RULE 4. PERSONS SUBJECT TO JURISDICTION--
* * * * *
* * * * *
(3) Summons Served and Complaint Not Filed. The defendant may serve a written demand
uponon the plaintiff to file the complaint. Service of the demand must be made under subdivision (d) on the plaintiff's attorney or on the plaintiff if the plaintiff is not represented by an attorney. 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).
(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 or third-party commercial delivery 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's
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 or third-party commercial delivery 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
inon behalf of the defendant, a copy of the summons and complaint must be mailed or delivered via a third-party commercial carrier to the defendant by registered or certified mailwith return receipt requested not later than ten days after service by depositing the same, with postage or shipping prepaid, in a post office or with a commercial carrier 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; or
(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.
(e) Service by Publication.
* * * * *
(4) Mailing or Delivering Summons and Complaint. A copy of the summons and complaint, at any time after the filing of the affidavit for publication and not later than 10 days after the first publication of the summons, must be deposited in
somea post office or with a third-party commercial carrier in this state, postage or shipping prepaid, and directed to the defendant to be served at the defendant's last reasonably ascertainable post officeaddress.
(5) Personal Service Outside State Equivalent to Publication. After the affidavit for publication and the complaint in the action are filed, personal service of the summons and complaint upon the defendant out of state is equivalent to and has the same force and effect as the publication and mailing or delivery provided for in paragraphs (3) and (4) of this subdivision.
* * * * *
(7) When Defendant Served by Publication Permitted to Defend. The defendant upon whom service by publication is made, or the defendant's representative, on application and sufficient cause shown at any time before judgment, must be allowed to defend the action. Except in an action for divorce, the defendant upon whom service by publication is made, or the defendant's representative, upon making it appear to the satisfaction of the court by affidavit, stating the facts, that the defendant has a good and meritorious defense to the action, and
thatthe defendant had no actual notice or knowledge of the pendency of the action so as to enable the defendant to make application to defend before the entry of judgment therein, and upon filing an affidavit of merits, may be allowed to defend at any time within 3 years after entry of judgment on such terms as may be just. If the defense is successful and the judgment, or any part thereofof the judgment, has been collected or otherwise enforced, suchrestitution thereuponmay be compelled asordered by the court directs, but the title to property sold under thatthe judgment to a purchaser in good faith ismay not be therebyaffected. A defendant who receives a copy of the summons in the action mailed or delivered to the defendant as provided in paragraph (4), or upon whom the summons is personally served out of this state, as provided in paragraph (5), is deemed to have had notice of the pendency of the action and of the judgment therein entered.
* * * * *
(f) Service Upon a Person in a Foreign Country. Unless otherwise provided by law, service upon an individual, other than an infant or an incompetent person, may be effected in a place not within any judicial district of the United States:
* * * * *
(2) if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided
thatthe service is reasonably calculated to give notice:
(A) in the manner prescribed by law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or
(B) as directed by the foreign authority in response to a letter rogatory or letter of request; or
(C) unless prohibited by the law of the foreign country, by
(i) delivery to the individual personally of a copy of the summons and the complaint; or
(ii) any form of mail or third-party commercial delivery requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or
* * * * *
(i) Proof of Service. Proof of service of the summons and of the complaint or notice, if any, accompanying the same or of other process, must be made as follows:
(1) if served by the sheriff or other officer, by the officer's certificate
(2) if served by any other person, by the server's affidavit
(3) if served by publication, by an affidavit made as provided in Section 31-04-06 of the North Dakota Century Code and an affidavit of
themailing or an affidavit of delivery via a third-party commercial carrier of a copy of the summons and complaint in accordance with subdivision (4) of subsection (e) of this rule, if the same shall havehas been deposited;
(4) in any other case of service by
mailingmail or delivery via a third-party commercial carrier resulting in delivery in accordance with paragraph (2) or (3) of subdivision (d) of this rule, by an affidavit of themailing or an affidavit of delivery of a copy of the summons and complaint or other process, with return receipt attached; or
(5) by the written admission of the defendant.
* * * * *
(k) Content of Affidavit of Mailing or Delivery via a Third-party Commercial Carrier. An affidavit of mailing or delivery required by this rule must state
thata copy of the process, pleading, order of court, or other paper to be served was deposited by the affiant, with postage or shipping prepaid, in the United Statesmail or with a third-party commercial carrier and directed to the party shown in the affidavit to be served at the party's last reasonably ascertainable post officeaddress ,. showing The affidavit must contain the date and place of depositingdeposit and thatindicate the affiant is of legal age. and having attached thereto theThe return receipt, if any, must be attached to the affidavit.
(l) Effect of Mail or Delivery Refusal. If a summons and complaint or other process is mailed or sent with delivery restricted and requiring a receipt signed by the addressee, the addressee's refusal to accept the mail or delivery constitutes delivery. Return of the mail or delivery bearing an official indication on the cover
thatdelivery was refused by the addressee is prima facie evidence of the refusal.
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; March 1, 1999.
Rule 4 governs civil jurisdiction and service of process. In contrast, Rule 5 applies to service of papers other than process.
Rule 4 was amended, effective March 1, 1999, to allow delivery via a third-party commercial carrier as an alternative to the Postal Service. The requirement for a "third-party" is consistent with the rule's requirement for personal service by a person not a party to nor interested in the action. The requirement for a "commercial carrier" means it must be the regular business of the carrier to make deliveries for profit. A law firm may not act as its own commercial carrier service for service of process. Finally, the phrase "commercial carrier" is not intended to include or authorize electronic delivery. Service via e-mail or facsimile transmission is not permitted by Rule 4.
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 or delivery by third-party commercial carrier, 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 or delivery for purposes of service. On the other hand, if the mail or delivery is unclaimed, no service is made. Subdivision
(k)(l) 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 April 30-May 1, 1998, pages 3, 8, and 11; January 29-30, 1998, pages 17-18; 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.