RULE 4. PERSONS SUBJECT TO JURISDICTION--PROCESS--SERVICE

(c) Process.

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(2) Summons Served With or Without Complaint. A copy of the complaint need not be served with the summons in which case the summons must state that the complaint is or will be filed with the clerk of the court in which the action is commenced, and if the defendant within 20 days after service of the summons causes notice of appearance to be given and in person or by an attorney demands in writing a copy of the complaint, specifying a place within the state where it may be served, a copy thereof within 20 days thereafter must be served accordingly. If, in that case, the complaint is not filed with the clerk within 20 days after service of the summons, the action is deemed discontinued.

(3) Summons Served and Complaint Not Filed. The defendant may serve a written demand upon the plaintiff to file the complaint. Service of the demand must be made under subdivision (d). If the plaintiff does not file the complaint within 20 days after service of the demand, service of the summons is void. The demand must contain notice that if the complaint is not filed within 20 days, service of the summons is void under this rule.

(4) The defendant may file the summons and complaint, and the costs incurred on behalf of the plaintiff may be taxed as provided in Rule 54(e).

EXPLANATORY NOTE

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;__________________.

Rule 4 governs civil jurisdiction and service of process in North Dakota. Of necessity, it only slightly resembles Rule 4, FRCivP.

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 , to provide a defendant with the means to compel the plaintiff to file the action.

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: Supreme Court Conference Minutes of October 23, 1989. Procedure Committee Minutes of _______________; 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.

STATUTES AFFECTED:

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.