Process Serving Laws

Missouri and Federal Process Serving Laws

What are the Missouri Rules of Civil Procedure that govern process service in Missouri?

What are the Federal Rules of Civil Procedure governing process service?

What are the Missouri Rules of Civil Procedure that govern process service in Missouri?

That would be Rule 54 of the Missouri Rules of Civil Procedure, quoted below.

“54.01. Clerk to Issue Process – Separate or Additional Summons

(a) Upon the filing of a pleading requiring service of process, the clerk shall forthwith issue the required summons or other process.

(b) The clerk shall deliver the summons or other process for service to:

(1) The sheriff or other person specially appointed to serve it; or

(2) The party if the party files a request that the clerk deliver it to the party.

(c) The person to whom the clerk delivers the summons or other process shall be responsible for promptly serving it with a copy of the pleading and any other paper requiring service.

(d) If a party files a request for separate or additional summons or other process, the clerk shall issue the requested process.

(Adopted Jan. 19, 1973, eff. Sept. 1, 1973. Amended June 1, 1993, eff. Jan. 1, 1994; May 23, 2001, eff. Jan. 1, 2002.)

54.02. Summons Shall Be Signed By Clerk

The summons shall be signed by the clerk, dated the day it is issued, be under the seal of the court, contain the name of the court and the names of the parties, and be directed to the defendant, stating the name and address of the plaintiff’s attorney, if any; otherwise the plaintiff’s address. It also shall state the time within which and the place where the defendant is required to appear and defend as provided by law and shall notify the defendant that in case of failure to do so judgment by default will be entered against the defendant for the relief demanded in the petition.

(Adopted Jan. 19, 1973, eff. Sept. 1, 1973. Amended Sept. 28, 1993, eff. Jan. 1, 1994.)

COMMITTEE NOTE – 1974

This is substantially the same as prior Rule 54.02.

Compare: Rule 4(b) of the Federal Rules of Civil Procedure

54.04. Summons – Service

A copy of the summons and petition shall be served together except when service is by publication.

54.05. Deputies Acting for Clerk or Sheriff

A deputy clerk or deputy sheriff shall have the same authority as the clerk or sheriff, respectively, to do any act which this Rule 54 authorizes the clerk or sheriff to do.

(Adopted Jan. 19, 1973, eff. Sept. 1, 1973.)

COMMITTEE NOTE – 1974

This is substantially the same as prior Rule 54.05.

Compare: Rules 4(c) and 45(c) of the Federal Rules of Civil Procedure

54.06. Service Outside the State on Persons, Firms or Corporations Who Do Certain Acts in This State

(a) Service outside the state sufficient to authorize a general judgment in personam may be obtained upon any person, executor, administrator or other legal representative, firm or corporation, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts enumerated in this Rule 54.06:

(1) Transacts any business within this state;

(2) Makes any contract within this state;

(3) Commits a tortious act within this state;

(4) Owns, uses or possesses any real estate situated in this state;

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

(6) Engages in an act of sexual intercourse within this state with the mother of a child within or near the probable period of conception of that child.

(b) Service sufficient to authorize a general judgment in personam may be obtained on any person, any person’s personal representative, or other legal representative, whether or not a citizen or resident of the state, who has lived in lawful marriage within this state, as to all civil actions for dissolution of marriage or for legal separation and all obligations arising for maintenance of a spouse, support of any child of the marriage, attorney fees, suit money or disposition of marital property, if the other party to the lawful marriage lives in this state or if a third party has provided support to the spouse or to the children of the marriage and is a resident of this state.

(c) Only causes of action arising from acts or conduct enumerated in Rule 54.06(a) or Rule 54.06(b) may be asserted against a defendant in an action in which jurisdiction is based on this Rule 54.06.

(d) Service of process may be made as provided in Rule 54.14 or Rule 54.16.

(Adopted Jan. 19, 1973, eff. Sept. 1, 1973. Amended May 18, 1973, eff. Jan. 1, 1974; April 8, 1977, eff. Jan. 1, 1978; June 10, 1989, eff. Jan. 1, 1990; June 16, 1989, eff. Jan. 1, 1990; June 1, 1993, eff. Jan. 1, 1994; Sept. 28, 1993, eff. Jan. 1, 1994; April 27, 1999, eff. Jan. 1, 2000; February 27, 2002, eff. Jan. 1, 2003.)

COMMITTEE NOTE – 1974 [REPEALED]

[Repealed June 1, 1993, eff. Jan. 1, 1994.]

54.07. Service Outside the State on Persons Domiciled in or Residents of This State

(a) Service outside the state sufficient to authorize a general judgment in personam may be obtained upon any person, executor, administrator or other legal representative, who was domiciled in or a resident of this state:

(1) At the time the claim for relief or cause of action accrued in this state; or

(2) At the time of the commencement of the civil action; or

(3) At the time of the service of process.

(b) Service of process may be made as provided in Rule 54.14 or Rule 54.16.

(Adopted Jan. 19, 1973, eff. Sept. 1, 1973. Amended June 1, 1993, eff. Jan. 1, 1994; Sept. 28, 1993, eff. Jan. 1, 1994.)

54.08. Service on Nonresident Motorists or Nonresident Watercraft Owners or Operators

In civil actions in which service of process may be obtained under the provision of sections 506.200 to 506.310, 506.330 or 506.340, RSMo, service of process may be made as provided in Rule 54.14 or Rule 54.15 or Rule 54.16.

(Adopted Jan. 19, 1973, eff. Sept. 1, 1973. Amended June 1, 1993, eff. Jan. 1, 1994; May 27, 1999, eff. Jan. 1, 2000.)

54.09. Service on Foreign Corporations

In civil actions in which the service of process may be obtained under the provisions of section 351.380, RSMo, service of process may be made as provided in Rule 54.14 or Rule 54.16.

(Adopted Jan. 19, 1973, eff. Sept. 1, 1973. Amended June 1, 1993, eff. Jan. 1, 1994.)

54.10. Service on Insurance Companies Not Authorized To Do Business in This State

In civil actions in which service of process may be obtained under the provisions of section 375.256, RSMo, service of process may be made as provided in Rule 54.14 or Rule 54.15 or Rule 54.16.

(Adopted Jan. 19, 1973, eff. Sept. 1, 1973. Amended June 1, 1993, eff. Jan. 1, 1994.)

54.12. Service – In Rem or Quasi In Rem Civil Actions

(a) Service, Generally. In civil actions affecting a fund, will, trust, estate, specific property, or any interest therein, or any res or status within the jurisdiction of the court, service of process may be made as provided in Rule 54.13 or Rule 54.14, or as otherwise provided in this Rule 54.12.

(b) Service by Mail. A party requesting service by registered or certified mail shall file an affidavit made by the party or by someone on behalf of the party, stating:

(1) Why personal service cannot be had in this state on the party to be served by mail, and

(2) The name and address of the party to be served by mail.

The clerk shall thereupon mail to the party to be served a summons and copy of the pleading by registered or certified mail, requesting a return receipt signed by addressee only.

(1) Service by publication shall be by notice published by order of the court or clerk thereof.

(2) Such order shall issue when the party desiring service by publication files a statement verified by the party or by a person on behalf of the party stating: (A) that one or more of the persons to be served are unborn or their names are unknown to the party desiring service by publication or facts showing why service cannot be obtained under Rule 54.12(b), Rule 54.13, Rule 54.14 or Rule 54.16, and (B) the last known address of the party to be served or in lieu thereof a statement that said address is unknown. It shall be sufficient to name or describe unborn or unknown parties as the heirs, grantees or successors of the person to whom the property to be affected was last known to have been transferred.

(3) The notice shall state: (A) that an action has been commenced; (B) briefly the object and general nature thereof; (C) a description of any property to be affected; (D) the name of the court and the names of the parties to the civil action; (E) the name and address of the attorney, if any, for plaintiff, otherwise the plaintiff’s address; (F) that judgment by default will be entered against defendant unless the defendant files an answer or other pleading or otherwise appears and defends within forty-five days after the date of the first publication, or such longer time as the court may fix by order; and (G) the date of the first publication.

(4) The notice shall be published at least once each week for four consecutive weeks in a newspaper of general circulation published in the county where the civil action is commenced designated by the party requesting publication. If there is no such newspaper, then the publication shall be in a newspaper designated by the court.

(5) If the address of any of the parties to be served by publication is given in the verified statement, the clerk shall: (A) within ten days after such order of publication mail a copy of the order of publication of notice and a copy of the petition to each such defendant and (B) file a certificate that such copies have been mailed.

(6) Repealed by Supreme Court order of Apr. 23, 1996, eff. Jan. 1, 1997

(Adopted Jan. 19, 1973, eff. Sept. 1, 1973. Amended June 1, 1993, eff. Jan. 1, 1994; April 23, 1996, eff. Jan. 1, 1997.)

54.13. Personal Service Within the State

(a) By Whom Made. Service of process within the state, except as otherwise provided by law, shall be made by the sheriff or a person over the age of 18 years who is not a party to the action.

(b) How and on Whom Made. Personal service within the state shall be made as follows:

(1) On Individual. Upon an individual, including an infant or incompetent person not having a legally appointed guardian, by delivering a copy of the summons and petition personally to the individual or by leaving a copy of the summons and petition at the individual’s dwelling house or usual place of abode with some person of the individual’s family over the age of fifteen years, or by delivering a copy of the summons and petition to an agent authorized by appointment or required by law to receive service of process.

(2) On Conservator. Upon an infant or disabled or incapacitated person who has a legally appointed conservator, by delivering a copy of the summons and petition to the conservator as provided in Rule 54.13(b)(1).

(3) On Corporation, Partnership or Other Unincorporated Association. Upon a domestic or foreign corporation or upon a partnership or other unincorporated association, when it may be sued as such, by delivering a copy of the summons and petition to an officer, partner, or managing or general agent, or by leaving the copies at any business office of the defendant with the person having charge thereof or by delivering copies to its registered agent or to any other agent authorized by appointment or required by law to receive service of process.

(4) On Public or Quasi-Public Corporation or Body. Upon a public, municipal, governmental or quasi-public corporation or body, by delivering a copy of the summons and petition to the clerk of the county commission in the case of a county, to the mayor or city clerk or city attorney in the case of a city, to the chief executive officer in the case of any public, municipal, governmental or quasi-public corporation or body or to any person otherwise lawfully so designated. If no person above specified is available for service, the court out of which the process issued may designate an appropriate person to whom copies of the summons and petition may be delivered in order to effect service.

(c) Acknowledgment of Service. When a defendant shall acknowledge in writing, endorsed on the process, signed by the defendant’s own proper signature, the service of such process, and waive the necessity of the service thereof by an officer, such acknowledgment shall be deemed as valid as service in the manner provided by law. Acknowledgment of service by mail may also be made as provided in Rule 54.16.

(d) Where Process May Be Served in This State. All process issued for service within this state may be served anywhere within the state and may be forwarded to the sheriff of any county for the purpose of service.

(Adopted Jan. 19, 1973, eff. Sept. 1, 1973. Amended June 1, 1993, eff. Jan. 1, 1994; June 21, 2002, eff. Jan. 1, 2003.)

54.14. Personal Service Outside the State

(a) By Whom Made. Personal service outside the state shall be made:

(1) By a person authorized by law to serve process in civil actions within the state or territory where such service is made, or by the deputy of a person so authorized;

(2) By a person appointed by the court in which the action is pending.

(b) Upon Whom. The service of process shall be made as provided in Rule 54.13(b).

(Adopted Jan. 19, 1973, eff. Sept. 1, 1973. Amended June 1, 1993, eff. Jan. 1, 1994.)

54.15. Service on Secretary of State, Secretary of Public Service Commission and Director of Insurance

(a) Service of Process. Service of process on the secretary of state, secretary of the public service commission or director of insurance shall be made by serving a copy of the summons and petition, together with any remittance fixed by statute, on the respective official. The service of process shall be made as provided in Rule 54.13 or Rule 54.16.

(b) Notice to Defendant. The secretary of state, secretary of the public service commission or director of the department of insurance shall forthwith mail to the defendant at the defendant’s last known address a copy of such service and a copy of the summons and petition. The mailing shall be by registered or certified mail requesting a return receipt signed by addressee only.

To (here insert the name of the defendant and defendant’s last known address.) You will take notice that original process in the suit against you, a copy of which is attached hereto, was duly served upon you at Jefferson City, Missouri, by serving the same on (here insert the name of the public official.) Dated at __________, Missouri, this _____ day of ___________, 19____

______________________

(appropriate official)

(Adopted Jan. 19, 1973, eff. Sept. 1, 1973. Amended June 1, 1993, eff. Jan. 1, 1994.)

54.16. Acknowledgment of Service By Mail

Service of the summons and petition upon a resident or nonresident defendant of any class referred to in Rule 54.13(b)(1)(2) or (3) may be made by mailing a copy of the summons and petition by first class mail, postage prepaid, to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to Civil Procedure Form 4B or Civil Procedure Form 4C and a return envelope, postage prepaid addressed to the sender. If no acknowledgment of service under this Rule 54.16 is completed and returned to the sender, service of the summons and petition shall be made as otherwise provided by statute or rule. Unless good cause is shown for not doing so, the court shall order the payment of costs of service on the person served if such person does not complete and return within thirty days after mailing, the notice and acknowledgment of receipt of summons.

(Adopted Jan. 19, 1973, eff. Sept. 1, 1973. Amended June 14, 1988, eff. Jan. 1, 1989; June 1, 1993, eff. Jan. 1, 1994.)

54.18. Service Authorized by Statute

Where a statute contains provisions for a method of service, service may be made pursuant to the provisions of the statute or as provided by these Rules.

(Adopted Jan. 19, 1973, eff. Sept. 1, 1973.)

54.19. Provisions No Bar to Personal Service in State

The foregoing provisions relative to service of process in suits against non-residents do not prevent personal service in the state upon a non-resident.

(Adopted Jan. 19, 1973, eff. Sept. 1, 1973.)

54.20. Proof of Service

(a) Within the State – Officer’s Returns – Affidavits of Service.

(1) Every officer to whom summons or other process shall be delivered for service within the state shall make return thereof in writing as to the time, place and manner of service of such writ and shall sign such return.

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

(3) If service of process is made pursuant to Rule 54.16, the defendant’s acknowledgement, executed pursuant to Rule 54.16, shall constitute proof of service.

(b) Outside the State – Officer’s Returns – Affidavits of Service.

(1) Every officer to whom summons or other process shall be delivered for service outside the state shall make an affidavit before the clerk or judge of the court of which affiant is an officer or other person authorized to administer oaths in such state stating the time, place and manner of such service, the official character of the affiant, and the affiant’s authority to serve process in civil actions within the state or territory where such service was made. The court may consider the affidavit or any other evidence in determining whether service has been properly made.

2) If service of such process is made by a person appointed by the court in which the action is pending such person shall file an affidavit stating the time, place and manner of such service. The court may consider the affidavit or any other evidence in determining whether service has been properly made.

(3) If service of process is made outside the state pursuant to Rule 54.16, the defendant’s acknowledgment, executed pursuant to Rule 54.16, shall constitute proof of service of process.

(c) Certificate of Secretary of State, Secretary of Public Service Commission and Director of Insurance – Mailing of Notice. The notice specified in Rule 54.15 shall be proved by the affidavit of the official mailing such notice. The affidavit shall be endorsed upon or attached to the original papers to which it relates and it, together with the return registered or certified mail receipt, shall be forthwith filed in the court in which the action is pending.

(d) Clerk’s Certificate – Service by Mail. Service by mail pursuant to Rule 54.12 shall be proved by the certificate of the clerk that a copy of the summons and petition has been mailed and by the filing of the return registered or certified receipt.

(e) Affidavit – Certificate – Service by Publication. Service by publication shall be proved by an affidavit showing the dates upon which and the newspaper in which the notice was published. A copy of the notice shall be attached to the affidavit which shall be filed. The clerk’s certificate that a copy of the notice upon order for service by publication and a copy of the petition were mailed to defendant at the address stated in the plaintiff’s petition or in the affidavit for order of publication and the date of the mailing shall likewise be filed.

(f) Refusal to Receive Service. When the person to be served or an agent authorized to accept service of process for the person to be served, either within or outside the state, shall refuse to receive copies thereof, the offer of the server to deliver copies thereof, and such refusal, when these facts are shown on the server’s return, shall constitute proof of service. When service is made by mail pursuant to Rule 54.12, a notation made pursuant to applicable United States Postal Service regulation that the certified or registered mail has been refused shall constitute proof of service.

(Adopted Jan. 19, 1973, eff. Sept. 1, 1973. Amended June 5, 1980, eff. Jan. 1, 1981; L.1988, H.B. No. 1600, eff. Aug. 13, 1988; amended June 14, 1988, eff. Jan. 1, 1989; June 2, 1992, eff. Jan. 1, 1993; June 1, 1993, eff. Jan. 1, 1994.

54.21. Time for Service and Return

The officer or other person receiving a summons or other process shall serve the same and make return of service promptly. If the process cannot be served it shall be returned to the court within thirty days after the date of issue with a statement of the reason for the failure to serve the same; provided, however, that the time for service thereof may be extended up to ninety days from the date of issue by order of the court.

(Adopted Jan. 19, 1973, eff. Sept. 1, 1973.)

54.22. Court May Allow Process, Return or Proof of Service to be Amended, When

(a) The court may in its discretion allow any process, return or proof of service thereof to be filed or amended at any time unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued. The return of service shall be considered prima facie evidence of the facts recited therein.

(b) The party served, or the sheriff, sheriff’s deputies and sureties or any other person making the service shall be permitted to show the true facts of service and impeach the return when the return does not comport with the facts as found by the court. If the court finds that the facts recited in the return are not true, the court may set aside a judgment if one has been entered or may modify the same in whole or in part as justice may require or take such further action it deems proper.

(Adopted Jan. 19, 1973, eff. Sept. 1, 1973. Amended by L.1984, p. 792, H.B. No. 947, § 1, eff. Aug. 13, 1984; June 1, 1993, eff. Jan. 1, 1994.)

What are the Federal Rules of Civil Procedure governing process service?

Section II Rule 4

RULE 4. SUMMONS

(a) Contents; Amendments.

(1) Contents.

A summons must:

(A) name the court and the parties;

(B) be directed to the defendant;

(D) state the time within which the defendant must appear and defend;

(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;

(F) be signed by the clerk; and

(G) bear the court’s seal.

(2) Amendments.

The court may permit a summons to be amended.

(b) Issuance.

On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summons — or a copy of a summons that is addressed to multiple defendants — must be issued for each defendant to be served.

(1) In General.

A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.

(2) By Whom.

Any person who is at least 18 years old and not a party may serve a summons and complaint.

(3) By a Marshal or Someone Specially Appointed.

At the plaintiff’s request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.

(d) Waiving Service.

(1) Requesting a Waiver.

An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must:

(A) be in writing and be addressed:

(i) to the individual defendant; or

(ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process;

(B) name the court where the complaint was filed;

(D) inform the defendant, using text prescribed in Form 5, of the consequences of waiving and not waiving service;

(E) state the date when the request is sent;

(F) give the defendant a reasonable time of at least 30 days after the request was sent — or at least 60 days if sent to the defendant outside any judicial district of the United States — to return the waiver; and

(G) be sent by first-class mail or other reliable means.

(2) Failure to Waive.

If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant:

(A) the expenses later incurred in making service; and

(B) the reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses.

(3) Time to Answer After a Waiver.

A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent — or until 90 days after it was sent to the defendant outside any judicial district of the United States.

(4) Results of Filing a Waiver.

When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver.

(5) Jurisdiction and Venue Not Waived.

Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.

(e) Serving an Individual Within a Judicial District of the United States.

Unless federal law provides otherwise, an individual — other than a minor, an incompetent person, or a person whose waiver has been filed — may be served in a judicial district of the United States by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(f) Serving an Individual in a Foreign Country.

Unless federal law provides otherwise, an individual – other than a minor, an incompetent person, or a person whose waiver has been filed – may be served at a place not within any judicial district of the United States:

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

(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

(A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction;

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

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

(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or

(3) by other means not prohibited by international agreement, as the court orders.

(g) Serving a Minor or an Incompetent Person.

A minor or an incompetent person in a judicial district of the United States must be served by following state law for serving a summons or like process on

such a defendant in an action brought in the courts of general jurisdiction of the state where service is made. A minor or an incompetent person who is not

within any judicial district of the United States must be served in the manner prescribed by Rule 4(f)(2)(A), (f)(2)(B), or (f)(3).

(h) Serving a Corporation, Partnership, or Association.

Unless federal law provides otherwise or the defendant’s waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:

(1) in a judicial district of the United States:

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and of the complaint 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 and the statute so requires — by also mailing a copy of each to the defendant; or

(2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).

(i) Serving the United States and Its Agencies, Corporations, Officers, or Employees.

(1) United States.

To serve the United States, a party must:

(A)

(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought — or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk — or

(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney’s office;

(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and

(C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.

(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity.

To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.

(3) Officer or Employee Sued Individually.

To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g).

(4) Extending Time.

The court must allow a party a reasonable time to cure its failure to:

(A) serve a person required to be served under Rule 4(i)(2), if the party has served either the United States attorney or the Attorney General of the United States; or

(B) serve the United States under Rule 4(i)(3), if the party has served the United States officer or employee.

(j) Serving a Foreign, State, or Local Government.

(1) Foreign State.

A foreign state or its political subdivision, agency, or instrumentality must be served in accordance with 28 U.S.C. § 1608.

(2) State or Local Government. A state, a municipal corporation, or any other state-created governmental organization that is subject to suit must be served by:

(A) delivering a copy of the summons and of the complaint to its chief executive officer; or

(B) serving a copy of each in the manner prescribed by that state’s law for serving a summons or like process on such a defendant.

(k) Territorial Limits of Effective Service.

(1) In General.

Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:

(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;

(B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or

(2) Federal Claim Outside State-Court Jurisdiction.

For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if:

(A) the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction; and

(B) exercising jurisdiction is consistent with the United States Constitution and laws.

(l) Proving Service.

(1) Affidavit Required.

Unless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server’s affidavit.

(2) Service Outside the United States.

Service not within any judicial district of the United States must be proved as follows:

(A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or

(B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee.

(3) Validity of Service; Amending Proof.

Failure to prove service does not affect the validity of service. The court may permit proof of service to be amended.

(m) Time Limit for Service.

If a defendant is not served within 120 days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1).

(n) Asserting Jurisdiction over Property or Assets.

(1) Federal Law.

The court may assert jurisdiction over property if authorized by a federal statute. Notice to claimants of the property must be given as provided in the statute or by serving a summons under this rule.

(2) State Law.

On a showing that personal jurisdiction over a defendant cannot be obtained in the district where the action is brought by reasonable efforts to serve a summons under this rule, the court may assert jurisdiction over the defendant’s assets found in the district. Jurisdiction is acquired by seizing the assets under the circumstances and in the manner provided by state law in that district.

RULE 4.1. SERVICE OF OTHER PROCESS

(a) In General.

Process — other than a summons under Rule 4 or a subpoena under Rule 45 — must be served by a United States marshal or deputy marshal or by a person specially appointed for that purpose. It may be served anywhere within the territorial limits of the state where the district court is located and, if authorized by a federal statute, beyond those limits. Proof of service must be made under Rule 4(l).

(b) Enforcing Orders: Committing for Civil Contempt.

An order committing a person for civil contempt of a decree or injunction issued to enforce federal law may be served and enforced in any district. Any other order in a civil-contempt proceeding may be served only in the state where the issuing court is located or elsewhere in the United States within 100 miles from where the order was issued.

RULE 5. SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS

(a) Service: When Required.

(1) In General.

Unless these rules provide otherwise, each of the following papers must be served on every party:

(A) an order stating that service is required;

(B) a pleading filed after the original complaint, unless the court orders otherwise under Rule 5(c) because there are numerous defendants;

(D) a written motion, except one that may be heard ex parte; and

(E) a written notice, appearance, demand, or offer of judgment, or any similar paper.

(2) If a Party Fails to Appear.

No service is required on a party who is in default for failing to appear. But a pleading that asserts a new claim for relief against such a party must be served on that party under Rule 4.

(3) Seizing Property.

If an action is begun by seizing property and no person is or need be named as a defendant, any service required before the filing of an appearance, answer, or

claim must be made on the person who had custody or possession of the property when it was seized.

(b) Service: How Made.

(1) Serving an Attorney.

If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party.

(2) Service in General.

A paper is served under this rule by:

(A) handing it to the person;

(B) leaving it:

(i) at the person’s office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or

(ii) if the person has no office or the office is closed, at the person’s dwelling or usual place of abode with someone of suitable age and discretion who resides there;

(D) leaving it with the court clerk if the person has no known address;

(E) sending it by electronic means if the person consented in writing — in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served; or

(F) delivering it by any other means that the person consented to in writing — in which event service is complete when the person making service delivers it to the agency designated to make delivery.

(3) Using Court Facilities.

If a local rule so authorizes, a party may use the court’s transmission facilities to make service under Rule 5(b)(2)(E).

(1) In General.

If an action involves an unusually large number of defendants, the court may, on motion or on its own, order that:

(A) defendants’ pleadings and replies to them need not be served on other defendants;

(B) any crossclaim, counterclaim, avoidance, or affirmative defense in those pleadings and replies to them will be treated as denied or avoided by all other parties; and

(2) Notifying Parties.

A copy of every such order must be served on the parties as the court directs.

(d) Filing

(1) Required Filings; Certificate of Service.

Any paper after the complaint that is required to be served — together with a certificate of service — must be filed within a reasonable time after service. But disclosures under Rule 26(a)(1) or (2) and the following discovery requests and responses must not be filed until they are used in the proceeding or the court orders filing: depositions, interrogatories, requests for documents or tangible things or to permit entry onto land, and requests for admission.

(2) How Filing Is Made — In General.

A paper is filed by delivering it:

(A) to the clerk; or

(B) to a judge who agrees to accept it for filing, and who must then note the filing date on the paper and promptly send it to the clerk.

(3) Electronic Filing, Signing, or Verification.

A court may, by local rule, allow papers to be filed, signed, or verified by electronic means that are consistent with any technical standards established by the Judicial Conference of the United States. A local rule may require electronic filing only if reasonable exceptions are allowed. A paper filed electronically in compliance with a local rule is a written paper for purposes of these rules.

(4) Acceptance by the Clerk.

The clerk must not refuse to file a paper solely because it is not in the form prescribed by these rules or by a local rule or practice.

Rule 5.1. Constitutional Challenge to a Statute – Notice, Certification, and Intervention

(a) Notice by a Party.

A party that files a pleading, written motion, or other paper drawing into question the constitutionality of a federal or state statute must promptly:

(1) file a notice of constitutional question stating the question and identifying the paper that raises it, if:

(A) a federal statute is questioned and the parties do not include the United States, one of its agencies, or one of its officers or employees in an official capacity; or

(B) a state statute is questioned and the parties do not include the state, one of its agencies, or one of its officers or employees in an official capacity; and

(2) serve the notice and paper on the Attorney General of the United States if a federal statute is questioned — or on the state attorney general if a state statute is questioned — either by certified or registered mail or by sending it to an electronic address designated by the attorney general for this purpose.

(b) Certification by the Court.

The court must, under 28 U.S.C. § 2403, certify to the appropriate attorney general that a statute has been questioned.

Unless the court sets a later time, the attorney general may intervene within 60 days after the notice is filed or after the court certifies the challenge, whichever is earlier. Before the time to intervene expires, the court may reject the constitutional challenge, but may not enter a final judgment holding the statute unconstitutional.

(d) No Forfeiture.

A party’s failure to file and serve the notice, or the court’s failure to certify, does not forfeit a constitutional claim or defense that is otherwise timely asserted.

Process Serving Laws

We Like

Contact Us