(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:
an individual, executor, administrator or other personal representative; any other fiduciary;
any two or more persons having a joint or common interest; a partnership; an association; a
corporation; and any other legal or commercial entity.
(b) Jurisdiction Over Person.
(1) Personal Jurisdiction Based Upon 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 principal place of business in, this state
as to any claim for relief.(c) Process.
(2) Personal Jurisdiction Based Upon 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 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 this state;
(E) owning, having any 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
(3) Limitation on Jurisdiction Based Upon Contacts. If jurisdiction over a person is
based solely upon paragraph (2) of this subdivision, only a claim for relief arising from bases
enumerated therein 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. The summons must specify the venue of the court in which
the action is brought, contain the title of the action specifying the names of the parties, and
be directed to the defendant. It must state the time within which these rules require the
defendant to appear and defend, and must notify the defendant that in case of the defendant’s
failure to do so, judgment by default will be rendered against the defendant for the relief
demanded in the complaint. It must 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.)(d) Personal Service.
(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 N.D.R.Civ.P. 4(e).
(3) Summons Served and Complaint Not Filed. The defendant may serve a written
demand on the plaintiff to file the complaint. Service of the demand must be made under
N.D.R.Civ.P. 5(b) on the plaintiff’s attorney or under N.D.R.Civ.P. 4(d) on the plaintiff if
the plaintiff is not represented by an attorney. In cases with multiple defendants, service of
a demand by one defendant is effective for all the defendants. If the plaintiff does not file the
complaint within 20 days after service of the demand, service of the summons is void, unless,
after motion made within 60 days after service of the demand for filing, the court finds
excusable neglect. 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 N.D.R.Civ.P. 54(e).
(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.(e) Service by Publication.
(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
(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 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) 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
(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 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, 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
(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) as directed by order of the court.
(1) When Service by Publication Permitted. A defendant, whether known or unknown,
who has not been served personally under the foregoing subdivisions of this rule may be
served by publication in the manner hereinafter provided in one or more of the following
situations only if:
(f) Service Upon a Person in a Foreign Country.
(A) The claim for relief is based upon one or more grounds for the exercise of
personal jurisdiction under paragraph (2) of subdivision (b) of this rule;
(B) The subject of the action is real or personal property in this state and the defendant
has or claims a lien thereon or other interest therein, whether vested or contingent, or 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 the
action otherwise affects the title to the property;
(C) The action is to foreclose a mortgage, cancel a contract for sale, or to enforce a
lien upon or a security interest in real or personal property in this state;
(D) The plaintiff has acquired a lien upon property or credits or 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
(E) The action is for divorce, separation from bed and board, or annulment of a
marriage of a resident of this state or to determine
custodyparenting rights and
responsibilitiesof an individual subject to the court’s jurisdiction; or
(F) The action is to award, partition, condemn, or escheat real or personal property in
(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:
(A) That after diligent inquiry personal service of the summons cannot be made upon
the defendant in this state to the best knowledge, information, and belief of the affiant;
(B) That the defendant is a domestic corporation which 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 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 whom service of process can be made in its behalf in this state;
(D) That all persons having or claiming an estate or interest in, or lien or encumbrance
upon, 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 claim, title or interest therein, are proceeded against as unknown persons
pursuant to under Chapter 32-17 or 32-19 of the North Dakota Century Code, and
stating facts necessary to satisfy the requirement of those chapters.
(3) Number of Publications. Service of the summons by publication may be made by
publishing the same 3 times, once in each week for 3 successive weeks, in a newspaper
published in the county in which the action is pending, and if no newspaper is published in
that county then in a newspaper having a general circulation therein although published in
(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 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 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
(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 the
defendant out of the state, must be made within 60 days after the filing of the affidavit for
publication. If not so made, the action is deemed discontinued as to any defendant not served
within that time.
(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 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. 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.
(8) Additional Information to be Published. In all cases where publication of summons
is made in an action in which the title to, or an interest in or lien upon, 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.
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:
(1) by any internationally agreed means reasonably calculated to give notice, such as
those means authorized by the Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents; or(g) When Service by Publication or Outside State Complete.
(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
(A) in the manner prescribed by law to 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
(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;
(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
(3) by any other means not prohibited by international agreement as may be directed
by the court. Unless otherwise provided by law, service must be effected upon an infant 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), and (3). Unless otherwise provided by law,
service must be effected upon 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 paragraph (2)(C)(i).
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 state is complete
upon the expiration of fifteen days after the date of service.(h) Amendment.
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.
(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 of service;(j) Content of Proof 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 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) of this rule, if the same 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,
by an affidavit of the 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.
The certificate, affidavit or admission of service
mentioned in subdivision (i) of this rule must state the date, time, place and manner of
service. If the process, pleading, order of court, or other paper is served personally by a
person other than the sheriff or person designated by the law, the affidavit of service must
also state that the server is of legal age and not a party to the action nor interested in the
action, and that the server knew the person served to be the person named in the papers
served and the person intended to be served.(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 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 contain the date and place of deposit and indicate the affiant is
of legal age. 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
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 Fed.R.Civ.P. 26(f).
SOURCES: Joint Procedure Committee Minutes of May 21-22, 2009, pages _____;
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; Fed.R.Civ.P. 4.
SUPERSEDED: N.D.R.C. §§ 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, 26-0625, 28-0626, 28-0627, 28-0628, 28-0629, 28-0632, 28-3001 (1943), and N.D.C.C. Chapters 28-06, 28-06.1.
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).