Rules 4 and 5 of NC Civil Procedure – Spotting the Differences
Whether you are a North Carolina law student, newly admitted to the practice of law, or a layperson involved in a civil lawsuit, you will hear quite a bit about service, service of process and certificates of service. In previous blogs, we have reviewed the basics of Rules 4 and 5 of The North Carolina Rules of Civil Procedure, but for those just becoming acquainted with the Rules, it ‘s hard to differentiate which rule applies, and when. For those who are involved in a lawsuit, it is always best to hire an attorney who can answer your questions fully and advise you of your rights. However, as a way to learn more about Rules 4 and 5 let’s look at some scenarios, and how these Rules regarding service are applied.
Scenario 1 – I want to keep my lawsuit as amiable as possible. Can I just hand all of the documents to the opposing party rather than getting a sheriff involved or mailing everything to them?
Yes, in theory, but it is ill-advised to do so with service of process. Rule 4 is all about getting personal jurisdiction over the opposing party so the court may enter orders in your case. Rule 5 is about giving appropriate notice to the opposing party of pleadings and other papers filed with the court. While both of these aspects are important, if you screw up service of process (serving the opposing party with your Summons and Complaint) your entire case can be dismissed for lack of personal jurisdiction. It is better to get the Sheriff to try to serve the opposing party so there is a neutral third party who can attest to the fact that the opposing party is properly served. With all subsequent pleadings, you can serve these by hand, but you must file a Certificate of Service with the Court to document this service.
Scenario 2 – My crazy ex has refused to move out of the house, even though I have asked her to leave. I want to serve her with a Complaint for Divorce from Bed and Board. Can I just leave it for her on the kitchen counter so I can avoid the extra drama?
No. Since this is a new filing Rule 4 will apply on how to serve the opposing party with the Summons and Complaint. It is important to remember that just leaving documents where the opposing party might find them is never proper under either Rule 4 or Rule 5.
Scenario 3 – I recently got a Summons and Complaint, but it was not given to me by sheriff or by mail. It was delivered to my Mom’s address for some reason. I do not live with my Mom, but she gave me the documents when I visited her this week. Is this proper service?
No. Since this is regarding service of process Rule 4 applies. Unless your Mom is your registered agent with the Secretary of State, and this is not proper service.
Scenario 4 – I have an ongoing lawsuit. I was initially served by the sheriff at my house, but since then I have not been getting copies of any documents the opposing party is filing with the court. Is the opposing party allowed to do this?
No. Under Rule 5 the opposing party must serve these pleadings on you, and each pleading must be accompanied by a Certificate of Service. The Certificate of Service is also supposed to be filed with the Court, so there is proof of when the opposing party served you with these pleadings. Checking the court file for these Certificates of Service will tell you when and where the opposing party served these pleadings, if at all.
Although Rules 4 and 5 of the North Carolina Rules of Civil Procedure may look similar at the outset, once you dig into the substance of the Rules it becomes easier to differentiate between the two.
by Jennifer A. Crissman, Woodruff Family Law Group