last preceding the first publication of a legal notice, advertising or publication; PROVIDED FURTHER, that all publications made prior to May 22, 1941, in a newspaper which has, on account of flood, fire or other unavoidable accident, suspended publication or been printed in an office outside of the county, are hereby legalized; PROVIDED FURTHER, that all newspapers, otherwise complying herewith, which have, on account of flood, fire or other unavoidable accident, suspended publication or been printed in an office outside of the county, for not to exceed ten weeks in any year, are hereby legalized; AND PROVIDED FURTHER, that the publication of legal or other official notices in the English language in foreign language newspapers published within the county for fifty-two successive weeks prior to the publication of such a notice, and printed either in whole or in part in an office maintained at the place of publication, shall also be legal.

Source: Laws 1915, c. 221, Â§ 1, p. 490; Laws 1919, c. 133, Â§ 1, p. 309; C.S. 1922, Â§ 8589; C.S. 1929, Â§ 20-523; Laws 1935, c. 40, Â§ 1, p. 157; Laws 1941, c. 31, Â§ 1, p. 139; C.S.Supp.,1941, Â§ 20-523; Laws 1943, c. 44, Â§ 1(1), p. 189; R.S. 1943, Â§ 25-523; Laws 1972, LB 661, Â§ 17.

Case Notes:

1. Mechanical act of printing legal newspaper may be performed outside county of place of publication. Wymore Arbor State, Inc. v. Korinek, 182 Neb. 557, 156 N.W.2d 24 (1968).

2. Particular requirements of this section need not be recited in printer’s proof of publication. Seymour v. Lawson, 111 Neb. 770, 197 N.W. 623 (1926).

25-525. Judgment on constructive service; how opened; procedure. A party against whom a judgment or order has been rendered without other service than by publication in a newspaper, may, at any time within five years after the date of judgment or order, have the same opened, and be let in to defend; before the judgment or order shall be opened, the applicant shall give notice to the adverse party of his intention to make such application, and shall file a full answer to the petition, pay all costs, if the court requires them to be paid, and make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense; but the title to any property, the subject of the judgment or order sought to be opened, which by it, or in consequence of it, shall have passed to a purchaser in good faith, shall not be affected by any proceedings under this section, nor shall they affect the title of any property sold before judgment under an attachment. The adverse party, on the hearing of an application to open a judgment or order, as provided by this section, shall be allowed to present counter-affidavits, to show that during the pendency of the action the applicant had notice thereof in time to appear in court and make his defense.

Source: R.S. 1867, Code Â§ 82, p. 406; R.S. 1913, Â§ 7646; C.S. 1922, Â§ 8590; C.S. 1929, Â§ 20-525.

Case Notes-Sufficiency of Application:

1. Before party can have judgment opened, it must appear that he had no actual notice of the pendency of the action in time to make defense. McNally v. McNally, 152 Neb. 845, 43 N.W.2d 170 (1950).

2. Verified petition filed by parties seeking to open up judgment under this section was equivalent to affidavit and answer required thereunder. Nelson v. Nelson, 113 Neb. 453, 203 N.W. 640 (1925).

3. Application was sufficient to authorize vacation of judgment. Eno v. Lampshire, 108 Neb. 265, 187 N.W. 782 (1922).

4. Ordinarily only party can make affidavit, but may be made by attorney where party is nonresident. Cass v. Nitsch, 81 Neb. 228, 115 N.W. 753 (1908).

5. On application, defendant cannot contest sufficiency of original petition; “full answer” means meritorious answer. Oakes v. Ziemer, 62 Neb. 603, 87 N.W. 350 (1901).

6. To permit a defendant to open up decree, full answer to the merits must be presented. Oakes v. Ziemer, 61 Neb. 6, 84 N.W. 409 (1900).

7. Defendant must show he did not have actual notice of suit in time to make defense; adverse party may present counteraffidavits. Stover v. Hough, 47 Neb. 789, 66 N.W. 825 (1896).

8. Party seeking to have judgment opened up must allege and prove bona fides. McGregor v. Eastern B. & L. Assn., 5 Neb. 563, 99 N.W. 509 (1904).

9. Motion to vacate judgment after term must tender valid defense which court will adjudge prima facie valid. Waters v. Raker, 1 Neb. 830, 96 N.W. 78 (1901).

Case Notes-Notice to Plaintiff:

1. Appearance by party to resist motion to vacate waives notice. Scarborough v. Myrick, 47 Neb. 794, 66 N.W. 867 (1896).

2. Proceeding is continuation of original action; service of notice on plaintiff’s attorney is sufficient. Merriam v. Gordon, 17 Neb. 325, 22 N.W. 563 (1885).

Case Notes-Title to Conveyed Property:

1. Good faith purchaser of land at judicial sale is protected in event judgment reversed under this section. Pauley v. Knouse, 109 Neb. 716, 192 N.W. 195 (1923); Warren v. Dick, 17 Neb. 241, 22 N.W. 462 (1885).

2. Title of purchaser cannot be litigated in action, except perhaps where bad faith is charged. Security Abstract of Title Co. v. Longacre, 56 Neb. 469, 76 N.W. 1073 (1898).

3. A purchaser of land under a judgment subsequently opened is not a purchaser pendente lite. Scudder v. Sargent, 15 Neb. 102, 17 N.W. 369 (1883).

Case Notes-Miscellaneous:

1. One seeking to open up a judgment secured by constructive service must act within five years and must, by a preponderance of the evidence, show that he had no notice prior to judgment and he must file a meritorious answer. Wittwer v. Dorland, 198 Neb. 361, 253 N.W.2d 26 (1977).

2. This section has no relation to filing of claims against estate. Supp v. Allard, 162 Neb. 563, 76 N.W.2d 459 (1956).

3. This section has no reference to a void judgment. Hassett v. Durbin, 132 Neb. 315, 271 N.W. 867 (1937).

4. Action to redeem from tax foreclosure was commenced in time hereunder. Walter v. Union R. E. Co., 107 Neb. 144, 185 N.W. 323 (1921).

5. Section is not applicable to proceedings before drainage district board. Richardson County ex rel. Sheehan v. Drainage Dist., 96 Neb. 169, 147 N.W. 205 (1914).

6. Relief may be granted after five years if proper petitions are presented before expiration of time. Affidavits are amendable. Rine v. Rine, 91 Neb. 248, 135 N.W. 1051 (1912).

7. Section does not relate to void judgments. Herman v. Barth, 85 Neb. 722, 124 N.W. 135 (1910); Hayes County v. Wileman, 82 Neb. 669, 118 N.W. 478 (1908).

8. Owner of land sold under scavenger tax law is not entitled to benefits of this section as matter of right. State v. Several Parcels of Land, 75 Neb. 538, 106 N.W. 663 (1906).

9. Defendant who conveyed his interest by quitclaim deed cannot move to vacate judgment. Browne v. Palmer, 66 Neb. 287, 92 N.W. 315 (1902).

10. Acknowledgment on summons is actual personal service; judgment cannot be opened. Cheney v. Harding, 21 Neb. 65, 31 N.W. 255 (1887).

11. Affidavit by an attorney who has personal knowledge of the want of “actual notice” will be sufficient to open the judgment in absence of counteraffidavits. In re Reed v. Estate of Thompson, 19 Neb. 397, 27 N.W. 391 (1886).

12. Opening judgment upon complying with the requirements of the statute is a matter of right. Brown v. Conger, 10 Neb. 236, 4 N.W. 1009 (1880).

25-527. Procedure when defendants not all served. Where the action is against two or more defendants, and one or more shall have been served, but not all of them, the plaintiff may proceed as follows:

(1) If the action be against defendants jointly indebted upon contract, he may proceed against the defendant served, unless the court otherwise direct;

(2) if the action be against defendants severally liable, he may, without prejudice to his rights against those not served, proceed against the defendants served in the same manner as if they were the only defendants.

Source: R.S. 1867, Code Â§ 84, p. 407; R.S. 1913, Â§ 7648; C.S. 1922, Â§ 8592; C.S. 1929, Â§ 20-527.

Case Notes:

1. Action being for joint and several liability, it could proceed as to the defendants served, under this section. Bourne v. Baer, 107 Neb. 255, 185 N.W. 408 (1921).

2. Section is applicable to proceedings to revive joint judgment. Thornhill v. Hargreaves, 76 Neb. 582, 107 N.W. 847 (1906); Clark v. Commercial Nat. Bank of Columbus, 68 Neb. 764, 94 N.W. 958 (1903).

3. Where principal on injunction bond could not be found in county, it was proper to proceed against surety alone. Gyger v. Courtney, 59 Neb. 555, 81 N.W. 437 (1900).

4. Obligors on joint bond must be joined; may proceed against those served. Perkins County v. Miller, 55 Neb. 141, 75 N.W. 577 (1898); Young v. Joseph Bros. & Davidson, 5 Neb. 559, 99 N.W. 522 (1904).

25-528. Personal service upon appointed resident agent; appointment invalidates constructive service, when. It shall be lawful for any person, association or corporation, owning or claiming any interest in or lien upon any real estate lying within this state, to make and file in the office of the register of deeds of the county in which such real estate is situated an appointment, in writing, of some person, who shall be a resident of the county in which said lands lie, upon whom process may be served in any suit, action or proceeding, concerning or affecting such real estate, to which such owner or claimant shall be made a party. Such appointment shall be acknowledged in the manner provided by law for the acknowledgment of deeds, and shall specifically describe the lands affected by such appointment. From and after the filing of such appointment as herein provided, service of any writ, summons, order or notice, in any suit, action or proceeding, concerning or affecting such real estate, shall be made upon the person so appointed and designated in such manner as may be provided by law for the service of process upon persons found in this state, and shall be held and taken to be a valid and effectual service upon such owner or claimant. A copy of such appointment, or of the record thereof, duly certified by the said register of deeds, shall be deemed sufficient evidence thereof. No service made by publication shall be valid in respect to any such owner or claimant, who shall have filed an appointment under the provisions of this article; PROVIDED, such appointment may be at any time revoked by such owner or claimant, but such revocation shall be in writing duly acknowledged, and shall specifically describe the lands affected by such appointment, and filed and recorded in the office of the register of deeds of the county in which any such real property is situated.

Source: Laws 1877, Â§ 1, p. 17; R.S. 1913, Â§ 7649; C.S. 1922, Â§ 8593; Laws 1927, c. 65, Â§ 1, p. 227; C.S. 1929, Â§ 20-528.

25-529. Personal service upon appointed resident agent; appointment; recording and indexing; fees. The register of deeds of each county shall record such appointment as shall be filed under the provisions of section 25-528 and any revocation thereof in the Miscellaneous Record, shall enter such instruments in the numerical index against the lands described therein, and shall be entitled to demand and receive fees as provided in sections 33-109 and 33-112.

Source: Laws 1877, Â§ 2, p. 18; R.S. 1913, Â§ 7650; C.S. 1922, Â§ 8594; Laws 1927, c. 65, Â§ 2, p. 228; C.S. 1929, Â§ 20-529; R.S. 1943, Â§ 20-529; Laws 1984, LB 679, Â§ 11.

25-530.08. Company, firm, or unincorporated association; appointment of agent; execution on judgment; fees. When a company, firm, or unincorporated association described in section 25-313 has its principal place of business or activity outside of this state and does not have a usual place of doing business or activity within the state or a clerk or general agent within the state, such company, firm, or unincorporated association shall appoint an agent or agents in this state, and before it is authorized to engage in any kind of business or activity in this state, such company, firm, or unincorporated association shall file in the office of the Secretary of State a certified statement setting forth that such company, firm, or unincorporated association is doing business or conducting activities in the State of Nebraska, stating the nature of the business or activity, and designating an agent or agents within the State of Nebraska upon whom process or other legal notice of the commencement of any legal proceeding or in the prosecution thereof may be served. Executions issued on any judgments rendered in such proceedings shall be levied only on property of the company, firm, or unincorporated association. A fee of five dollars shall be paid for filing the certified statement with the Secretary of State. If there is a change of the agent or agents or if there is a change of street address, a statement shall be filed with the Secretary of State stating the name of the new agent or agents or the new street address or both. A filing fee of three dollars shall be paid for the filing of such statement. This section shall not apply to domestic limited partnerships and foreign limited partnerships governed by the Nebraska Uniform Limited Partnership Act.

Source: R.S. 1867, Code Â§ 25, p. 397; R.S. 1913, Â§ 7595; C.S. 1922, Â§ 8538; C.S. 1929, Â§ 20-314; R.S. 1943, Â§ 25-314; Laws 1947, c. 82, Â§ 2, p. 257; Laws 1959, c. 96, Â§ 1, p. 414; Laws 1961, c. 109, Â§ 1, p. 346; Laws 1974, LB 951, Â§ 1; Laws 1983, LB 447, Â§ 16; R.S.Supp.,1984, Â§ 25-314; Laws 1989, LB 482, Â§ 5.

Cross Reference: Nebraska Uniform Limited Partnership Act, see section 67-296.

Case Notes-Right to Serve:

1. An unincorporated association to represent employees in collective bargaining must comply with this section before it may bring an action in court. Nebraska Council of Educational Leaders v. Nebraska Dept. of Education, 189 Neb. 811, 205 N.W.2d 537 (1973).

2. Prior to 1947 amendment, where unincorporated association was not formed to carry on some trade or business, or to hold some species of property in this state, service of process could not be properly made on such association in this state. Hurley v. Brotherhood of Railroad Trainmen, 147 Neb. 781, 25 N.W.2d 29 (1946).

3. Nonresident firm of attorneys, not having office in this state, was not subject to service of process under this section. State ex rel. Johnson v. Tautges, Rerat & Welch, 146 Neb. 439, 20 N.W.2d 232 (1945).

4. Where the members of a partnership reside in another state and are not within this state, service of summons upon the firm cannot be made in a county where it has no usual place of business. Stelling v. Peddicord, 78 Neb. 779, 111 N.W. 793 (1907).

5. To authorize summons to another county, nonresident must be bona fide defendant. Stull Bros. v. Powell, 70 Neb. 152, 97 N.W. 249 (1903).

6. Section is cumulative, and does not prevent service on individual members of partnership. Herron v. Cole Bros., 25 Neb. 692, 41 N.W. 765 (1889).

7. In suit to enjoin violation of federal statute by members of partnership, federal district court for Missouri, wherein members resided, had jurisdiction although place of partnership’s business was in Nebraska. Sutherland v. United States, 74 F.2d 89 (8th Cir. 1934).

Case Notes-Procedure:

1. Defendant having given other reasons for refusing to recognize plaintiff as negotiating agent could not change ground after litigation started and base refusal on tardy filing of certificate designating agent. Orleans Education Assn. v. School Dist. of Orleans, 193 Neb. 675, 229 N.W.2d 172 (1975).

2. In suit against a partnership, filing of a petition by individual partners to remove suit to federal court is not a general appearance but a special appearance only. Security State Bank of Norfolk v. Jackson Bros., Boesel & Co., 130 Neb. 562, 265 N.W. 747 (1936).

3. Service in an action against a partnership may be made by copy left at the usual place of business. Wittstruck v. Temple, 58 Neb. 16, 78 N.W. 456 (1899).

4. Where action is brought against firm in the individual names of its members and one member is absent from state, service upon the others is sufficient. Winters v. Means, 25 Neb. 241, 41 N.W. 157 (1888).

5. Service on partnership at usual place of business is sufficient. Rosenbaum & Co. v. Hayden, 22 Neb. 744, 36 N.W. 147 (1888).

Case Note-Miscellaneous:

Service of process in an action against individual members of a partnership is not governed by this section. Hanna v. Emerson, 45 Neb. 708, 64 N.W. 229 (1895).

25-535. Person, defined. As used in sections 25-535 to 25-541, person includes an individual, executor, administrator, personal representative, corporation, partnership, limited liability company, association, or other legal or commercial entity, whether or not a citizen or domiciliary of this state and whether or not organized under the laws of this state.

Source: Laws 1967, c. 143, Â§ 1, p. 439; Laws 1993, LB 121, Â§ 167.

Case Note:

Under this and succeeding sections where copies of complaint, summons, and interrogatories were sent by registered mail to limited partnership defendant at its foreign office, Nebraska long-arm statute was satisfied. Blum v. Kawaguchi, Ltd., 331 F. Supp. 216 (D. Neb. 1971).

25-536. Jurisdiction over a person. A court may exercise personal jurisdiction over a person:

(1) Who acts directly or by an agent, as to a cause of action arising from the person:

(a) Transacting any business in this state;

(b) Contracting to supply services or things in this state;

(d) Causing tortious injury in this state by an act or omission outside this state if the person regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state;

(e) Having an interest in, using, or possessing real property in this state; or

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

(2) Who has any other contact with or maintains any other relation to this state to afford a basis for the exercise of personal jurisdiction consistent with the Constitution of the United States.

Source: Laws 1967, c. 143, Â§ 2, p. 439; Laws 1983, LB 447, Â§ 35. Cross References: Resident agent appointment in real estate matters, see section 25-528. Service on foreign corporations, registered agent, see sections 21-1971 and 21-20,177. Service on foreign insurance corporations, see sections 44-135, 44-2009 to 44-2013, and 44-5507. Workers’ compensation cases, additional method of jurisdiction exists, see sections 48-146, 48-175, 48-175.01, and 48-190.

Case Notes-Subject to Jurisdiction:

1. Nonresident defendant’s conduct and connection with the State of Nebraska was such that it reasonably should have anticipated being haled into court over plaintiff’s cause of action for the return of its loan application fee. 24th and Dodge Ltd. v. Commercial Nat. Bank, 243 Neb. 98, 497 N.W.2d 386 (1993).

2. In order to subject a defendant to a judgment in personam, if the defendant is not within the territory of the forum, due process requires that such defendant have certain minimum contacts with the forum state so that maintenance of the suit does not offend traditional notions of fair play and substantial justice. McGowan Grain v. Sanburg, 225 Neb. 129, 403 N.W.2d 340 (1987).

3. The establishment of a marital relationship in this state from which a nonresident has left is sufficient minimum contact with this state to permit a court of this state to exercise in personam jurisdiction over the nonresident in an action to dissolve that marriage. York v. York, 219 Neb. 883, 367 N.W.2d 133 (1985).

4. Company having an interest in, using or possessing real property in this state at a time when it was transacting business in this state was subject to jurisdiction of court in this state and its special appearance was properly overruled. Grand Island Hotel Corp. v. Second Island Development Co., 191 Neb. 98, 214 N.W.2d 253 (1974).

5. Nonresident manufacturer comes under long-arm statute when it places its products in the stream of commerce expecting delivery in Nebraska. Stoehr v. American Honda Motor Co., Inc., 429 F. Supp. 763 (D. Neb. 1977).

6. By statute, defendant is under state jurisdiction when defendant contracts for sale of motorcycles in Nebraska. Hetrick v. American Honda Motor Co., Inc., 429 F. Supp. 116 (D. Neb. 1976).

7. Where after defendant Illinois corporation entered into distributorship agreement for Nebraska, area contacts were numerous and continuous. Nebraska corporations antitrust cause of action arose out of interrelated acts allegedly indicating unfair competition; sufficient contacts existed to permit in personam jurisdiction. Morton Buildings of Nebraska, Inc. v. Morton Buildings, Inc., 333 F. Supp. 187 (D. Neb. 1971).

8. Where the delivery, installation, operation, and alleged injury resulting from defective machine occurred in Nebraska, the manufacturer who had shipped same indirectly was subject to Nebraska jurisdiction. Blum v. Kawaguchi, Ltd., 331 F. Supp. 216 (D. Neb. 1971).

Case Notes-Not Subject to Jurisdiction:

1. Neither an act of sexual intercourse between consenting adults nor the failure of a putative father to support his child is an act “causing tortious injury” under the terms of the Nebraska long-arm statute. State ex rel Larimore v. Snyder, 206 Neb. 64, 291 N.W.2d 241 (1980).

2. For tortious act in other state, jurisdiction for damage action in Nebraska not supported by telephone calls, travel to Nebraska, and unspecified acts which induced victim to travel to other state. Von Seggern v. Saikin, 187 Neb. 315, 189 N.W.2d 512 (1971).

3. Where defendants maintained no offices, salespersons, or agents in Nebraska; where contracts neither executed nor performed in Nebraska; where goods neither came from or to Nebraska; the Nebraska contracts insufficient to attach jurisdiction under long-arm statutes. Aaron Ferer & Sons Co. v. American Compressed Steel Co., 564 F.2d 1206 (8th Cir. 1977) affirming, Aaron Ferer & Sons Co. v. Atlas Scrap Iron & Metal Co., 558 F.2d 450 (8th Cir. 1977).

4. National Trailer Leasing Company under facts of case not subject to jurisdiction under this section which requires actual presence in state plus additional requirement of regular or persistent course of conduct. Peterson v. U-Haul Co., 409 F.2d 1174 (8th Cir. 1969).

5. Where the activities of a physician and hospital in administering chemotherapy treatment were localized and confined to the State of Iowa, there were insufficient contacts with Nebraska for purposes of application of the Nebraska long-arm statute in a wrongful death action against the physician and hospital, notwithstanding the foreseeability of alleged effects occurring in Nebraska where the patient resided. Glover v. Wagner, 462 F. Supp. 308 (D. Neb. 1978).

6. Where purchase contracts were executed outside Nebraska by nonresident sellers for shipment of goods to other states, and defendants did not transact nor solicit business in Nebraska, buyers’ Nebraska residence did not give federal court in Nebraska personal jurisdiction in this suit under Bankruptcy Act. Aaron Ferer & Sons Co. v. Atlas Scrap Iron & Metal Co., 418 F. Supp. 674 (D. Neb. 1976).

Case Notes-Miscellaneous:

1. While language of this section does not cover divorce in specific words, it indicates the legislative intention to apply the minimum contacts rule where it does not offend traditional concepts of fair play and substantial justice. Stucky v. Stucky, 186 Neb. 636, 185 N.W.2d 656 (1971).

2. Concept of due process in Nebraska’s long-arm statutes is at least as broad as the constitutional standard of due process. Pioneer Ins. Co. v. Gelt, 558 F.2d 1303 (8th Cir. 1977).

3. Question of whether in personam jurisdiction is acquired under Nebraska long-arm statute depends primarily on the quantity, nature, and quality of the parties’ contacts with the forum state. Aaron Ferer & Sons Co. v. Atlas Scrap Iron & Metal Co., 558 F.2d 450 (8th Cir. 1977).

4. It is a nonresident defendant’s contacts with the forum state that are of interest in determining if in personam jurisdiction exists, not its contacts with the resident plaintiff. Gendler v. General Growth Properties, 461 F. Supp. 434 (D. Neb. 1978).

5. Nebraska long-arm statute is limited only by the constitutional constraints imposed by the minimum contacts rule. Vergara v. Aeroflot Soviet Airlines, 390 F. Supp. 1266 (D. Neb. 1975).

6. Under facts in this case, defendant was amenable to service, and when copy of complaint and a summons were served by registered mail with signed receipt required, requirements of due process were met. General Leisure Products Corp. v. Gleason Corp., 331 F. Supp. 278 (D. Neb. 1971).

25-537. Service outside state. When the exercise of personal jurisdiction is authorized by sections 25-535 to 25-541, service may be made outside this state.

Source: Laws 1967, c. 143, Â§ 3, p. 439.

Case Notes:

1. Unless defendant transacts some business in Nebraska, jurisdiction over him may not be obtained hereunder by service outside the state. Conner v. Southern, 186 Neb. 164, 181 N.W.2d 446 (1970).

2. Concept of due process in Nebraska’s long-arm statutes is at least as broad as the constitutional standard of due process. Pioneer Ins. Co. v. Gelt, 558 F.2d 1303 (8th Cir. 1977).

25-539. Jurisdiction authorized. A court of this state may exercise jurisdiction on any other basis authorized by law.

Source: Laws 1967, c. 143, Â§ 5, p. 440.

Case Note:

In personam jurisdiction may be acquired over a nonresident defendant in a divorce action by extra-territorial personal service of process made in accordance with a statute of this state if there exists sufficient contacts between the defendant and this state relevant to the cause of action to satisfy traditional notions of fair play and substantive justice. In this case, defendant’s last marital domicile was in Nebraska and no showing was made that it was later superseded by a new domicile. Stucky v. Stucky, 186 Neb. 636, 185 N.W.2d 656 (1971).

25-540. Service outside state; manner.

(1) When the law of this state authorizes service outside this state, the service, when reasonably calculated to give actual notice, may be made:

(a) In the manner prescribed for service within this state;

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

(d) As directed by the court.

(2) Proof of service outside this state may be made by affidavit of the individual who made the service or in the manner prescribed by the law of this state, the order pursuant to which the service is made, 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.

Source: Laws 1967, c. 143, Â§ 6, p. 440; Laws 1983, LB 447, Â§ 36.

Cross Reference: Workers’ compensation cases, additional nonresident jurisdiction and method of proof of service exists, see section 48-175.01

25-505.01. Service of summons; methods.(1) Unless otherwise limited by statute or by the court, a plaintiff may elect to have service made by any of the following methods:(a) Personal service which shall be made by leaving the summons with the individual to be served;(b) Residence service which shall be made by leaving the summons at the usual place of residence of the individual to be served, with some person of suitable age and discretion residing therein; or(c) Certified mail service which shall be made by(i) within ten days of issuance, sending the summons to the defendant by certified mail with a return receipt requested showing to whom and where delivered and the date of delivery, and(ii) filing with the court proof of service with the signed receipt attached.(2) Failure to make service by the method elected by the plaintiff does not affect the validity of the service.Source: Laws 1983, LB 447, Â§ 22; Laws 1984, LB 845, Â§ 21.Cross Reference: Workers’ compensation cases, manner of service, see sections 48-174, 48-175, 48-175.01, and 48-190.Case Note:Plaintiff may elect to have service made by any of the methods specified in the statute. West Town Homeowners Assn. v. Schneider, 221 Neb. 674, 380 N.W.2d 265 (1986).25-506.01. Process; by whom served.(1) Unless the plaintiff has elected service by certified mail, the summons shall be served by the sheriff of the county where service is made, by a person authorized by section 25-507 or otherwise authorized by law, or by a person, corporation, partnership, or limited liability company not a party to the action specially appointed by the court for that purpose.(2) Service by certified mail shall be made by plaintiff or plaintiff’s attorney.Source: Laws 1983, LB 447, Â§ 23; Laws 1994, LB 1224, Â§ 36; Laws 1999, LB 319, Â§ 1. Effective date August 28, 1999.Cross Reference: Workers’ compensation cases, manner of service, see sections 48-174, 48-175, 48-175.01, and 48-190.25-507. Process server; requirements; bond; cost.(1) In any county which does not have a person contracted as a constable pursuant to section 25-2229, any person twenty-one years of age or older or a corporation, partnership, or limited liability company that satisfies the requirements of subsection (2) of this section shall have the same power as a sheriff to execute any service of process or order.(2) Any person or entity may exercise the powers provided in subsection (1) of this section if such person or entity(a) is not a party to the action,(b) is not related to a party to the action,(c) does not have an interest in the action,(d) is not a public official employed by the county where service is made whose duties include service of process, and(e) furnishes a good and sufficient corporate surety bond in the sum of fifteen thousand dollars, such bond being conditioned upon such person or entity faithfully and truly performing the duties of process server.(3) Evidence of the corporate surety bond shall be provided to the clerk of each court in which such person or entity executes service of process or orders. Such person or entity is not required to furnish more than one bond to execute service of process or orders in any state court in the State of Nebraska. When service of process is made by such person or entity authorized by this section, proof of such service of process shall be shown by an affidavit.(4) The cost of service of process is taxable as a court cost, and when service of process is made by such person or entity other than a sheriff the cost taxable as a court cost is the lesser of the actual amount incurred for service of process or orders or the statutory fee set for sheriffs in section 33-117.Source: Laws 1999, LB 319, Â§ 2. Effective date August 28, 1999.25-507.01. Summons; proof of service; return date.(1) Within twenty days after the date of issue, the person serving the summons, other than by certified mail, shall make proof of service to the court stating the time, place, including the address if applicable, name of the person with whom the summons was left, and method of service, or return the unserved summons to the court with a statement of the reason for the failure to serve.(2) When service is by certified mail, the plaintiff or plaintiff’s attorney shall file proof of service within ten days after return of the signed receipt.(3) Failure to make proof of service or delay in doing so does not affect the validity of the service.Source: Laws 1983, LB 447, Â§ 24.Cross Reference: Workers’ compensation cases, manner and time of service, see sections 48-174, 48-175, 48-175.01, and 48-190.25-508.01. Service on individual.(1) An individual party, other than a person under the age of fourteen years, may be served by personal, residence, or certified mail service.(2) A party under the age of fourteen years may be served by personal, residence, or certified mail service upon an adult person with whom the minor resides and who is the minor’s parent, guardian, or person having care of the minor. If none of these can be found, a party under the age of fourteen years may be served by personal service.(3) If the person to be served is an incapacitated person for whom a conservator or guardian has been appointed or is confined in any institution, notice of the service shall be given to the conservator, guardian, or superintendent or similar official of the institution. Failure to give such notice does not affect the validity of the service on the incapacitated person.Source: Laws 1983, LB 447, Â§ 25.Case Note:Although subsection (3) of this section requires that where summons is served on an incapacitated person, notice of such service shall be given to the guardian, it also provides that failure to give such notice will not affect the validity of the service. In re Interest of A.M.K., 227 Neb. 888, 420 N.W.2d 718 (1988).25-509.01. Service on corporation. A corporation may be served by personal, residence, or certified mail service upon any officer, director, managing agent, or registered agent, or by leaving the process at the corporation’s registered office with a person employed therein, or by certified mail service to the corporation’s registered office. 25-509.01. Service on corporation. A corporation may be served by personal, residence, or certified mail service upon any officer, director, managing agent, or registered agent, or by leaving the process at the corporation’s registered office with a person employed therein, or by certified mail service to the corporation’s registered office.Source: Laws 1983, LB 447, Â§ 26.Cross References: For process and service on foreign insurance corporation, see sections 44-135, 44-2009 to 44-2013, and 44-5507. Registered office of corporation, see sections 21-1909, 21-1971, 21-2034, and 21-20,177.25-510.02. Service on state or political subdivision.(1) The State of Nebraska, any state agency as defined in section 81-8,210, and any employee of the state as defined in section 81-8,210 sued in an official capacity may be served by leaving the summons at the office of the Attorney General with the Attorney General, deputy attorney general, or someone designated in writing by the Attorney General, or by certified mail service addressed to the office of the Attorney General.(2) Any county, city, or village of this state may be served by personal, residence, or certified mail service upon the chief executive officer, or clerk.(3) Any political subdivision of this state, as defined in subdivision (1) of section 13-903, other than a county, city, or village, may be served by personal, residence, or certified mail service upon the chief executive officer, clerk, secretary, or other official whose duty it is to maintain the official records, or any member of the governing board or body, or by certified mail service to the principal office of the political subdivision.Source: Laws 1983, LB 447, Â§ 27.Case Note:Pursuant to this section, the Attorney General must be served on behalf of the committee and that service may be accomplished by one of the methods for which provision is made in subsection (1). Ray v. Nebraska Crime Victim’s Reparations Comm., 1 Neb. App. 130, 487 N.W.2d 590 (1992).25-511.02. Service on dissolved corporation. A dissolved corporation may be served by personal, residence, or certified mail service upon any appointed receiver. If there is no receiver, a dissolved corporation may be served by personal, residence, or certified mail service upon any person who at the time of dissolution was an officer, director, managing agent, or registered agent, or upon any officer or director designated in the last annual report filed with the Secretary of State.Source: Laws 1983, LB 447, Â§ 28.25-512.01. Service on partnership. A partnership or limited partnership may be served by personal, residence, or certified mail service upon any partner except a limited partner, or by certified mail service at its usual place of business, or the process may be left at its usual place of business with an employee of the partnership or limited partnership.Source: Laws 1983, LB 447, Â§ 29.Cross Reference: Registration and agent for service of process of foreign limited partnerships, see section 67-281.25-513.01. Service on unincorporated association. An unincorporated association may be served by personal, residence, or certified mail service upon an officer or managing agent, or by certified mail service to the association at its usual place of business, or by leaving the process at its usual place of business with an employee of the unincorporated association.Source: Laws 1983, LB 447, Â§ 30.25-514.01. Service on agent. Any party may be served by personal, residence, or certified mail service upon an agent authorized by appointment or by law to receive service of process.Source: Laws 1983, LB 447, Â§ 31.25-516.01. Voluntary appearance; special appearance.(1) The voluntary appearance of the party is equivalent to service.(2) Prior to filing any other pleading or motion, a special appearance may be made for the purpose of objecting to the jurisdiction of the court over the person of the defendant. The defendant’s assertion of a claim for affirmative relief by way of counterclaim, cross-claim, or third-party claim waives any objection that the court erred in overruling the special appearance. The defendant’s participation in proceedings on any issue other than jurisdiction over the person waives any objection that the court erred in overruling the special appearance except the objection that the defendant is not amenable to process issued by a court of this state.Source: Laws 1983, LB 447, Â§ 32.25-517.02. Substitute and constructive service. Upon motion and showing by affidavit that service cannot be made with reasonable diligence by any other method provided by statute, the court may permit service to be made (1) by leaving the process at the defendant’s usual place of residence and mailing a copy by first-class mail to the defendant’s last-known address, (2) by publication, or (3) by any manner reasonably calculated under the circumstances to provide the party with actual notice of the proceedings and an opportunity to be heard.Source: Laws 1983, LB 447, Â§ 33.Cross References: Actions against unknown defendants, see section 25-321. Actions to quiet title, see section 25-21,118.25-518.01. Service by publication. Service may be made by publication (1) when such service is elsewhere provided for by statute or (2) when ordered by the court.Source: Laws 1983, LB 447, Â§ 34.25-519. Service by publication; how made; contents. The publication shall be made once in each week for three successive weeks in some newspaper printed in the county where the petition is filed if there is any printed in such county and, if there is not, in some newspaper printed in this state of general circulation in that county. It must contain a summary statement of the object and prayer of the petition, mention the court wherein it is filed, and notify the person or persons thus to be served when they are required to answer.Source: R.S. 1867, Code Â§ 79, p. 405; R.S. 1913, Â§ 7642; C.S. 1922, Â§ 8585; C.S. 1929, Â§ 20-519; R.S. 1943, Â§ 25-519; Laws 1971, LB 47, Â§ 1; Laws 1996, LB 299, Â§ 19. Effective date April 17, 1996.Cross Reference: For publication of legal notices, see sections 25-2227, 25-2228, 33-141, and 33-142.Case Notes – How Made:1. Publication seven times in semi-weekly newspaper was not sufficient in foreclosure of tax lien. Davis v. American Inv. & Trust Co., 94 Neb. 427, 143 N.W. 464 (1913).2. Publications need not be on same day of week; “week” defined. Burr v. Finch, 91 Neb. 417, 136 N.W. 72 (1912).3. Notice must be published in all regular issues during week. Smith v. Potter, 90 Neb. 298, 133 N.W. 437 (1911); Claypool v. Robb, 90 Neb. 193, 133 N.W. 178 (1911).4. Notice takes place of summons; publication requiring defendant to answer on second Monday is irregular and may be set aside on motion. Calkins v. Miller, 55 Neb. 601, 75 N.W. 1108 (1898).5. Four weekly publications are sufficient. Taylor v. Coots, 32 Neb. 30, 48 N.W. 964 (1891); Fouts v. Mann, 15 Neb. 172, 18 N.W. 64 (1883).6. Notice requiring defendant to answer in forenoon is valid; but has whole day to answer. Armstrong v. Middlestadt, 22 Neb. 711, 36 N.W. 151 (1888).7. Notice once each week for four successive weeks is completed upon distribution of last publication. Davis v. Huston, 15 Neb. 28, 16 N.W. 820 (1883).Case Notes – Contents:1. Publication notice must contain a summary statement of the object and prayer of the petition, mention the court wherein it is filed, and notify the person or persons to be served when they are required to answer. Coffin v. Maitland, 146 Neb. 477, 20 N.W.2d 310 (1945).2. Plaintiff’s cause of action is not required to be set out in notice. Smith v. Potter, 92 Neb. 39, 137 N.W. 854 (1912).3. Notice stating that action was for “partition” of lands was sufficient without reciting “partition or sale.” McCormick v. Paddock, 20 Neb. 486, 30 N.W. 602 (1886).4. Notice in attachment containing general description of property attached is not void. Grebe v. Jones, 15 Neb. 312, 18 N.W. 81 (1883).Case Note – Miscellaneous:1. Notice to nonresident herein complied with this section. Armstrong v. Bates, 94 Neb. 462, 143 N.W. 477 (1913).25-520. Service by publication; when complete; how proved; affidavit of publication. Service by publication shall be deemed complete when it shall have been made in the manner and for the time prescribed in section 25-519; and such service shall be proved by the affidavit of the printer or his foreman or principal clerk, or other person knowing the same.Source: R.S. 1867, Code Â§ 80, p. 406; R.S. 1913, Â§ 7643; C.S. 1922, Â§ 8586; C.S. 1929, Â§ 20-520.Case Notes:1. In tax foreclosure case, section is strictly construed. Armstrong v. Griffith, 94 Neb. 515, 143 N.W. 461 (1913).2. Service is complete upon distribution of paper containing its fourth successive weekly insertion. Claypool v. Robb, 90 Neb. 193, 133 N.W. 178 (1911).3. Any one having actual knowledge of facts may make affidavit. Taylor v. Coots, 32 Neb. 30, 48 N.W. 964 (1891).4. Court may permit amendment of affidavit to conform to facts. Britton v. Larson, 23 Neb. 806, 37 N.W. 681 (1888).25-520.01. Service by publication; mailing of published notice; requirements; waiver; when mailing not required. In any action or proceeding of any kind or nature, as defined in section 25-520.02, where a notice by publication is given as authorized by law, a party instituting or maintaining the action or proceeding with respect to notice or his attorney shall within five days after the first publication of notice send by United States mail a copy of such published notice to each and every party appearing to have a direct legal interest in such action or proceeding whose name and post office address are known to him. Proof by affidavit of the mailing of such notice shall be made by the party or his attorney and shall be filed with the officer with whom filings are required to be made in such action or proceeding within ten days after mailing of such notice. Such affidavit of mailing of notice shall further be required to state that such party and his attorney, after diligent investigation and inquiry, were unable to ascertain and do not know the post office address of any other party appearing to have a direct legal interest in such action or proceeding other than those to whom notice has been mailed in writing. It shall not be necessary to serve the notice prescribed by this section upon any competent person, fiduciary, partnership, or corporation, who has waived notice in writing, entered a voluntary appearance, or has been personally served with summons or notice in such proceeding.Source: Laws 1957, c. 80, Â§ 1, p. 325; Laws 1959, c. 97, Â§ 1, p. 416.Case Notes:1. County court which obtained jurisdiction of res of estate upon filing of petition retains jurisdiction until service of notice is perfected or until matter is abandoned. Fischer v. Lingle, 195 Neb. 108, 237 N.W.2d 110 (1975).2. A mortgagor in a foreclosure proceeding is not entitled to personal service of the published notice of sale. Hollstein v. Adams, 187 Neb. 781, 194 N.W.2d 216 (1972).3. Copy of notice, mailed hereunder, that a will and codicil are being offered for probate is sufficient to put party upon inquiry as to documents offered. Flint v. Panter, 187 Neb. 615, 193 N.W.2d 279 (1970).4. This section does not apply to notice of dissolution of corporation. Christensen v. Boss, 179 Neb. 429, 138 N.W.2d 716 (1965).5. First cousins of testator were not prima facie heirs-at-law, and hence were not required to be notified by mail of pending probate of will. Estate of Colman v. Redford, 179 Neb. 270, 137 N.W.2d 822 (1965).6. Notice by mail is not required to be given to the holder of a claim for unliquidated damages. Farmers Co-op. Mercantile Co. v. Sidner, 175 Neb. 94, 120 N.W.2d 537 (1963).7. Notice by mail was not required to be given to property owner of intention by municipality to pass resolution of necessity for constructing sewer system. Jones v. Village of Farnam, 174 Neb. 704, 119 N.W.2d 157 (1963).8. Notice was not required to be sent to all owners of land within school district of proceedings to change boundaries thereof. Lindgren v. School Dist. of Bridgeport, 170 Neb. 279, 102 N.W.2d 599 (1960).25-520.02. Action or proceeding, defined. The term action or proceeding means all actions and proceedings in any court and any action or proceeding before the governing bodies of municipal corporations, public corporations, and political subdivisions for the equalization of special assessments or assessing the cost of any public improvement.Source: Laws 1957, c. 80, Â§ 2, p. 326.Case Notes:1. The act, of which this section is a part, is not amendatory, but is new and independent legislation. Farmers Co-op. Mercantile Co. v. Sidner, 175 Neb. 94, 120 N.W.2d 537 (1963).2. Resolution of necessity for constructing a sewer system was not within purview of this section. Jones v. Village of Farnam, 174 Neb. 704, 119 N.W.2d 157 (1963).3. Statute does not contemplate personal notice must be given to a class on matters of general public concern. Lindgren v. School Dist. of Bridgeport, 170 Neb. 279, 102 N.W.2d 599 (1960).25-520.03. Sections, how construed. Sections 25-520.01 to 25-520.03 are intended by the Legislature to be cumulative and supplemental to existing legislation. They are deemed to be a matter of general statewide concern. Such sections apply to all parties authorized by law to give notice by publication, including the State of Nebraska, its governmental subdivisions, and all public and municipal corporations.Source: Laws 1957, c. 80, Â§ 3, p. 326.Case Note:1. The act, of which this section is a part, is not amendatory, but is new and independent legislation. Farmers Co-op. Mercantile Co. v. Sidner, 175 Neb. 94, 120 N.W.2d 537 (1963).25-522. Service by publication; designation of newspaper. It shall be the lawful right of any plaintiff or petitioner in any suit, action or proceeding, pending or prosecuted in any of the courts of this state, in which it is necessary to publish in a newspaper any notice or copy of an order, growing out of, or connected with, such action or proceeding, either by himself or his attorney of record, to designate in what newspaper such notice or copy of order shall be published; and it shall be the duty of the judges of the district court, county judges, or any other officer charged with the duty of ordering, directing or superintending the publication of any of such notices, or copies of orders, to strictly comply with such designations when made in accordance with the provisions of this section.Source: Laws 1909, c. 94, Â§ 1, p. 399; R.S. 1913, Â§ 7645; C.S. 1922, Â§ 8588; C.S. 1929, Â§ 20-522.25-523. Legal newspaper, defined; prior publications legalized. No newspaper shall be considered a legal newspaper for the publication of legal and other official notices unless the same shall have a bona fide circulation of at least three hundred paid subscriptions weekly, and shall have been published within the county for fifty-two successive weeks prior to the publication of such notice, and be printed, either in whole or in part, in an office maintained at the place of publication; PROVIDED, that nothing in this section shall invalidate the publication in a newspaper which has suspended publication or been printed outside of the county, on account of fire, flood or other unavoidable accident, for not to exceed ten weeks, in the year last preceding the first publication of a legal notice, advertising or publication; PROVIDED FURTHER, that all publications made prior to May 22, 1941, in a newspaper which has, on account of flood, fire or other unavoidable accident, suspended publication or been printed in an office outside of the county, are hereby legalized; PROVIDED FURTHER, that all newspapers, otherwise complying herewith, which have, on account of flood, fire or other unavoidable accident, suspended publication or been printed in an office outside of the county, for not to exceed ten weeks in any year, are hereby legalized; AND PROVIDED FURTHER, that the publication of legal or other official notices in the English language in foreign language newspapers published within the county for fifty-two successive weeks prior to the publication of such a notice, and printed either in whole or in part in an office maintained at the place of publication, shall also be legal.Source: Laws 1915, c. 221, Â§ 1, p. 490; Laws 1919, c. 133, Â§ 1, p. 309; C.S. 1922, Â§ 8589; C.S. 1929, Â§ 20-523; Laws 1935, c. 40, Â§ 1, p. 157; Laws 1941, c. 31, Â§ 1, p. 139; C.S.Supp.,1941, Â§ 20-523; Laws 1943, c. 44, Â§ 1(1), p. 189; R.S. 1943, Â§ 25-523; Laws 1972, LB 661, Â§ 17.Case Notes:1. Mechanical act of printing legal newspaper may be performed outside county of place of publication. Wymore Arbor State, Inc. v. Korinek, 182 Neb. 557, 156 N.W.2d 24 (1968).2. Particular requirements of this section need not be recited in printer’s proof of publication. Seymour v. Lawson, 111 Neb. 770, 197 N.W. 623 (1926).25-525. Judgment on constructive service; how opened; procedure. A party against whom a judgment or order has been rendered without other service than by publication in a newspaper, may, at any time within five years after the date of judgment or order, have the same opened, and be let in to defend; before the judgment or order shall be opened, the applicant shall give notice to the adverse party of his intention to make such application, and shall file a full answer to the petition, pay all costs, if the court requires them to be paid, and make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense; but the title to any property, the subject of the judgment or order sought to be opened, which by it, or in consequence of it, shall have passed to a purchaser in good faith, shall not be affected by any proceedings under this section, nor shall they affect the title of any property sold before judgment under an attachment. The adverse party, on the hearing of an application to open a judgment or order, as provided by this section, shall be allowed to present counter-affidavits, to show that during the pendency of the action the applicant had notice thereof in time to appear in court and make his defense.Source: R.S. 1867, Code Â§ 82, p. 406; R.S. 1913, Â§ 7646; C.S. 1922, Â§ 8590; C.S. 1929, Â§ 20-525.Case Notes-Sufficiency of Application:1. Before party can have judgment opened, it must appear that he had no actual notice of the pendency of the action in time to make defense. McNally v. McNally, 152 Neb. 845, 43 N.W.2d 170 (1950).2. Verified petition filed by parties seeking to open up judgment under this section was equivalent to affidavit and answer required thereunder. Nelson v. Nelson, 113 Neb. 453, 203 N.W. 640 (1925).3. Application was sufficient to authorize vacation of judgment. Eno v. Lampshire, 108 Neb. 265, 187 N.W. 782 (1922).4. Ordinarily only party can make affidavit, but may be made by attorney where party is nonresident. Cass v. Nitsch, 81 Neb. 228, 115 N.W. 753 (1908).5. On application, defendant cannot contest sufficiency of original petition; “full answer” means meritorious answer. Oakes v. Ziemer, 62 Neb. 603, 87 N.W. 350 (1901).6. To permit a defendant to open up decree, full answer to the merits must be presented. Oakes v. Ziemer, 61 Neb. 6, 84 N.W. 409 (1900).7. Defendant must show he did not have actual notice of suit in time to make defense; adverse party may present counteraffidavits. Stover v. Hough, 47 Neb. 789, 66 N.W. 825 (1896).8. Party seeking to have judgment opened up must allege and prove bona fides. McGregor v. Eastern B. & L. Assn., 5 Neb. 563, 99 N.W. 509 (1904).9. Motion to vacate judgment after term must tender valid defense which court will adjudge prima facie valid. Waters v. Raker, 1 Neb. 830, 96 N.W. 78 (1901).Case Notes-Notice to Plaintiff:1. Appearance by party to resist motion to vacate waives notice. Scarborough v. Myrick, 47 Neb. 794, 66 N.W. 867 (1896).2. Proceeding is continuation of original action; service of notice on plaintiff’s attorney is sufficient. Merriam v. Gordon, 17 Neb. 325, 22 N.W. 563 (1885).Case Notes-Title to Conveyed Property:1. Good faith purchaser of land at judicial sale is protected in event judgment reversed under this section. Pauley v. Knouse, 109 Neb. 716, 192 N.W. 195 (1923); Warren v. Dick, 17 Neb. 241, 22 N.W. 462 (1885).2. Title of purchaser cannot be litigated in action, except perhaps where bad faith is charged. Security Abstract of Title Co. v. Longacre, 56 Neb. 469, 76 N.W. 1073 (1898).3. A purchaser of land under a judgment subsequently opened is not a purchaser pendente lite. Scudder v. Sargent, 15 Neb. 102, 17 N.W. 369 (1883).Case Notes-Miscellaneous:1. One seeking to open up a judgment secured by constructive service must act within five years and must, by a preponderance of the evidence, show that he had no notice prior to judgment and he must file a meritorious answer. Wittwer v. Dorland, 198 Neb. 361, 253 N.W.2d 26 (1977).2. This section has no relation to filing of claims against estate. Supp v. Allard, 162 Neb. 563, 76 N.W.2d 459 (1956).3. This section has no reference to a void judgment. Hassett v. Durbin, 132 Neb. 315, 271 N.W. 867 (1937).4. Action to redeem from tax foreclosure was commenced in time hereunder. Walter v. Union R. E. Co., 107 Neb. 144, 185 N.W. 323 (1921).5. Section is not applicable to proceedings before drainage district board. Richardson County ex rel. Sheehan v. Drainage Dist., 96 Neb. 169, 147 N.W. 205 (1914).6. Relief may be granted after five years if proper petitions are presented before expiration of time. Affidavits are amendable. Rine v. Rine, 91 Neb. 248, 135 N.W. 1051 (1912).7. Section does not relate to void judgments. Herman v. Barth, 85 Neb. 722, 124 N.W. 135 (1910); Hayes County v. Wileman, 82 Neb. 669, 118 N.W. 478 (1908).8. Owner of land sold under scavenger tax law is not entitled to benefits of this section as matter of right. State v. Several Parcels of Land, 75 Neb. 538, 106 N.W. 663 (1906).9. Defendant who conveyed his interest by quitclaim deed cannot move to vacate judgment. Browne v. Palmer, 66 Neb. 287, 92 N.W. 315 (1902).10. Acknowledgment on summons is actual personal service; judgment cannot be opened. Cheney v. Harding, 21 Neb. 65, 31 N.W. 255 (1887).11. Affidavit by an attorney who has personal knowledge of the want of “actual notice” will be sufficient to open the judgment in absence of counteraffidavits. In re Reed v. Estate of Thompson, 19 Neb. 397, 27 N.W. 391 (1886).12. Opening judgment upon complying with the requirements of the statute is a matter of right. Brown v. Conger, 10 Neb. 236, 4 N.W. 1009 (1880).25-527. Procedure when defendants not all served. Where the action is against two or more defendants, and one or more shall have been served, but not all of them, the plaintiff may proceed as follows:(1) If the action be against defendants jointly indebted upon contract, he may proceed against the defendant served, unless the court otherwise direct;(2) if the action be against defendants severally liable, he may, without prejudice to his rights against those not served, proceed against the defendants served in the same manner as if they were the only defendants.Source: R.S. 1867, Code Â§ 84, p. 407; R.S. 1913, Â§ 7648; C.S. 1922, Â§ 8592; C.S. 1929, Â§ 20-527.Case Notes:1. Action being for joint and several liability, it could proceed as to the defendants served, under this section. Bourne v. Baer, 107 Neb. 255, 185 N.W. 408 (1921).2. Section is applicable to proceedings to revive joint judgment. Thornhill v. Hargreaves, 76 Neb. 582, 107 N.W. 847 (1906); Clark v. Commercial Nat. Bank of Columbus, 68 Neb. 764, 94 N.W. 958 (1903).3. Where principal on injunction bond could not be found in county, it was proper to proceed against surety alone. Gyger v. Courtney, 59 Neb. 555, 81 N.W. 437 (1900).4. Obligors on joint bond must be joined; may proceed against those served. Perkins County v. Miller, 55 Neb. 141, 75 N.W. 577 (1898); Young v. Joseph Bros. & Davidson, 5 Neb. 559, 99 N.W. 522 (1904).25-528. Personal service upon appointed resident agent; appointment invalidates constructive service, when. It shall be lawful for any person, association or corporation, owning or claiming any interest in or lien upon any real estate lying within this state, to make and file in the office of the register of deeds of the county in which such real estate is situated an appointment, in writing, of some person, who shall be a resident of the county in which said lands lie, upon whom process may be served in any suit, action or proceeding, concerning or affecting such real estate, to which such owner or claimant shall be made a party. Such appointment shall be acknowledged in the manner provided by law for the acknowledgment of deeds, and shall specifically describe the lands affected by such appointment. From and after the filing of such appointment as herein provided, service of any writ, summons, order or notice, in any suit, action or proceeding, concerning or affecting such real estate, shall be made upon the person so appointed and designated in such manner as may be provided by law for the service of process upon persons found in this state, and shall be held and taken to be a valid and effectual service upon such owner or claimant. A copy of such appointment, or of the record thereof, duly certified by the said register of deeds, shall be deemed sufficient evidence thereof. No service made by publication shall be valid in respect to any such owner or claimant, who shall have filed an appointment under the provisions of this article; PROVIDED, such appointment may be at any time revoked by such owner or claimant, but such revocation shall be in writing duly acknowledged, and shall specifically describe the lands affected by such appointment, and filed and recorded in the office of the register of deeds of the county in which any such real property is situated.Source: Laws 1877, Â§ 1, p. 17; R.S. 1913, Â§ 7649; C.S. 1922, Â§ 8593; Laws 1927, c. 65, Â§ 1, p. 227; C.S. 1929, Â§ 20-528.25-529. Personal service upon appointed resident agent; appointment; recording and indexing; fees. The register of deeds of each county shall record such appointment as shall be filed under the provisions of section 25-528 and any revocation thereof in the Miscellaneous Record, shall enter such instruments in the numerical index against the lands described therein, and shall be entitled to demand and receive fees as provided in sections 33-109 and 33-112.Source: Laws 1877, Â§ 2, p. 18; R.S. 1913, Â§ 7650; C.S. 1922, Â§ 8594; Laws 1927, c. 65, Â§ 2, p. 228; C.S. 1929, Â§ 20-529; R.S. 1943, Â§ 20-529; Laws 1984, LB 679, Â§ 11.25-530.08. Company, firm, or unincorporated association; appointment of agent; execution on judgment; fees. When a company, firm, or unincorporated association described in section 25-313 has its principal place of business or activity outside of this state and does not have a usual place of doing business or activity within the state or a clerk or general agent within the state, such company, firm, or unincorporated association shall appoint an agent or agents in this state, and before it is authorized to engage in any kind of business or activity in this state, such company, firm, or unincorporated association shall file in the office of the Secretary of State a certified statement setting forth that such company, firm, or unincorporated association is doing business or conducting activities in the State of Nebraska, stating the nature of the business or activity, and designating an agent or agents within the State of Nebraska upon whom process or other legal notice of the commencement of any legal proceeding or in the prosecution thereof may be served. Executions issued on any judgments rendered in such proceedings shall be levied only on property of the company, firm, or unincorporated association. A fee of five dollars shall be paid for filing the certified statement with the Secretary of State. If there is a change of the agent or agents or if there is a change of street address, a statement shall be filed with the Secretary of State stating the name of the new agent or agents or the new street address or both. A filing fee of three dollars shall be paid for the filing of such statement. This section shall not apply to domestic limited partnerships and foreign limited partnerships governed by the Nebraska Uniform Limited Partnership Act.Source: R.S. 1867, Code Â§ 25, p. 397; R.S. 1913, Â§ 7595; C.S. 1922, Â§ 8538; C.S. 1929, Â§ 20-314; R.S. 1943, Â§ 25-314; Laws 1947, c. 82, Â§ 2, p. 257; Laws 1959, c. 96, Â§ 1, p. 414; Laws 1961, c. 109, Â§ 1, p. 346; Laws 1974, LB 951, Â§ 1; Laws 1983, LB 447, Â§ 16; R.S.Supp.,1984, Â§ 25-314; Laws 1989, LB 482, Â§ 5.Cross Reference: Nebraska Uniform Limited Partnership Act, see section 67-296.
Case Notes-Right to Serve:1. An unincorporated association to represent employees in collective bargaining must comply with this section before it may bring an action in court. Nebraska Council of Educational Leaders v. Nebraska Dept. of Education, 189 Neb. 811, 205 N.W.2d 537 (1973).2. Prior to 1947 amendment, where unincorporated association was not formed to carry on some trade or business, or to hold some species of property in this state, service of process could not be properly made on such association in this state. Hurley v. Brotherhood of Railroad Trainmen, 147 Neb. 781, 25 N.W.2d 29 (1946).3. Nonresident firm of attorneys, not having office in this state, was not subject to service of process under this section. State ex rel. Johnson v. Tautges, Rerat & Welch, 146 Neb. 439, 20 N.W.2d 232 (1945).4. Where the members of a partnership reside in another state and are not within this state, service of summons upon the firm cannot be made in a county where it has no usual place of business. Stelling v. Peddicord, 78 Neb. 779, 111 N.W. 793 (1907).5. To authorize summons to another county, nonresident must be bona fide defendant. Stull Bros. v. Powell, 70 Neb. 152, 97 N.W. 249 (1903).6. Section is cumulative, and does not prevent service on individual members of partnership. Herron v. Cole Bros., 25 Neb. 692, 41 N.W. 765 (1889).7. In suit to enjoin violation of federal statute by members of partnership, federal district court for Missouri, wherein members resided, had jurisdiction although place of partnership’s business was in Nebraska. Sutherland v. United States, 74 F.2d 89 (8th Cir. 1934).Case Notes-Procedure:1. Defendant having given other reasons for refusing to recognize plaintiff as negotiating agent could not change ground after litigation started and base refusal on tardy filing of certificate designating agent. Orleans Education Assn. v. School Dist. of Orleans, 193 Neb. 675, 229 N.W.2d 172 (1975).2. In suit against a partnership, filing of a petition by individual partners to remove suit to federal court is not a general appearance but a special appearance only. Security State Bank of Norfolk v. Jackson Bros., Boesel & Co., 130 Neb. 562, 265 N.W. 747 (1936).3. Service in an action against a partnership may be made by copy left at the usual place of business. Wittstruck v. Temple, 58 Neb. 16, 78 N.W. 456 (1899).4. Where action is brought against firm in the individual names of its members and one member is absent from state, service upon the others is sufficient. Winters v. Means, 25 Neb. 241, 41 N.W. 157 (1888).5. Service on partnership at usual place of business is sufficient. Rosenbaum & Co. v. Hayden, 22 Neb. 744, 36 N.W. 147 (1888).Case Note-Miscellaneous:Service of process in an action against individual members of a partnership is not governed by this section. Hanna v. Emerson, 45 Neb. 708, 64 N.W. 229 (1895).25-535. Person, defined. As used in sections 25-535 to 25-541, person includes an individual, executor, administrator, personal representative, corporation, partnership, limited liability company, association, or other legal or commercial entity, whether or not a citizen or domiciliary of this state and whether or not organized under the laws of this state.Source: Laws 1967, c. 143, Â§ 1, p. 439; Laws 1993, LB 121, Â§ 167.Case Note:Under this and succeeding sections where copies of complaint, summons, and interrogatories were sent by registered mail to limited partnership defendant at its foreign office, Nebraska long-arm statute was satisfied. Blum v. Kawaguchi, Ltd., 331 F. Supp. 216 (D. Neb. 1971).25-536. Jurisdiction over a person. A court may exercise personal jurisdiction over a person:(1) Who acts directly or by an agent, as to a cause of action arising from the person:(a) Transacting any business in this state;(b) Contracting to supply services or things in this state;(c) Causing tortious injury by an act or omission in this state;(d) Causing tortious injury in this state by an act or omission outside this state if the person regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state;(e) Having an interest in, using, or possessing real property in this state; or(f) Contracting to insure any person, property, or risk located within this state at the time of contracting; or(2) Who has any other contact with or maintains any other relation to this state to afford a basis for the exercise of personal jurisdiction consistent with the Constitution of the United States.Source: Laws 1967, c. 143, Â§ 2, p. 439; Laws 1983, LB 447, Â§ 35. Cross References: Resident agent appointment in real estate matters, see section 25-528. Service on foreign corporations, registered agent, see sections 21-1971 and 21-20,177. Service on foreign insurance corporations, see sections 44-135, 44-2009 to 44-2013, and 44-5507. Workers’ compensation cases, additional method of jurisdiction exists, see sections 48-146, 48-175, 48-175.01, and 48-190.Case Notes-Subject to Jurisdiction:1. Nonresident defendant’s conduct and connection with the State of Nebraska was such that it reasonably should have anticipated being haled into court over plaintiff’s cause of action for the return of its loan application fee. 24th and Dodge Ltd. v. Commercial Nat. Bank, 243 Neb. 98, 497 N.W.2d 386 (1993).2. In order to subject a defendant to a judgment in personam, if the defendant is not within the territory of the forum, due process requires that such defendant have certain minimum contacts with the forum state so that maintenance of the suit does not offend traditional notions of fair play and substantial justice. McGowan Grain v. Sanburg, 225 Neb. 129, 403 N.W.2d 340 (1987).3. The establishment of a marital relationship in this state from which a nonresident has left is sufficient minimum contact with this state to permit a court of this state to exercise in personam jurisdiction over the nonresident in an action to dissolve that marriage. York v. York, 219 Neb. 883, 367 N.W.2d 133 (1985).4. Company having an interest in, using or possessing real property in this state at a time when it was transacting business in this state was subject to jurisdiction of court in this state and its special appearance was properly overruled. Grand Island Hotel Corp. v. Second Island Development Co., 191 Neb. 98, 214 N.W.2d 253 (1974).5. Nonresident manufacturer comes under long-arm statute when it places its products in the stream of commerce expecting delivery in Nebraska. Stoehr v. American Honda Motor Co., Inc., 429 F. Supp. 763 (D. Neb. 1977).6. By statute, defendant is under state jurisdiction when defendant contracts for sale of motorcycles in Nebraska. Hetrick v. American Honda Motor Co., Inc., 429 F. Supp. 116 (D. Neb. 1976).7. Where after defendant Illinois corporation entered into distributorship agreement for Nebraska, area contacts were numerous and continuous. Nebraska corporations antitrust cause of action arose out of interrelated acts allegedly indicating unfair competition; sufficient contacts existed to permit in personam jurisdiction. Morton Buildings of Nebraska, Inc. v. Morton Buildings, Inc., 333 F. Supp. 187 (D. Neb. 1971).8. Where the delivery, installation, operation, and alleged injury resulting from defective machine occurred in Nebraska, the manufacturer who had shipped same indirectly was subject to Nebraska jurisdiction. Blum v. Kawaguchi, Ltd., 331 F. Supp. 216 (D. Neb. 1971).Case Notes-Not Subject to Jurisdiction:1. Neither an act of sexual intercourse between consenting adults nor the failure of a putative father to support his child is an act “causing tortious injury” under the terms of the Nebraska long-arm statute. State ex rel Larimore v. Snyder, 206 Neb. 64, 291 N.W.2d 241 (1980).2. For tortious act in other state, jurisdiction for damage action in Nebraska not supported by telephone calls, travel to Nebraska, and unspecified acts which induced victim to travel to other state. Von Seggern v. Saikin, 187 Neb. 315, 189 N.W.2d 512 (1971).3. Where defendants maintained no offices, salespersons, or agents in Nebraska; where contracts neither executed nor performed in Nebraska; where goods neither came from or to Nebraska; the Nebraska contracts insufficient to attach jurisdiction under long-arm statutes. Aaron Ferer & Sons Co. v. American Compressed Steel Co., 564 F.2d 1206 (8th Cir. 1977) affirming, Aaron Ferer & Sons Co. v. Atlas Scrap Iron & Metal Co., 558 F.2d 450 (8th Cir. 1977).4. National Trailer Leasing Company under facts of case not subject to jurisdiction under this section which requires actual presence in state plus additional requirement of regular or persistent course of conduct. Peterson v. U-Haul Co., 409 F.2d 1174 (8th Cir. 1969).5. Where the activities of a physician and hospital in administering chemotherapy treatment were localized and confined to the State of Iowa, there were insufficient contacts with Nebraska for purposes of application of the Nebraska long-arm statute in a wrongful death action against the physician and hospital, notwithstanding the foreseeability of alleged effects occurring in Nebraska where the patient resided. Glover v. Wagner, 462 F. Supp. 308 (D. Neb. 1978).6. Where purchase contracts were executed outside Nebraska by nonresident sellers for shipment of goods to other states, and defendants did not transact nor solicit business in Nebraska, buyers’ Nebraska residence did not give federal court in Nebraska personal jurisdiction in this suit under Bankruptcy Act. Aaron Ferer & Sons Co. v. Atlas Scrap Iron & Metal Co., 418 F. Supp. 674 (D. Neb. 1976).Case Notes-Miscellaneous:1. While language of this section does not cover divorce in specific words, it indicates the legislative intention to apply the minimum contacts rule where it does not offend traditional concepts of fair play and substantial justice. Stucky v. Stucky, 186 Neb. 636, 185 N.W.2d 656 (1971).2. Concept of due process in Nebraska’s long-arm statutes is at least as broad as the constitutional standard of due process. Pioneer Ins. Co. v. Gelt, 558 F.2d 1303 (8th Cir. 1977).3. Question of whether in personam jurisdiction is acquired under Nebraska long-arm statute depends primarily on the quantity, nature, and quality of the parties’ contacts with the forum state. Aaron Ferer & Sons Co. v. Atlas Scrap Iron & Metal Co., 558 F.2d 450 (8th Cir. 1977).4. It is a nonresident defendant’s contacts with the forum state that are of interest in determining if in personam jurisdiction exists, not its contacts with the resident plaintiff. Gendler v. General Growth Properties, 461 F. Supp. 434 (D. Neb. 1978).5. Nebraska long-arm statute is limited only by the constitutional constraints imposed by the minimum contacts rule. Vergara v. Aeroflot Soviet Airlines, 390 F. Supp. 1266 (D. Neb. 1975).6. Under facts in this case, defendant was amenable to service, and when copy of complaint and a summons were served by registered mail with signed receipt required, requirements of due process were met. General Leisure Products Corp. v. Gleason Corp., 331 F. Supp. 278 (D. Neb. 1971).25-537. Service outside state. When the exercise of personal jurisdiction is authorized by sections 25-535 to 25-541, service may be made outside this state.Source: Laws 1967, c. 143, Â§ 3, p. 439.Case Notes:1. Unless defendant transacts some business in Nebraska, jurisdiction over him may not be obtained hereunder by service outside the state. Conner v. Southern, 186 Neb. 164, 181 N.W.2d 446 (1970).2. Concept of due process in Nebraska’s long-arm statutes is at least as broad as the constitutional standard of due process. Pioneer Ins. Co. v. Gelt, 558 F.2d 1303 (8th Cir. 1977).25-539. Jurisdiction authorized. A court of this state may exercise jurisdiction on any other basis authorized by law.Source: Laws 1967, c. 143, Â§ 5, p. 440.Case Note:In personam jurisdiction may be acquired over a nonresident defendant in a divorce action by extra-territorial personal service of process made in accordance with a statute of this state if there exists sufficient contacts between the defendant and this state relevant to the cause of action to satisfy traditional notions of fair play and substantive justice. In this case, defendant’s last marital domicile was in Nebraska and no showing was made that it was later superseded by a new domicile. Stucky v. Stucky, 186 Neb. 636, 185 N.W.2d 656 (1971).25-540. Service outside state; manner.(1) When the law of this state authorizes service outside this state, the service, when reasonably calculated to give actual notice, may be made:(a) In the manner prescribed for service within this state;(b) In the manner prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction;(c) As directed by the foreign authority in response to a letter rogatory; or(d) As directed by the court.(2) Proof of service outside this state may be made by affidavit of the individual who made the service or in the manner prescribed by the law of this state, the order pursuant to which the service is made, 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.Source: Laws 1967, c. 143, Â§ 6, p. 440; Laws 1983, LB 447, Â§ 36.Cross Reference: Workers’ compensation cases, additional nonresident jurisdiction and method of proof of service exists, see section 48-175.01

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