RULE 4. PERSONS SUBJECT TO JURISDICTION–; PROCESS–; SERVICE
(a) Definition of Person. As used in this rule, “person,” whether or not a citizen or domiciliary of this state and whether or not organized under the laws of this state, includes:
(1) an individual, executor, administrator or other personal representative;
(2) any other fiduciary;
(3) any two or more persons having a joint or common interest;
(4) a partnership;
(5) an association;
(6) a corporation; and
(7) any other legal or commercial entity.
(b) Personal Jurisdiction Over Person.
(1) Personal Jurisdiction Based Upon on Presence or Enduring Relationship. A court of this state may exercise personal jurisdiction over a person found within, domiciled in, organized under the laws of, or maintaining his or its a principal place of business in, this state as to any claim for relief.
(2) Personal Jurisdiction Based Upon on Contacts. A court of this state may exercise personal jurisdiction over a person who acts directly or by an agent as to any claim for relief arising from the person's: having such contact with this state that the exercise of personal jurisdiction over the person does not offend against traditional notions of justice or fair play or the due process of law, under one or more of the following circumstances:
(A) transacting any business in this state;
(B) contracting to supply or supplying service, goods, or other things in this state;
(C) committing a tort within or without outside this state causing injury to another person or property within this state;
(D) committing a tort within this state, causing injury to another person or property within or without outside this state;
(E) owning, having any an interest in, using, or possessing property in this state;
(F) contracting to insure another person, property, or other risk within this state;
(G) acting as a director, manager, trustee, or officer of a corporation organized under the laws of, or having its principal place of business within, this state;
(H) enjoying any other legal status or capacity within this state; or
(I) engaging in any other activity, including cohabitation or sexual intercourse, within this state.
(3) Limitation on Jurisdiction Based Upon on Contacts. If jurisdiction over a person is based solely upon on paragraph (2) of this subdivision, only a claim for relief arising from bases enumerated therein in paragraph (2) may be asserted against that person.
(4) Acquisition of Jurisdiction. A court of this state may acquire personal jurisdiction over any person through service of process as provided in this rule or by statute, or by voluntary general appearance in an action by any person either personally or through an attorney or any other authorized person.
(5) Inconvenient Forum. If the court finds, that in the interest of substantial justice, the action should be heard in another forum, the court may stay or dismiss the action in whole or in part on any condition that may be just.
(1) Summons Contents of Summons. The summons must:
(A) specify the venue of the court in which the action is brought;,
(B) contain the title of the action specifying the names of the parties;, and
(C) be directed to the defendant;. It must
(D) state the time within which these rules require the defendant to appear and defend;, and must
(E) notify the defendant that, in case of the defendant's failure to do so if the defendant fails to appear and defend, default judgment by default will be rendered against the defendant for the relief demanded in the complaint; and. It must
(F) be dated and subscribed by the plaintiff or the plaintiff's attorney and include the post office address of the plaintiff or plaintiff's attorney.
(See Rule 4(e)(8) for additional information required if the action involves real estate and service is by publication.)
(2) Summons Served With Complaint. A copy of the complaint must be served with the summons, except when service is by publication as provided in under N.D.R.Civ.P. Rule 4(e).
(3) Summons Served and Complaint Not Filed: Demand to File the Complaint. The defendant may serve a written demand on the plaintiff to file the complaint as follows:.
(A) Service service of the demand must be made under N.D.R.Civ.P. Rule 5(b) on the plaintiff's attorney or under N.D.R.Civ.P. Rule 4(d) on the plaintiff if the plaintiff is not represented by an attorney;.
(B) In in cases with multiple defendants, service of a demand by one defendant is effective for all the defendants;.
(C) If if the plaintiff does not file the complaint within 20 days after service of the demand, service of the summons is void; and.
(D) The the demand must contain notice that if the complaint is not filed within 20 days, service of the summons is void under this rule, unless, after motion made within 60 days after service of the demand for filing, the court finds excusable neglect.
(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:
(A) within the state by any person of legal age and not a party to nor interested in the action; and
(B) 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 where service is made, or by a person who is designated by a court of this state.
(2) How Service of Process is Made Within the State. Personal service of process within the state must be made as follows:
(A) Serving an Individual Fourteen Years of Age and Older. upon Service must be made on 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 residence in the presence of a person of suitable age and discretion then residing therein who resides there;
(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) Serving an Individual Under the Age of Fourteen. upon Service must be made on an individual under the age of 14 years, by delivering a copy of the summons to:
(i) the individual's guardian, if the individual has one within the state;, and, if not, then to
(ii) the individual's father or mother parent or any person or agency having the individual's care or control, or with whom the individual resides, if the individual does not have a guardian within the state; or. If service cannot be made upon any of them, then
(iii) the person as directed designated by court order, of the court if service cannot be made under (i) or (ii).;
(C) Serving an Incompetent Individual or Appointed Guardian. upon Service must be made on 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) Serving a Corporation, Partnership, or Association. upon Service must be made on a domestic or foreign corporation or upon on 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 on its behalf, or to one who acted as an agent for the defendant with respect to the matter upon on which the plaintiff’s claim of the plaintiff is based and who was an agent of the defendant at the time of service;
(ii) if the sheriff's return indicates 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) Serving a Municipal or Public Corporation. upon Service must be made on 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) Serving the State and Its Agencies.
(i) State. upon Service must be made on the state, by delivering a copy of the summons to the governor or attorney general or an assistant attorney general. and,
(ii) State Agency. upon Service must be made on an agency of the state, such as the Bank of North Dakota or the State North Dakota 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) Serving an Agent Not Authorized to Receive Process. if If service is made upon on an agent who is not expressly authorized by appointment or by law to receive service of process on 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 with return receipt requested not later than ten days after service by depositing the same a copy of the summons and complaint, 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 the defendant's last reasonably ascertainable address.
(3) How Service of Process is Made Outside the State. Service upon on any person subject to the personal jurisdiction of the courts of this state may be made outside the state:
(A) in the same manner as 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 under the law of the place in which the where service is made for service in that place in an action in any of its courts of general jurisdiction; or
(C) as directed by court order of the court.
(e) Service by Publication.
(1) When Service by Publication Permitted. A defendant, whether known or unknown, who has not been served personally under the foregoing subdivisions (d) of this rule may be served by publication in the manner hereinafter provided in one or more of the following situations only if:
(A) The the claim for relief is based upon on one or more grounds for the exercise of personal jurisdiction under paragraph (2) of subdivision (b) of this rule;
(B) The the subject of the action is real or personal property in this state, and:
(i) the defendant has or claims a lien thereon or other interest therein in the property, whether vested or contingent, or
(ii) the relief demanded against the defendant consists wholly or partly in excluding the defendant from that lien or interest or in defining, regulating, or limiting that lien or interest, or
(iii) the action otherwise affects the title to the property;
(C) The the action is to foreclose a mortgage, cancel a contract for sale, or to enforce a lien upon on or a security interest in real or personal property in this state;
(D) The the plaintiff has acquired a lien upon on the defendant’s property or credits of the defendant within this state by attachment, garnishment, or other judicial processes and the property or credit is the subject matter of the litigation or the underlying claim for relief relates to the property or credits;
(E) The the action is for divorce, separation from bed and board, or annulment of a marriage of a state resident of this state; or
(F) the action is to determine parenting rights and responsibilities of an individual subject to the court's jurisdiction; or
(F)(G) The the action is to award, partition, condemn, or escheat real or personal property in this state.
(2) Filing of Complaint and Affidavit for Service by Publication. Before service of the summons by publication is authorized in any case, there must be filed with the clerk of the court in which the action is commenced a complaint setting forth a claim in favor of the plaintiff and against the defendant based on one or more of the situations specified in paragraph (1) of this subdivision and an affidavit executed by the plaintiff or the plaintiff's attorney stating, as may be applicable, one or more of the following:
Before service of the summons by publication is authorized, a complaint and affidavit must be filed with the clerk of court where the action is initiated. The complaint must set forth a claim in favor of the plaintiff and against the defendant and be based on one or more of the situations specified in paragraph (e)(1). The affidavit must be executed by the plaintiff or the plaintiff’s attorney and must state one or more of the following:
(A) That that after diligent inquiry personal service of the summons cannot be made upon on the defendant in this state to the best knowledge, information, and belief of the affiant;
(B) That that the defendant is a domestic corporation which that has forfeited its charter or right to do business in this state or has failed to file its annual report as required by law;
(C) That that the defendant is a domestic or foreign corporation and has no officer, director, superintendent, managing agent, business agent, or other agent authorized by appointment or by law upon on whom service of process can be made in on its behalf in this state; or
(D) That that all persons having or claiming an estate or interest in, or lien or encumbrance upon on, the real property described in the complaint, whether as heirs, devisees, legatees, or personal representative of a deceased person, or under any other title or interest, and not in possession, nor appearing of record in the office of the register of deeds, the clerk of the district court, or the county auditor of the county in which the real property is situated, to have such a claim, title or interest therein in the property, are proceeded against as unknown persons defendant pursuant to under N.D.C.C. Chapter Chs. 32-17 or 32-19 of the North Dakota Century Code, and stating facts necessary to satisfy the requirements of those chapters.
(3) Number of Publications. Service of the summons by publication may be made by publishing the same summons 3 three times, once in each week for 3 three successive weeks, in a newspaper published in the county in which where the action is pending., and if If no newspaper is published in that county, then publication may be made in a newspaper having a general circulation therein in the county although published in another county.
(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 no later than 10 14 days after the first publication of the summons, must be deposited in a 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 address.
(5) Personal Service Outside State is Equivalent to Publication. After the affidavit for publication and the complaint in the action are filed, personal service of the summons and complaint upon on the defendant out of outside the state is equivalent to and has the same force and effect as the publication and mailing or delivery provided for in paragraphs (e)(3) and (4) of this subdivision.
(6) Time When First Publication or Service Outside State Must Be Made. The first publication of the summons, or personal service of the summons and complaint upon on the defendant out of outside the state, must be made within 60 days after the filing of the affidavit for publication. If not so made, the action is deemed considered discontinued as to any defendant not served within that time.
(7) When Defendant Served by Publication is Permitted to Defend.
(A) The defendant upon whom service by who is served 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 the 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, 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.
(B) Except in an action for divorce, the defendant who is served by publication, or the defendant's representative, on just terms, may be allowed to defend at any time within three years after entry of judgment if the defendant files an affidavit with the court that states:
(i) the defendant has a good and meritorious defense to the action; and
(ii) the defendant had no actual notice or knowledge of the action to enable the defendant to make application to defend before the entry of judgment.
(C) If the defense is successful and the judgment, or any part of the judgment, has been collected or otherwise enforced, restitution may be ordered by the court, but the title to property sold under the judgment to a purchaser in good faith may not be affected.
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.
(D) A defendant is considered to have had notice of the action and of the judgment if the defendant:
(i) receives a copy of the summons in the action by mail or delivery under paragraph (e)(4); or
(ii) is personally served the summons outside the state under paragraph (e)(5).
(8) Additional Information to be Published for Real Property. In all cases where in which publication of summons is made in an action in which that the title to, or an interest in or lien upon on, real property is involved or affected or brought into question, the publication must also contain a description of the real property and a statement of the object of the action.
(f) Service Upon Serving a Person in a Foreign Country. Unless otherwise provided by law, service upon an individual, other than an infant a minor or an incompetent person, may be effected in served at a place not within any judicial district of the United States:
(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or
(2) if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided the service is reasonably calculated to give notice:
if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that 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
as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction;
(B) as directed by the foreign authority in response to a letter rogatory or letter of request; or
as the foreign authority directs in response to a letter rogatory or letter of request; or
(C) unless prohibited by the foreign country’s law of the foreign country, by:
(i) delivery to the individual personally of a copy of the summons and the complaint; or
delivering a copy of the summons and the complaint to the individual personally; 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
using any form of mail or third-party commercial delivery that the clerk addresses and sends to the individual and that requires a signed receipt; or
(3) by any other means not prohibited by international agreement, as may be directed by the court orders.
(4) Serving a Minor or Incompetent Person. Unless otherwise provided by law, service must be effected upon an infant made on a minor or an incompetent person in a place not within any judicial district of the United States in the manner prescribed by paragraphs (2)(A) or (B)(2)(B), and (3).
(5) Serving a Foreign Corporation, Partnership, or Association. Unless otherwise provided by law, service must be effected upon made on a foreign corporation, partnership or other unincorporated association, that is subject to suit under a common name, in a place not within any judicial district of the United States in the manner prescribed for individuals in this subdivision except personal delivery as provided in under paragraph (2)(C)(i).
(g) When Service by Publication or Outside State is Complete. Service by publication is complete upon the expiration of fifteen days after the first publication of the summons. Personal service of the summons and complaint upon the defendant out of outside the state is complete upon the expiration of fifteen days after the date of service.
(h) Amendment of Process or Proof of Service. At any time and upon such notice and terms as it deems just, the court, in its discretion, may allow any process or proof of service thereof to be amended unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.
The court may allow any process or proof of service to be amended at any time on notice and just terms, unless it clearly appears that the substantial rights of the party against whom the process was issued would be materially prejudiced.
(i) Proof of Service. Proof of service of the summons and of the complaint or notice, if any, accompanying the same summons or of other process, must be made as follows:
(1) if served by the sheriff or other officer, by the officer's certificate of service;
(2) if served by any other person, by the server's affidavit of service;
(3) if served by publication, by an affidavit made as provided in Section N.D.C.C. § 31-04-06 of the North Dakota Century Code and an affidavit of mailing 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) under paragraph (e)(4) of this rule, if the same summons and complaint has been deposited;
(4) in any other case of service by mail or delivery via a third-party commercial carrier resulting in delivery in accordance with paragraph (2) or (3) of subdivision (d) of this rule under paragraph (d)(2) or (d)(3), by an affidavit of mailing 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.
(j) Contents of Proof of Service.
(1) The certificate, affidavit, or admission of service mentioned in subdivision (i) of this rule must state the date, time, place, and manner of service.
(2) If the process, pleading, order of court, or other paper is served personally by a person other than the sheriff or person designated by law, the affidavit of service must also state that:
(A) the server is of legal age and not a party to the action nor interested in the action, and that
(B) the server knew the person served to be the person named in the papers served and the person intended to be served.
(k) Contents of Affidavit of Mailing or Delivery via a Third-party Commercial Carrier. An affidavit of mailing or delivery required by this rule must:
(1) state a 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 mail 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 address;. The affidavit must
(2) contain the date and place of deposit; and
(3) indicate the affiant is of legal age; and.
(4) The contain the 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 that delivery was refused by the addressee is prima facie evidence of the refusal.
(m) Service Under Statute. If a statute requires service and does not specify a method of service, service must be made under this rule.
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; March 1, 2004; March 1, 2007; August 1, 2009; ________________.
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.
Paragraph (c)(2) was amended, effective March 1, 2007, to require the complaint to be served with the summons under most circumstances.
Paragraph (c)(3) was amended, effective March 1, 2007. The amendment allows a demand to file the complaint to be served on an attorney using N.D.R.Civ.P. 5 procedure. The amendment clarifies that, in a multiple defendant case, service of a demand by one defendant is effective for all defendants. The amendment provides an exception for excusable neglect in responding to a demand to file complaint.
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 (l) was added in 1983, effective September 1, 1983, to make it clear that refusal of delivery by the addressee constitutes delivery.
Paragraph (d)(4) was deleted and subdivision (m) was added, effective March 1, 2004, to clarify that, when a statute requires service and no method of service is specified, service must be made under this rule. Statutes governing special procedures often conflict with these rules. As an example, N.D.C.C. 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).
Paragraph (e)(4) was amended, effective ______________, to increase the time to deposit a copy of the summons and complaint with a post office or third-party commercial carrier from 10 to 14 days after the first publication of the summons.
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.
Rule 4 was amended, effective _______________, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Sources: Joint Procedure Committee Minutes of ________________; May 21-22, 2009, pages 44-45; April 27-28, 2006, pages 11-14; January 30-31, 2003, pages 6-10; September 26-27, 2002, pages 15-18; 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 Fed.R.Civ.P. 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, N.D.C.C.
Cross Reference: N.D.R.Civ.P. 5 (Service and Filing of Pleadings and Other Papers), N.D.R.Civ.P. 6 (Time); N.D.R.Civ.P. 12 (Defenses and objections - When and how presented - By pleading or motion - Motion for judgment on pleadings); N.D.R.Civ.P. 45 (Subpoena), and N.D.R.Civ.P. 81 (Applicability In General); N.D.R.Ct. 8.4 (Summons in Action for Divorce or Separation).