RULE 4. PERSONS SUBJECT TO JURISDICTION--
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(d) Personal Service.
(1) By Whom Process Served. Service of all process may be made: within the state by any person of legal age not a party to nor interested in the action; and outside the state by any person who may make service under the law of this state or under the law of the place in which service is made or who is designated by a court of this state.
(2) How Service Made Within the State. Personal service of process within the state must be made as follows:
(A) upon an individual 14 or more years of age by (i) delivering a copy of the summons to the individual personally; (ii) leaving a copy of the summons at the individual's dwelling house or usual place of abode in the presence of a person of suitable age and discretion then residing therein; (iii) delivering, at the office of the process server, a copy of the summons to the individual's spouse if the spouses reside together; (iv) delivering a copy of the summons to the individual's agent authorized by appointment or by law to receive service of process; or (v) any form of mail addressed to the individual to be served and requiring a signed receipt and resulting in delivery to that individual;
(B) upon an individual under the age of 14 years, by delivering a copy of the summons to the individual's guardian, if the individual has one within the state, and, if not, then to the individual's father or mother or any person or agency having the individual's care or control, or with whom the individual resides. If service cannot be made upon any of them, then as directed by order of the court;
(C) upon an individual who has been judicially adjudged incompetent or for whom a guardian of the individual's person or estate has been appointed in this state, by delivering a copy of the summons to the individual's guardian. If a general guardian and a guardian ad litem have been appointed, both must be served;
(D) upon a domestic or foreign corporation or upon a partnership or other unincorporated association, by (i) delivering a copy of the summons to an officer, director, superintendent or managing or general agent, or partner, or associate, or to an agent authorized by appointment or by law to receive service of process in its behalf, or to one who acted as an agent for the defendant with respect to the matter upon which the claim of the plaintiff is based and who was an agent of the defendant at the time of service; (ii) if the sheriff
makes areturn thatindicates no person upon whom service may be made can be found in the county, then service may be made by leaving a copy of the summons at any office of the domestic or foreign corporation, partnership or unincorporated association within this state with the person in charge of the office; or (iii) any form of mail addressed to any of the foregoing persons and requiring a signed receipt and resulting in delivery to that person;
(E) upon a city, township, school district, park district, county, or any other municipal or public corporation, by delivering a copy of the summons to any member of its governing board;
(F) upon the state, by delivering a copy of the summons to the governor or attorney general or an assistant attorney general and, upon an agency of the state, such as the Bank of North Dakota or the State Mill and Elevator Association, by delivering a copy of the summons to the managing head of the agency or to the attorney general or an assistant attorney general; or
(G) if service is made upon an agent who is not expressly authorized by appointment or by law to receive service of process in behalf of the defendant, a copy of the summons and complaint must be mailed to the defendant by registered or certified mail with return receipt requested not later than ten days after service by depositing the same, with postage prepaid, in a post office in this state and directed to the defendant to be served at
histhe defendant's last reasonably ascertainable address.
(3) How Service Made Outside the State. Service upon any person subject to the personal jurisdiction of the courts of this state may be made outside the state:
(A) in the manner provided for service within this state, with the same force and effect as though service had been made 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) by any form of mail addressed to the person to be served and requiring a signed receipt and resulting in delivery to that person;
(D)(C) as directed by order of the court.
(4) Service Under Statute. Whenever a statute of this state or an order of the court
made pursuant theretoprovides for theservice of a summons or of a notice or of an order in lieu of summons upon a party not an inhabitant of or found within the state, service must be made under the circumstances and in the manner prescribed by the statute or order or in any manner permitted by these rules and not precluded by the statute or order.
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Rule 4 was amended, effective 1971; January 1, 1976; January 1, 1977; January 1, 1979; September 1, 1983; March 1, 1986; March 1, 1990; March 1, 1996; March 1, 1998;_____________________________.
Originally, Rule 4 concerned process, with no mention of jurisdiction. In 1971, what are now subdivisions (a) [Definition of Person] and (b) [Jurisdiction Over Person] were added. They were taken from the Uniform Interstate and International Procedure Act. Many changes were also made to subdivision (d) [previously (c)] concerning personal service, several of which were taken from that Act.
Subdivision (c) was amended, effective March 1, 1998, to provide a defendant with the means to compel the plaintiff to file the action.
Subdivision (d) was amended, effective March 1, 1998, to allow personal service by delivering a copy of the summons to an individual's spouse.
A problem may arise with service by mail under subdivisions (d)(2) or (d)(3)(C) when the person to be served refuses delivery. This refusal of delivery is tantamount to receipt of the mail for purposes of service. On the other hand, if the mail is unclaimed, no service is made. Subdivision (k) was added in 1983, effective September 1, 1983, to make it clear that refusal of delivery by the addressee constitutes delivery.
Statutes governing special procedures often conflict with these rules. As an example, NDCC 32-19-32 concerning the time period for mailing the summons and complaint after publication in a mortgage foreclosure conflicts with Rule 4(e)(4). In this situation, Rules 4(d)(4) and 81(a) recognize that provisions of the statute prevail.
A new subdivision (f) was added, effective March 1, 1996, to provide procedures for service upon a person in a foreign country. The new procedures follow Rule 26(f), Fed.R.Civ.P. The letter designation of each subdivision was changed accordingly.
SOURCES: Procedure Committee Minutes of ___________________; September 25-26, 1997, page 2; January 30, 1997, pages 6-7, 10-12; September 26-27, 1996, pages 14-16; January 26-27, 1995, pages 7-8; April 20, 1989, page 2; December 3, 1987, pages 1-4 and 11; May 21-22, 1987, page 5; November 29, 1984, pages 3-5; September 30- October 1, 1982, pages 15-18; April 15-16, 1982, pages 2-5; December 11-12, 1980, page 2; October 30-31, 1980, page 31; January 17-18, 1980, pages 1-3; November 29-30, 1979, page 2; October 27-28, 1977, page 10; April 8-9, 1976, pages 5-9; Rule 4, FRCivP.
SUPERSEDED: Sections 28-0502, 28-0503, 28- 0504, 28-0505, 28-0601, 28-0602, 28-0603, 28-0604, 28-0605, 28-0606, 28-0607, 28-0608, 28-0609, 28- 0610, 28-0616, 28-0619, 28-0620, 28-0621, 28-0622, 28-0623, 28-0624, 28-0625, 28-0626, 28-0627, 28- 0628, 28-0629, 28-0632, 28-3001, NDRC 1943, and Chapters 28-06, 28-06.1, NDCC.
CROSS REFERENCE: Rules 5 (Service and Filing of Pleadings and Other Papers), 45 (Subpoena), and 81 (Applicability In General), NDRCivP; Rule 8.4 (Summons in Action for Divorce or Separation), NDROC.