More Categories

Rule 5 – Service and Filing of Pleadings and Other Papers

May 14, 2021 | Civil Procedure, Vermont

(a) Service: When Required. Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless a Superior Judge otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except as provided in Rule 62(b) and except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.
(b) Same: How Made. Whenever under Rule 5(a) or 77(d) service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or party or by mailing it to the attorney or party at the attorney or party’s last known address or, if no address is known, by leaving it with the clerk of the court.

(1)Delivery. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at the attorney or party’s office with a clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at the person’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.
(2)Mailing. Mailing of a copy within this rule means: sending by ordinary first-class mail; sending by third-party commercial carrier; or, if required or permitted by paragraph 4, sending by electronic means. Service by mail or by commercial carrier is complete upon mailing or delivery to the carrier.
(3)Leaving with the Clerk. Leaving a copy with the clerk of the court within this rule means delivering or mailing the copy to the clerk by any means permitted or required for the filing of papers with the clerk under subdivision (e) of this rule.
(4)Sending by Electronic Means. For units and divisions in which the Court Administrator has not directed that electronic filing be implemented under 2020 Vermont Rule for Electronic Filing 1(d), this paragraph applies.

(A) Documents must be sent by electronic means if required by the Vermont Rules for Electronic Filing.
(B) Documents may be sent by electronic means when not required by the Vermont Rules for Electronic Filing if the sending and receiving parties agree to electronic transmission in a writing filed with the court that specifies the type of electronic transmission to be used.
(C) The sender of any document by electronic means under this rule must follow any applicable standards regarding electronic transmission of confidential documents.
(D) Any e-mail address or addresses used under subparagraph (A) or (B) must match those that the attorney or party has registered under the judiciary’s electronic filing system, and the registration information must be provided in all pleadings and other papers served or filed by the attorney or party.
(E) All attorneys and parties must immediately notify other attorneys and parties of any e-mail address change during the pendency of the action or proceeding.
(F) Service by electronic means is complete upon transmission, provided that such service is not effective if the party making service learns that the attempted service did not reach the party to be served.
(5) Service by Electronic Means. For units and divisions in which the Court Administrator has directed that electronic filing be implemented under 2020 Vermont Rule for Electronic Filing 1(d), if the 2020 Vermont Rules of Electronic Filing require a method of service for the document being filed, the filer must use that method of service and not the methods of service specified in paragraph (4).
(c) Same: Numerous Defendants. In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.
(d) Filing. All papers after the complaint required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter, except that all requests for discovery under Rules 26–34 and 36 and answers and responses thereto shall not be filed unless on order of the court or for use in the proceeding. If a paper is not to be filed, the party serving it shall file instead a certificate that each deposition has been completed and sealed pursuant to Rule 30(f) or that each request, interrogatory, answer or response has been served in accordance with this rule.
(e)Filing With the Court Defined.

(1) The filing of documents with the court as required by these rules shall be made by filing them with the clerk of the court, except that a judge may permit them to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk.
(2) Filing may be accomplished by delivery; by sending the papers by ordinary first-class mail or by third-party commercial carrier addressed to the clerk; or by sending by electronic means, if required or permitted by the 2010 or 2020 Vermont Rules for Electronic Filing or, if not required or permitted by those rules, with the court’s prior approval.
(3) Filing by mail, commercial carrier, shall not be timely unless the material filed is received within the time fixed for filing. Filing with a judge may be accomplished by any method permitted by the judge. The time of filing for an electronic filing is as specified in the 2010 or 2020 Vermont Rules for Electronic Filing.
(4) A document 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 document stating the date the document was deposited in the institution’s internal mailing system. The notarized statement establishes a presumption that the document 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. 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.
(5) Unless otherwise provided in the 2010 or 2020 Vermont Rules for Electronic Filing, the clerk shall not refuse to accept for filing any document presented for that purpose solely because it is not presented in proper form as required by these rules.
(f) Form of Papers and Documents. All original papers shall be eight and onehalf by eleven inches in size, indorsed with the name and docket number of the case, the court and county where pending, the name of the paper, and the name and address of the person or attorney filing it and shall comply with applicable format provisions of the Vermont Rules for Electronic Filing.
(g)Separation of Nonpublic Data. The filer must separate nonpublic data as required by Vermont Rule for Public Access to Court Records 7.
(h) Certificate of Service. Except as provided in any applicable provision of the 2020 Vermont Rules for Electronic Filing, every document filed with the court after the complaint, and required by this rule to be served upon a party, must be accompanied by a certificate of service. The certificate may be incorporated into the final page of the document being served, or may be on a separate form. It need not be in any special format so long as it contains all the required information. Multiple documents may be filed with one certificate of service. The certificate must meet the following requirements:

(1)Signing. The certificate must be signed by the party’s lawyer or an authorized employee of the lawyer, or by a self-represented party, subject to the obligations of Rule 11.
(2)Contents. The certificate must:

(A) certify that the document has been served upon every other party to the case;
(B) state the manner of service (mail, personal delivery, or other service authorized by this rule);
(C) state the name and address of each person or entity served; and
(D) state the date of the mailing or other means of delivery.
(3)Noncompliance. If a document that requires a certificate of service is filed without one, the judge may issue an order:

(A) suspending the running of the time for response by the other paliy or parties until the filing of a proper certificate of service,
(B) declining to act on the filing until a proper certificate is filed; or
(C) ordering that the filing will be deemed withdrawn if no certificate is filed by a date certain. The lack of a certificate of service shall not be a basis for the clerk or the judge to refuse to accept the filing, or to return the document to the filer.

V.R.C.P. 5

Amended Dec. 28, 1981, eff. March 1, 1982; Oct. 21, 1983, eff. Jan. 1, 1984; Jan. 9, 1985, eff. March 15, 1985; Feb. 22, 1996, eff. July 1, 1996; Feb. 22, 1996, eff. July 1, 1996; Oct. 25, 2000, eff. Jan. 1, 2001; Oct. 11, 2006, eff. Dec. 11, 2006; Aug. 17, 2010, eff. Oct. 1, 2010; Aug. 30, 2011, eff. Oct. 31, 2011; July 20, 2015, eff. Sept. 21, 2015; Dec. 15, 2016, eff. Feb. 20, 2017; July 14, 2017, eff. Sept. 18, 2017; amended June 13, 2018, effective August 13, 2018; amended December 10, 2019, effective March 2, 2020.

Reporter’s Notes-2020 Amendment

Rule 5(b)(4) was adopted to make the rule consistent with the 2010 version of the Vermont Rules for Electronic Filing Rules when they were adopted to implement the experimental eCabinet system of electronic filing. See Reporter’s Notes to the first 2017 Amendment to this rule. This system was implemented in civil and small claims cases in certain counties and in the Environmental Division. See Reporter’s Notes to 2020 Vermont Rules of Electronic Filing Rule 2 (list of counties, divisions, and types of cases where eCabinet is used). The eCabinet system will remain in use in those counties, divisions, and types of cases until the new case management system is rolled out in those counties and in the Environmental Division. As a result, Rule 5(b)(4) will remain in effect until that time. Once the new system has been rolled out in all places where eCabinet has been in effect, Rule 5(b)(4) will no longer apply and the 2020 Vermont Rules of Electronic Filing will govern the subject matter of this rule as specified in Rule 5(b)(5). To fully implement the transition, the language of the last sentence of Rule 5(b)(2) is moved to Rule 5(b)(4)(F) so it will not apply when eCabinet is no longer used.

New Rule 5(b)(5) provides that in units and divisions where the Court Administrator has directed that efiling commence, the 2020 Vermont Rules for Electronic Filing control the method of service.

These amendments were made necessary by the method of post-commencement service that is part of the new electronic filing system and required to be used for electronic filers by 2020 V.R.E.F. 11(d)(1) unless parties agree to a different system. Under the new electronic filing system, a filer directs the system to make service on other electronic filers, and the service consists of a notice that the filing was made and directions on how to view that filing. Under the former eCabinet system, now contained in the 2010 Vermont Rules for Electronic Filing, service on an electronic filer was by emailing a copy of the filing. Rule 5(b)(4)(A), (B), (C), (D), and (E) details that method of service.

Rule 5(e)(3) is amended to make clear that the time of filing an efiling is controlled by the applicable provision of the Vermont Rules for Electronic Filing and not by the civil rule. There is a distinction between the date of filing and the date of service when documents are efiled and notice of the filing is sent through the efiling system as required by 2020 V.R.E.F. 11(d). As noted in 2020 V.R.E.F. 5(c)(1), the date of filing is the date the filing is submitted to the efiling system. The date of service may be later because the system will not serve a document until it has been reviewed and accepted. See Reporter’s Notes to 2020 V.R.E.F. 11(b).

Rule 5(e)(5) is amended to make clear that the applicable version of the Vermont Rules for Electronic Filing controls whether an efiling can rejected.

Rule 5(f)(1) is amended to clarify that the filer must comply with the applicable version of the Vermont Rules for Electronic Filing. Rule 5(f)(2) is repealed as no longer necessary.

Rule 5(g) is amended to cross-reference to the Vermont Rules for Public Access to Court Records, which as recently amended, specifies how to file documents to conform to the substantive requirements.

Rule 5(h) is amended to provide that the necessity for a certificate of service with an electronic filing is controlled by 2020 V.R.E.F. 11(g) if it is applicable. Where service is by efilers using the efiling system, a certificate of service is no longer necessary under 2020 V.R.E.F. 11(g)(1).

Reporter’s Notes-2018 Amendment

Rule 5(e)(4) is added, and present Rule 5(e)(4) is redesignated (5), to provide a “prisoner’s mailbox” procedure for the filing of documents after the complaint in a civil action by an inmate confined in an institution. The provision is virtually identical to the simultaneously added V.R.C.P. 3(b) providing the procedure for inmate filing of a complaint. See Reporter’s Notes to that rule. 3. That Rule 25(a)(2)(C) of the Vermont Rules of Appellate procedure be added to read as follows (new matter underlined):

Reporter’s Notes-2017 Amendment

Rule 5(h), as added effective September 21,2015, is amended to clarify and make uniform the procedures under it. In some clerks’ offices it has been interpreted to (1) require a separate form for each item served, (2) require that the form be on a separate document from the items it identifies, and (3) allow court staff to return filings that lack a certificate, rather than accepting them and then having the judge determine how to handle the absence. The amendment makes clear that the certificate may be incorporated in the document filed or be on a separate page and may embrace multiple documents. Further, the amendments to paragraph (3) make clear that a document filed without a certificate should be accepted for filing, subject to compliance with the order of the judge concerning the filing of a proper certificate.

Reporter’s Notes-2017 Amendment

Rule 5 is amended to establish procedures for service and filing of documents under the rule by electronic means in all divisions and units of the superior court. The amended rule is incorporated by reference in V.R.A.P. 25(b), V.R.Cr.P. 49(b), V.R.F.P. 4.0(a)(2)(A), and V.R.E.C.P. 3, 4(a), and 5(a)(2). Conforming amendments will be made to V.R.P.P. 5. Service bye-mail was originally provided for in the 2006 amendments to the rules and eliminated in 2010 with the adoption of the Vermont Rules for Electronic Filing. It is anticipated that once the Vermont Rules for Electronic Filing become effective in all divisions and units, the rule will be amended again to conform to that change. As used in this rule, sending bye-mail attachment has the same meaning as service by electronic means. Under new Rule 5(b)(4)(A), documents must be sent by electronic means if required by the Vermont Rules for Electronic Filing.

New paragraph (4)(B) provides that in all other cases documents may be served by electronic means to the extent that the parties have agreed in writing. The writing must be filed with the court to make clear the terms of the agreement for purposes of filing under amended Rule 5(e). The requirement of a writing is consistent with the provisions of Federal Civil Rule 5(b)(2)(E). It is contemplated that counsel and parties may elect to file a “standing” consent with the court to receive service of documents by electronic means in all matters before the court, obviating the need for a multiplicity of additional written filings for each case. Provision for a “standing” consent for electronic service is also fully consistent with existing widespread practice among counsel to provide copies of case documents to other parties bye-mail. Unless required by the Vermont Rules for Electronic Filing, a party may withdraw, or qualify a “standing” consent to receive service of documents by electronic means by writing filed with the court as well.

The use of electronic transmission is subject to new subparagraph (C) requiring observation of confidentiality standards that may exist for documents in such matters as mental health proceedings or transactions recommended by the Consumer Financial Protection Bureau. New subparagraph (D) requires the use of registered e-mail addresses for service under the rule, because it is simpler and in accord with evolving practice. The current provisions for registration are found in Rule 3 of the Vermont Rules for Electronic Filing and Administrative Order No. 44. Subparagraph (E) makes clear that attorneys and parties are responsible for notifying others of changes in any e-mail address used, as required by V.R.E.F. 3(b).

Rules 5(e) and (f) are divided into numbered paragraphs for clarity. Rule 5(e)(2) is amended for conformity with new Rule 5(b)(4). In a case not governed by the Vermont Rules for Electronic Filing, documents may be filed electronically only with the court’s prior approval. New Rule 5(f)(2) makes clear that a paper served or filed electronically in compliance with this rule is a written paper or in writing for purposes of the rules. Cf. Federal Civil Rule 5(d)(3).