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Rule 4 – Process

May 14, 2021 | Civil Procedure, South Carolina

(a) Summons: Issuance. The summons shall be issued by plaintiff or plaintiff’s attorney. Copies of the original summons shall be served upon each defendant.
(b) Same: Form. The summons shall be signed by the plaintiff or his attorney, contain the name of the State and county, the name of the court, the file number of the action, and the names of the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, if any, otherwise the plaintiff’s address, and the time within which these rules require the defendant to appear and defend, and shall notify him that in case of his failure to do so judgment by default will be rendered against him for the relief demanded in the complaint.
(c) By Whom Served. Service of summons may be made by the sheriff, his deputy, or by any other person not less than eighteen (18) years of age, not an attorney in or a party to the action. Service of all other process shall be made by the sheriff or his deputy or any other duly constituted law enforcement officer or by any person designated by the court who is not less than eighteen (18) years of age and not an attorney in or a party to the action, except that a subpoena may be served as provided in Rule 45.
(d) Summons: Personal Service. The summons and complaint must be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Voluntary appearance by defendant is equivalent to personal service; and written notice of appearance by a party or his attorney shall be effective upon mailing, or may be served as provided in this rule. Service shall be made as follows:

(d)(1) Individuals. Upon an individual other than a minor under the age of 14 years or an incompetent person, by delivering a copy of the summons and complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy to an agent authorized by appointment or by law to receive service of process.
(d)(2) Minors, Incompetents and Persons Confined. Upon a minor under the age of 14 years, a person judicially declared incapable of conducting his own affairs, or an incompetent person by delivering a copy of the summons and complaint to such minor, or incompetent personally and also a copy to (a) the guardian or committee of such person, or if there be none such within the State upon (b) a parent or other person having the care and control of such person, or (c) any competent person with whom he resides or (d) in whose service he is employed. If the individual upon whom service is made is a minor between the ages of 14 and 18, who lives with a parent or guardian, a copy of the summons and complaint shall likewise be served upon said parent or guardian, if said parent or guardian resides within the State. Service on imprisoned persons or persons confined in a state hospital or similar institution, in or out of this State, shall be made by delivering a copy of the summons and complaint to the confined person personally; and service shall be made by the sheriff of the county in which the person is imprisoned or confined. In cases of persons imprisoned, and patients in a state hospital or similar institution, personal service of process may be made by the superintendent of the institution or by the director of the prison system or by assistants duly designated by the superintendent or the director in writing for the purpose of making service of process, instead of the sheriff. The superintendent or the director or their designated assistants shall not be entitled to any costs therefore. Service on confined or imprisoned persons shall also conform to the provisions of § 15-9-510, S.C. Code, 1976.
(d)(3) Corporations and Partnerships. Upon a corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.
(d)(4) State of South Carolina.

(A) When State a Party. Upon the State of South Carolina by delivering a copy of the summons and complaint to the Attorney General, or when another official is designated to be served by the statute permitting such action by delivering a copy of the summons and complaint to that official and sending a copy of the summons and complaint by registered or certified mail to the Attorney General at Columbia.
(B) When Unconstitutionality of Statute Is Asserted. In any action attacking the Constitutionality of a State statute when the State, officer or agency is not made a party, a copy of the summons and complaint shall be sent by registered or certified mail to the Attorney General.
(d)(5) State Officer or Agency. Upon an officer or agency of the State by delivering a copy of the summons and complaint to such officer or agency and by sending a copy of the summons and complaint by registered or certified mail to the Attorney General at Columbia. If the agency is a corporation the copy shall be delivered as provided in paragraph (3) of this subdivision of this rule.
(d)(6) Governmental Subdivision. Upon a municipal corporation, county or other governmental or political subdivision subject to suit, by delivering a copy of the summons and complaint to the chief executive officer or clerk thereof, or by serving the summons and complaint in the manner prescribed by statute for the service of summons and complaint or any like process upon any such defendant.
(d)(7) Statutory Service. Service upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule is also sufficient if the summons and complaint are served in the manner prescribed by statute.
(d)(8) Service by Certified Mail. Service of a summons and complaint upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule may be made by the plaintiff or by any person authorized to serve process pursuant to Rule 4(c), including a sheriff or his deputy, by registered or certified mail, return receipt requested and delivery restricted to the addressee. Service is effective upon the date of delivery as shown on the return receipt. Service pursuant to this paragraph shall not be the basis for the entry of a default or a judgment by default unless the record contains a return receipt showing the acceptance by the defendant. Any such default or judgment by default shall be set aside pursuant to Rule 55(c) or Rule 60(b) if the defendant demonstrates to the court that the return receipt was signed by an unauthorized person. If delivery of the process is refused or is returned undelivered, service shall be made as otherwise provided by these rules.
(d)(9) Service by Commercial Delivery Service. Service of a summons and complaint upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule may be made by the plaintiff or by any person authorized to serve process pursuant to Rule 4(c) by a commercial delivery service which meets the requirements to be considered a designated delivery service in accordance with 26 U.S.C. § 7502(f)(2). Service is effective upon the date of delivery as shown in the delivery record of the commercial delivery service. Service pursuant to this paragraph shall not be the basis for the entry of a default or a judgment by default unless the record contains a delivery record showing the acceptance by the defendant which includes an original signature or electronic image of the signature of the person served. Any such default or judgment by default shall be set aside pursuant to Rule 55(c) or Rule 60(b) if the defendant demonstrates to the court that the delivery receipt was signed by an unauthorized person. If delivery of the process is refused or is returned undelivered, service shall be made as otherwise provided by these rules.
(e) Same: Other Service. Whenever a statute or an order of court provides for service of a summons and complaint or of a notice, or an order upon a party not an inhabitant of or found within the State, service shall be made under the circumstances and in the manner prescribed by the statute, rule, or order.
(f) Territorial Limits of Effective Service. All process other than a subpoena may be served anywhere within the territorial limits of the State, and, when a statute so provides, beyond the territorial limits of the State. A subpoena may be served within the territorial limits provided in Rule 45.
(g) Proof and Return. The person serving the process shall make proof of service thereof promptly and deliver it to the officer or person who issued same. If served by the sheriff or his deputy, he shall make proof of service by his certificate. If served by any other person, he shall make affidavit thereof. If served by publication, the printer or publisher shall make an affidavit thereof, and an affidavit of mailing shall be made by the party or his attorney if mailing of process is permitted or required by law. Failure to make proof of service does not affect the validity of the service. The proof of service shall state the date, time and place of such service and, if known, the name and address of the person actually served at the address of such person, and if not known, then the date, time and place of service and a description of the person actually served. If service was by mail, the person serving process shall show in his proof of service the date and place of mailing, and attach a copy of the return receipt or returned envelope when received by him showing whether the mailing was accepted, refused, or otherwise returned. If the mailing was refused, the return shall also make proof of any further service on the defendant pursuant to paragraph (8) of subdivision (d) of this rule. The return along with the receipt or envelope and any other proof shall be promptly filed by the clerk with the pleadings and become a part of the record. If service was by commercial delivery service, the person initiating the service of process shall make an affidavit identifying the process or other documents served and shall attach to the affidavit a delivery record of the commercial delivery service which shall contain the date, time, and place of delivery, the name of the person served, and include an original signature or electronic image of the signature of the person served. The affidavit and delivery record and any other proof shall be promptly filed by the clerk with the pleadings and become a part of the record.
(h) Proof of Service Without the State. When the service is made out of the State the proof of such service may be made, if within the United States, by affidavit before:

(1) Any person in this State authorized to make an affidavit;
(2) A commissioner of deeds for this State;
(3) A notary public who shall affix thereto his official seal; or
(4) A clerk of a court of record who shall certify the same by his official seal; and,
(5) If made without the limits of the United States, before a consul, vice-consul or consular agent of the United States who shall use in his certificate his official seal.
(i) Amendment. At any time in its discretion and upon terms as it deems just, the court may, by written order, 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.
(j) Acceptance of Service. No other proof of service shall be required when acceptance of service is acknowledged in writing and signed by the person served or his attorney, and delivered to the person making service. The acknowledgement shall state the place and date service is accepted.

S.c. R. Civ. P. 4

Last amended by Order dated January 31, 2013, effective immediately.

This Rule 4(a) differs from the Federal Rule by continuing the present State practice of the plaintiff or his attorney issuing the summons, rather than having it issued by the Clerk of Court. The second sentence requires only copies of the original summons to be served with the complaint on each defendant. Rule 4(b) is substantially identical to the Federal Rule, being modified only to conform to State practice as set out in Rule 4(a). The first sentence of Rule 4(c) continues present State practice. The second sentence makes more definite the requirement of Code §15-9-1030 that an official person must serve all other process such as rules and orders, except subpoenas. Rule 4(d) conforms to present State and Federal Practice, and states specifically, as does Code §15-9-70, that voluntary appearance is equivalent to personal service. It also preserves Circuit Rule 17 as to notice of appearance.

Note to 1986 Amendment:

Rule 4(c), as originally adopted, could be construed to broaden the definition of “process” and unduly restrict those who could serve process and other orders. These amendments conform to prior practice which permitted other law enforcement officials, and those appointed by the court to serve process. Orders which are not necessary to establish jurisdiction of person or property, including temporary restraining orders, are not required to be served by the sheriff unless ordered by the court. The age requirement is changed to conform to similar language in Rule 45(c).

Rules 4(d)(1) through 4(d)(8) conform to the present State practice and the Federal practice, which refers matters of service of process generally to local State practice. Rule 4(d)(1) preserves the requirements of Code §15-9-520.

Rule 4(d)(2) preserves and conforms to present practice under Code §§15-9-480 and 15-9-490. Service on persons confined in State penal or mental facilities will continue to conform also to Code §§15-9-500 and 15-9-510.

Note to 1986 Amendment:

In Rule 4(d)(2), the reference to Sec. 15-9-500 is deleted because that provision has been repealed.

Note to 1995 Amendment:

Rule 4(d)(2) is amended to add a provision for the service of the summons and complaint on persons confined in a prison or state hospital. The language is drawn from S.C. Code Ann. §15-9-500 (1976) (repealed) which governed this situation prior to the adoption of the Rules of Civil Procedure in 1985.

This rule 4(d)(3) conforms to both the Federal Rule and preserves and supplements Code §§ 15-9-210 through 15-9-330. Rules 4(d)(7) and 4(d)(8) preserve other forms of statutory service on particular classes of defendants, such as non-resident motorists.

These Rules 4(d)(4) through 4(d)(6) conform to the Federal Rules and clarify State practice concerning service on the State, its officers or agencies, and on political subdivisions.

Rule 4(d)(7) conforms to the Federal Rule, and preserves State statutory requirements as to service on particular individuals or corporations, partnerships and unincorporated associations. Rule 4(d)(8) is the new Federal Rule permitting service of summons and complaint by registered or certified mail.

(3) This catch-all provision is the same as the Federal Rule, and is necessary to cover unusual cases, principally when a court orders service on a person or party.

The phrase “in lieu of summons” is deleted from Rule 4(e) as originally adopted to avoid the implication that an action can be commenced other than by service of summons and complaint.

This Rule 4(f) modifies the Federal Rule to cover service outside the State.

This Rule 4(g) is a restated version of Code §15-9-80 and present Circuit Rule 5. The final sentence conforms to the new Federal Rule on service by mail, as well as Rule 4(d)(8).

Note to 1994 Amendment:

This amendment to Rule 4(g) deletes “of and” following the word “envelope” to make the sentence read correctly.

Rule 4(h) replaces Code §15-9-90, in the same language, and follows the Federal Rule. Rule 4(i) is same as Federal Rule and Code §15-9-100.

This Rule 4(j) is the same as the Federal Rule and follows State practice.

Note to 2013 Amendment:

Rule 4(d)(9) authorizes service of process to be made by a qualifying commercial delivery service and is similar to service by registered or certified mail.

Note to 2013 Amendment:

This amendment to Rule 4(g) details the proof required when a party serves process utilizing a commercial delivery service.