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Behind the Bar: You’ve Been Served- A Lesson on Rule 4 of the Federal Rules of Civil Procedure (pt. 2)

Benjamin N. Neece, Attorney, Woodruff Family Law Group

“Behind the Bar” is a multi-part blog series that will focus on specific aspects of the practice of law ranging from the Rules of Evidence, Rules of Civil Procedure, and other important legal practice technicalities in an effort to provide readers a better understanding of regularly overlooked and misunderstood concepts that lawyers are faced with on a day-to-day basis. 

In our previous installment of “Behind the Bar” we touched on the first part of Rule 4: Service of process, and the requirements involving the “who” and “what” aspects of the rule. In this installment we will complete our review of Rule 4 by discussing the “when,” “where,” and “how;” relating to proper service of a Summons.

Proper service to a “natural person” can be attained by delivering a copy of the Summons and Complaint (S&C) to the individual personally, or leaving copies at the dwelling house or regular abode with “someone of suitable age/discretion residing therein.” It can also be accomplished by delivering a copy of the S&C to an agent authorized by appointment (an Attorney) or law to be served or accept service; mailing a copy by certified mail or registered mail, return receipt requested, addressed to party, and delivering it; or using a designated delivery service authorized under the law to effectuate process and obtaining a delivery receipt. There exist many other potential types of parties to legal proceedings, each requiring slight variations to the rule; but regardless of who the party to receive process is, Rule 4 provides many avenues to meet the requirements set forth therein.

Even in this day and age, with all the advantages of technology and information, the circumstance may arise where personal execution of service upon an individual is effectively impossible because they are unable to be located.  In this situation, where a party cannot, with due diligence be served by normal means, they may be served by publication.  Service by this means consists of publishing notice of service once a week for three consecutive weeks in a newspaper which is qualified for legal advertising which is circulated in the area where party to be served is reasonably believed to be located, or if that information is unknown, in the county where action is pending.  In either case, proof of service must be completed by means of submitting affidavits with the court showing that service was properly executed and where service was via publication, the affidavit must state why publication was necessary and proof of said publication.

Rule 4 affords plaintiffs who are unable to obtain service of the original summons two easy methods for keeping the action alive.  Plaintiff may obtain an “endorsement” on the original summons or obtain an “alias or pluries” (A&P) summons to be returned in the same manner as the original process. Either option can be exercised at any time within 90 days after issuance of the last summons or endorsement. Endorsements are rare while A&P summons are the most common method for extending time for service and may only be issued by the clerk upon request. If time for service is not extended by either of the two aforementioned methods, the action is discontinued as to any defendant not properly served within the time allowed.

While the nuances of Rule 4 are broad, complex, and seemingly never ending; these basic principles are essential guidelines to be followed by practicing attorneys during the course of the litigation process.  Despite the complex and tedious nature of Civil Procedure, the more participants to litigation understand what is happening behind the scenes and the requirements attorneys face under the law, hopefully a resulting healthier relationship between attorney and clients will develop.