M E M O
TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 4, N.D.R.Civ.P.; Persons Subject to Jurisdiction--Process--Service
The Committee discussed amending N.D.R.Civ.P. 4 at its September meeting to include a new subdivision indicating that, when a statute does not specify a method of service, service should be made under Rule 4. Such a clarifying amendment would be consistent with the Supreme Court's reasoning in the recent Comstock Const., Inc. v. Sheyenne Disposal, Inc., 2002 ND 141 decision.
In the course of discussing appropriate language for the new subdivision, the Committee noted that paragraph (d)(4) of Rule 4 seemed to be relevant to the issue of what method of service should be used when service is required under a statute. However, further examination of paragraph (d)(4) led the Committee to conclude that the provision was limited to matters involving out-of-state parties.
Paragraph (d)(4) has been part of the Rules of Civil Procedure since North Dakota adopted them in 1957 (it was designated as subdivision (f) at that time). A close reading of the provision, and the portion of the explanatory note referring to it, seems to suggest that it was not meant to apply only to matters involving out-of-state parties, but instead to all matters where service was required by a statute or order.
The language in question is as follows: "Whenever a statute of this state or an order of the court provides for service 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." When this sentence is read in the context of the language in the explanatory note, it seems likely that the phrase "upon a party not an inhabitant of or found within the state" is meant to modify only "or of an order in lieu of summons" and not to apply to the entire sentence.
Therefore, the proposed revision of Rule 4 that is presented for the Committee's consideration at this meeting contains a revised paragraph (d)(4) that includes the language formulated by the Committee in September. Paragraph (d)(4) as revised is also streamlined, with confusing language eliminated.
In discussing the amended provision, the Committee may wish to consider whether revised paragraph (d)(4) should stay where it is or whether it should be a freestanding and separate subdivision (as it was originally). As part of subdivision (d), it does not stand out and readers might assume (since subdivision (d) is the "personal service" provision) that it only applies in cases involving personal service. It was clear from the Committee's discussion in September that the Committee wanted other means of service under Rule 4, such as service by publication, to be available when parties are required by statute to serve an item.