Advisory Commission Comment [2016].

4:01(1): Rule 4.01(1) previously required the trial court clerk, upon the filing of the complaint, to “forthwith issue the required summons and cause it, with necessary copies of the complaint and summons to be delivered for service to any person authorized to serve process.” Subdivision (1) is amended by substituting the word “promptly” for the word “forthwith.” This change is intended to emphasize that the clerk must issue the summons contemporaneously with, or soon after, the filing of the complaint. Because subdivision (1) requires the clerk to “promptly” issue the summons and deliver it for service, the clerk is not permitted to delay issuing the summons (or delivering it for service) at the request of the plaintiff or plaintiff’s counsel.

4.01(3): Subdivision (3) previously provided: “If a plaintiff or counsel for plaintiff (including third-party plaintiffs) intentionally causes delay of prompt issuance of a summons or prompt service of a summons, filing of the complaint (or third-party complaint) is ineffective.” Because the meaning of the word “ineffective” was not clear, subdivision (3) is amended to provide that, under the specific circumstances covered by the subdivision, the filing of the complaint “will not toll any applicable statutes of limitation or repose.” The underlying rationale for subdivision (3) is that a person or entity named as a defendant in a complaint is entitled to learn without undue delay that the person or entity has been sued; although good-faith efforts to serve the defendant can necessarily take some time, subdivision (3) means that the plaintiff or plaintiff’s counsel cannot intentionally delay the issuance or service of process for tactical reasons.

NOTE: For the Advisory Commission Comments, please refer to Rule 4.09.