TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 4, N.D.R.Civ.P., Persons Subject to Jurisdiction - Process - Service
During its April meeting, the Committee drafted proposed amendments to Rule 4 to be submitted with the Committee's report on commencement of actions. Committee member Larry Boschee expressed concern that the proposed amendments allowed people commencing actions too much time to serve their complaints after filing. Staff was directed to research whether states using commencement by filing have implemented any rules to encourage timely service of the complaint.
Staff found that most of the states that use commencement by filing have imposed a 120-day service time limit rule similar to that found in the federal rules. Two states, Iowa and Massachusetts, use a 90-day service deadline and the District of Columbia and Vermont use a 60-day service deadline. On the other hand, Oklahoma has a 180-day service deadline and Idaho and Ohio allow six months for service.
As for nearby states, Wyoming has no deadline for service of the complaint, but under Wyo.R.Civ.P. 3, if service is not made within 60 days of filing, the action is considered commenced on the date of service rather than the date of filing. In Montana, R.Civ.P. 4E allows plaintiffs three years after filing to serve the complaint. Copies of these rules are attached.
Under 8th Circuit precedent, determining whether a plaintiff had good cause not to meet Fed.R.Civ.P. 4(m)'s 120-day service requirement is a discretionary question for the district court and a decision on whether this requirement can be waived in a given case will only be reversed when there is abuse of discretion. See Adams v. Allied Signal Gen. Aviation Avionics, 74 F.3d 882 (8th Cir. 1996).