“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.
No two legal proceedings are alike, each has a different set of facts, parties, circumstances, and inevitably, different outcomes. One thing most share, however, is the seemingly endless number of steps and hoops to climb and jump through in reaching a conclusion. Why, you might ask, does the legal process take so long and be so complicated? A big part of the answer to this question involves behind the scenes activity known as the “Rules of Civil Procedure,” which comprehensively regulates every aspect of legal proceedings in extensive detail. Rule 4 is one of the most basic and fundamental rules that regulates Summons, the process of service, and the consequences of failing to follow proper procedure.
By design, Rule 4 provides a detailed roadmap of how to effectuate service of process while providing a framework for providing notice of claims and proceedings to adverse parties. While purely a technical aspect of the legal process, the vitality of abiding by this rule cannot be understated as no court has jurisdiction to proceed with a legal matter until proper service occurs. Simply put, it does not matter how many other boxes are checked in the legal process, failure to meet the requirements under Rule 4 will keep your case on the sidelines until they are met.
At the core, Rule 4 enforces the basic principle that a party to a legal proceeding will be given both notice and an opportunity to be heard before being deprived of a claim or defense. Language often used in describing the purpose of Rule 4 may be along the lines of, “giving actual notice to a party than an action has been commenced against them within a reasonable time after being filed.” Rule 4 provides guidelines that must be followed in order to effectively provide proper notice to a party, what the contents of the Summons must entail, and how to properly serve (aka give actual notice) to the party which the action is being filed against.
Under North Carolina law, a Summons must be issued within five (5) days of the filing of a complaint with the Clerk of Court by a proper individual as prescribed by law. A proper person usually consists of a sheriff of the county where service is to be made, or any other individual duly authorized by law to serve. This five-day requirement assures that no undue delay will occur in notifying adverse parties that an action has been filed against them. Failure to do so will cause the action to abate, but if a summons is issued more than five days after the filing will revive the action and commences it anew as of the date of issue. In an effort to “streamline” this first step, if the individual to be served is located outside of North Carolina, any individual over the age of 21 and who is not a party to the lawsuit may effectuate service of process.
A Summons must contain the title of cause, name of the court & county where action has been commenced, designation of named defendant(s), instruction to appear and answer the complaint within 30 days of service upon them, and notice that a failure to do so will result in Plaintiff applying to the court for relief demanded in the complaint. The most common defendants to legal proceedings consist of individuals, what the law designates as “natural persons.” As you can see, some technical aspects of the law are extensive, and even all of this does not fully address everything Rule 4 entails. In our next post, we will touch on arguably the most important step under Rule 4- proper service of the Summons.
Behind the Bar Series
by Benjamin N. Neece, Attorney, Woodruff Family Law Group