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Rule 3 – Commencement of Action

May 14, 2021 | Civil Procedure, Vermont

(a)In General. A civil action is commenced by filing a complaint with the court, except that in any case where attachment of real or personal property or attachment on trustee process is not to be made, or goods are not to be replevied, an action may be commenced by the service of a summons and complaint. When an action is commenced by filing, summons and complaint must be served upon the defendant within 60 days after the filing of the complaint. When an action is commenced by service, the complaint must be filed with the court within 21 days after the completion of service upon the first defendant served. If service is not timely made or the complaint is not timely filed, the action may be dismissed on motion, including motion of the court pursuant to Rule 41(b)(1), and notice, and in such case the court may in its discretion, if it shall be of the opinion that the action was vexatiously commenced, tax a reasonable attorney’s fee as costs in favor of the defendant, to be recovered of the plaintiff or plaintiff’s attorney.
(b)Complaint Filed by an Inmate Confined in an Institution.

(1) A complaint filed by an inmate confined in an institution is timely if deposited in the institution’s internal mailing system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a notarized statement accompanying the complaint stating the date the complaint was deposited in the institution’s internal mailing system. The notarized statement establishes a presumption that the complaint was deposited in the institution’s internal mailing system on the date shown in the statement. The presumption may be rebutted by documentary or other evidence.
(2) Nothing in this rule precludes other evidence of timely filing such as a postmark or an official date stamp showing the filing date of the document.

V.R.C.P. 3

Amended Dec. 11, 1980, eff. Feb. 2, 1981; Jan. 9, 1985, eff. July 1, 1986; amended Sept. 20, 2017, eff. Jan. 1, 2018; amended June 13, 2018, effective August 13, 2018.

Reporter’s Notes-2018 Amendment

Rule 3 is amended to extend its 20-day time period to 21 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.

Present Rule 3 is designated Rule 3(a), and Rule 3(b) is added to provide a “prisoner’s mailbox” procedure for the filing of a complaint in a civil action by an inmate confined in an institution. The amended rule is virtually identical to V.R.A.P. 4(f), adopted effective March 13, 2017. As stated in the Reporter’s Notes to that rule, which is similar, but not identical, to F.R.A.P. 4(c)(1), the rule

provides that deposit of a [complaint] in the internal prison mailing system can constitute timely filing and requires use of a prison “legal mail” system if available. The rule also explicitly creates a rebuttable presumption that the filing is timely if accompanied by a notarized statement showing deposit in the institution’s internal mailing system on or before the last day for filing. Paragraph [(2)] follows the federal [appellate] rule in allowing evidence of timely filing other than the notarized statement. Unlike the federal rule, the rule does not require a statement that postage has been or “is being” prepaid, nor does it give the Court discretion to allow later filing of the notarized statement.

Although most prisoner filings are not complaints, a rule governing complaints is desirable, particularly in view of issues raised by the housing of prisoners in out-of-state prisons with differing systems. Simultaneous amendments adding V.R.C.P. 5(e)(4) and V.R.A.P. 25(a)(2)(C) establish an identical procedure for inmate filing of documents after the complaint that are required to be filed by V.R.C.P. 5 and papers after the notice of appeal required to be filed by V.R.A.P. 25.