TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 4, N.D.R.Civ.P.; Persons Subject to Jurisdiction--Process--Service
The North Dakota Supreme Court recently issued a decision in Comstock Const., Inc. v. Sheyenne Disposal, Inc., 2002 ND 141. One question in this case was whether Comstock responded in time to Sheyenne's N.D.C.C. § 35-27-25 demand that Comstock file suit on a mechanic's lien.
An issue raised in the Court's consideration of this question was what constitutes adequate service when a code provision requires something to be "served on the person" as does N.D.C.C. § 35-27-25. The Rules of Civil Procedure offer two service alternatives: service under N.D.R.Civ.P. 4 or 5.
While N.D.R.Civ.P. 4(d) discusses "personal service," N.D.R.Civ.P. 4(d)(1) indicates that subdivision (d) applies to service of "process." "Process" is discussed in N.D.R.Civ.P. 4(c) and seems to apply particularly to the summons used to commence an action.
N.D.R.Civ.P. 5(a) discusses how a laundry list of items (excluding the initial summons and complaint) may be served under the terms of the rule. N.D.R.Civ.P. 5, however, does not discuss "personal service."
Both N.D.R.Civ.P. 4 and 5 allow service by mail. N.D.R.Civ.P. 4(d)(A)(v) requires that the person receiving the mailed item sign a receipt (and service is complete at the time of signing); N.D.R.Civ.P. 5(b) does not require a receipt be obtained for the mailed item and declares "service by mail is complete upon mailing."
In Comstock, the Court noted that the statutes from which N.D.C.C. § 35-27-25 were derived (in particular, R.C. 35-1222) predate the Rules of Civil Procedure. Under the statutory procedural rules in place prior to adoption of the Rules of Civil Procedure, there was no provision for "personal service" of process to be made by mail. See R.C. 28-0601-28-0619, 28-2811. "Motions, orders and notices," however, could be served by mail. R.C. 28-2812-28-2816. Yet, service by mail of such a document was not considered "personal service." See R.C. 28-2811.
N.D.R.Civ.P. 4's standards for "personal service" by mail seem a compromise between the code's stiff requirements for "personal service" and the more relaxed standards for "service by mail" in the code (and in N.D.R.Civ.P. 5).
In Comstock, the Court decided N.D.R.Civ.P. 4's provisions would guide it in its determination of when the subject N.D.C.C. § 35-27-25 demand was served: it decided that service of the demand by registered mail, receipt required, was adequate under the terms of the statute and it decided that the person to whom the demand was directed was "served" at the time reflected on the mail receipt. And it also decided that N.D.R.Civ.P. 6's time computation rules would apply to determining whether a response to a demand was timely.
The Court's actions in the Comstock case suggest that the Court would apply the rules of N.D.R.Civ.P. 4 and 6 if faced with a "personal service" question under a code provision. The Court is concerned, however, that practitioners may not learn about Comstock or understand the Court's decisions in it regarding personal service and computation of time for a response to service of an item when such service is required by the Code.
Staff has prepared a proposed amendment to N.D.R.Civ.P. 4 for discussion by the Committee. The Committee may wish to consider what sort of service should be deemed adequate under a code provision requiring "personal service" like N.D.C.C. § 35-27-25 and what rules should be amended to ensure that practitioners are aware of the proper standard for service under a code provision and the time rules that apply in such a case.