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Rule 4 – Process

May 14, 2021 | Civil Procedure, Vermont

(a)Summons: Issuance. The summons shall be filled out by the plaintiff’s attorney as provided in subdivision (b) of this rule. The plaintiff’s attorney shall deliver to the person who is to make service the original summons or a copy upon which to make a return of service and a copy of the summons and of the complaint for service upon the defendant.
(b)Same: Form. The summons shall be signed by the plaintiff’s attorney or, if the plaintiff has no attorney, by any Superior Judge or a judge or the clerk of the court to which it is returnable. It shall contain the name and address of the court and the names of the parties, be directed to the defendant, state the name and postal and e-mail addresses of the plaintiff’s attorney, and the time and manner within which these rules require the defendant to respond to the complaint, and shall notify 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. A summons shall comply with the format provisions of the 2010 or 2020 Vermont Rules for Electronic Filing, if applicable. The plaintiff must include with the summons a blank Notice of Appearance form.
(c)By Whom Served. Service of all process shall be made by a sheriff or deputy sheriff, by a constable or other person authorized by law, or by some indifferent person specially appointed for that purpose by any superior judge, or a judge of the court to which it is returnable, except that process served under subdivision (f), or a notice and request sent pursuant to subdivision (l), of this rule may be deposited in the mail by plaintiff or plaintiff’s attorney and a subpoena may be served as provided in Rule 45. Special appointments to serve process shall be made freely when substantial savings in travel fees will result.
(d)Summons: Personal Service Within the State. The summons and complaint shall be served together. Personal service within the state shall be made as follows:

(1) Upon an individual by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process, provided that if the agent is one designated by statute to receive service, such further notice as the statute requires shall be given. The court, on motion, upon a showing that service as prescribed above cannot be made with due diligence, may order service to be made by leaving a copy of the summons and of the complaint at the defendant’s dwelling house or usual place of abode, or to be made by publication pursuant to subdivision (g) of this rule, if the court deems publication to be more effective.

If the individual is an infant or incompetent person, process may be served upon the individual by one of the foregoing methods, or as follows:

(i) Upon an infant by delivering a copy of the summons and of the complaint personally (a) to the infant and (b) also to the infant’s guardian if the infant has one within the state, known to the plaintiff, and if not, then the infant’s father or mother or other person having the infant’s care or control, or with whom the infant resides, or if service cannot be made upon any of them, then as provided by order of the court.
(ii) Upon an incompetent person by delivering a copy of the summons and of the complaint personally (a) to the guardian of that person or a competent adult member of that person’s family with whom that person resides, or if that person is living in an institution, then to the director or chief executive officer of the institution, or if service cannot be made upon any of them, then as provided by order of the court and (b) unless the court otherwise orders, also to the incompetent.
(2) Upon the State of Vermont or any agency or officer thereof, by delivering a copy of the summons and of the complaint to the Attorney General or the Deputy Attorney General. Service of a copy of the complaint and written disclosure of material evidence and infonnation required to be served pursuant to 32 V.S.A. § 632(b)(3), enacted by Act No. 25 of2015, or 31 U.S.C. § 3730(b)(2). shall be by any method of delivery requiring the signature of an addressee or an agent of an addressee.
(3) Upon a county, by delivering a copy of the summons and of the complaint to the county clerk or the county treasurer.
(4) Upon a town, by delivering a copy of the summons and of the complaint to the clerk, treasurer, manager, or one of the selectmen.
(5) Upon a city, by delivering a copy of the summons and of the complaint to the clerk, treasurer, or manager.
(6) Upon any other public corporation, body, or authority, by delivering a copy of the summons and of the complaint to any officer, director, superintendent, or manager thereof.
(7) Upon a domestic or foreign private corporation, by delivering a copy of the summons and of the complaint to an officer, a director, a managing or general agent, a superintendent, or to any other agent authorized by appointment or by law to receive service of process, provided that any further notice required by a statute authorizing an agent to receive service shall also be given. For purposes of this paragraph the officers of a national bank shall include the cashier and assistant cashiers thereof. If none of the foregoing persons is present in the state, such copies may be delivered to any person in the actual employment of the corporation or to one of the stockholders, or, if no such person be found, may be left at an office or place of business of the corporation within the state.
(8) Upon a partnership or unincorporated association or joint stock company, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, a superintendent, any member thereof, or any other agent authorized by appointment or by law to receive service of process, provided that any further notice required by a statute authorizing an agent to receive service shall also be given.
(e)Personal Service Outside the State. A person whose contact or activity in the state or such contact or activity imputable to that person is sufficient to support a personal judgment against that person may be served with the summons and the complaint outside the state, in the same manner as if such service were made within the state, or in any manner in which service may be effected under the laws of the state in which the person is served. Service outside the state may be made by any person authorized to serve civil process by the laws of the place of service or by a person specially appointed to serve it.

An affidavit of the person making service shall be filed with the court, stating the time, manner, and place of service. Such service has the same force and effect as personal service within the state.

(f)Service by Mail.

(1) Where service cannot with due diligence be made personally within or outside the state, service of the summons and complaint may be made by mail upon a person described in subdivision (e) in the following cases:

(A) Where the person to be served has an interest in, title to, or right to the possession of goods, chattels, rights, credits, land, tenements, or hereditaments in the state which has been or on pending motion may be attached or secured by trustee process in the commencement of the action, or will be affected by a judgment in the action;
(B) Where the person to be served is one against whom a judgment for divorce or annulment of marriage is sought.

Such service shall be by delivery to the defendant outside the state by registered or certified mail, with restricted delivery and return receipt requested. Service by registered or certified mail under this paragraph shall be complete when the registered or certified mail is delivered and the return receipt signed or when acceptance is refused, provided that the plaintiff shall file with the court an affidavit setting forth the efforts made to obtain personal service and either the return receipt or, if acceptance was refused, an affidavit that upon notice of such refusal a copy of the summons and complaint was sent to the defendant by ordinary first class mail.

(2) When service may be made upon an officer of the state as a statutory agent for the service of process pursuant to paragraph (1), (7) or (8) of subdivision (d), service in accordance with the applicable statute may be made by mailing a copy of the summons and of the complaint by first class mail, postage prepaid, to the officer.
(g)Service by Publication.

(1)When Service May Be Made. At any time after the filing of the complaint, the court, on motion upon a showing made by verified complaint or affidavit duly filed that service cannot with due diligence be made by another prescribed method, shall order service by publication when the person to be served is one described in subdivision (e) of this rule, unless a statute provides another method of notice.
(2) Contents of Order. An order for service by publication shall include (i) a brief statement of the object of the action; (ii) if the action places in issue the title or interest of the defendant to any property, a description of any such property; and (iii) the substance of the summons prescribed by subdivision (b) of this rule. The order shall also direct its publication once a week and at least seven days apart for 2 or more successive weeks in a designated newspaper or newspapers of general circulation reasonably calculated to give notice to the defendant; and the order shall also direct the mailing to the defendant, if an address is known, of a copy of the order as published.
(3)Time of Publication; When Service Complete. The first publication of the summons shall be made within 21 days after the order is granted. Service by publication is complete on the twentv-second day after the first publication. The plaintiff shall file with the court an affidavit that publication has been made.
(h)Territorial Limits of Effective Service. All process may be served anywhere within the territorial limits of the state.
(i)Return of Service. The person serving the process shall make proof of service thereof on the original process or a paper attached thereto for that purpose, and shall forthwith return it, with that person’s fees, charges and mileage indorsed thereon, to the plaintiff’s attorney. The plaintiff’s attorney shall, within the time during which the person served must respond to the process, file the proof of service with the court. The attorney’s filing of such proof of service with the court shall constitute a representation by the attorney, subject to the obligations of Rule 11, that the copy of the complaint delivered to the officer for service was a true copy. If service is made by a person other than a sheriff or deputy sheriff or a constable authorized by law, that person shall make proof thereof by affidavit. Failure to make proof of service shall not affect the validity of the service. The officer or other person serving the process shall indorse the date of service upon the copy left with the defendant or other person. Failure to indorse the date of service shall not affect the validity of service.
(j)Amendment. At any time in its discretion and upon such terms as it deems just, the court 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.
(k)Alternative Provisions for Service in a Foreign Country.

(1)Manner. When service is to be effected upon a party in a foreign country, it is also sufficient if service of the summons and complaint is made:

(A) in the manner prescribed by the law of 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, when service in either case is reasonably calculated to give actual notice; or
(C) upon an individual, by delivery to the individual personally, and upon a corporation or partnership or association, by delivery to an officer, a managing or general agent; or
(D) by any form of mail, requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or
(E) as directed by order of the court. Service under (C) or (E) above may be made by any person who is not a party and is not less than 18 years of age or who is designated by order of the court or by the foreign court. On request, the clerk shall transmit the summons to the person or the foreign court or officer who will make the service.
(2)Return. Proof of service may be made as prescribed by subdivision (i) of this rule, or by the law of the foreign country, or by order of the court. When service is made pursuant to subparagraph (1)(D) of this subdivision, proof of service shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court.
(l)Waiver of Service; Duty to Save Costs of Service; Request to Waive.

(1)Objections Not Waived. A defendant who waives service of a summons does not thereby waive any objection to the venue or to the jurisdiction of the court over the person of the defendant.
(2)Authorization; Duty to Save Costs. When an action has been commenced by filing the complaint, and the summons and complaint may be served within or without the state by personal service under subdivisions (d) or (e) of this rule, notice may be given as provided in this subdivision instead. However, notice may not be given under this subdivision to an infant or incompetent person. A defendant who receives notice of an action in the manner provided in this subdivision has a duty to avoid unnecessary costs of serving the summons. To avoid costs, the plaintiff may notify such a defendant of the commencement of the action and request that the defendant waive service of a summons.
(3)Method. The notice and request given under this subdivision

(A) shall be in writing and shall be addressed directly to the defendant, if an individual, or else to any other person authorized under subdivision (d) of this rule to receive service of process on behalf of a defendant who is not an individual, provided that notice may not be given hereunder to a public officer who is designated by statute as an agent to receive service of process;
(B) shall be dispatched through first class mail or other reliable electronic or nonelectronic means;
(C) shall be accompanied by a copy of the complaint and shall identify the court in which it has been filed;
(D) shall inform the defendant, by means of a form conforming substantially to Forms 1B and 1C as contained in the Appendix of Forms to these rules, of the consequences of compliance and of a failure to comply with the request;
(E) shall set forth the date on which the request is sent;
(F) shall allow the defendant a reasonable time to return the waiver, which shall be at least 30 days from the date on which the request is sent, or 42 days from that date if the defendant is addressed outside any state or territory of the United States;
(G) shall provide the defendant with an extra copy of the notice and request, as well as an electronic or prepaid nonelectronic means of compliance in writing; and
(H) shall include a blank Notice of Appearance form.

If a defendant located within any state or territory of the United States fails to comply with a request for waiver made by a plaintiff located within any state or territory of the United States, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure be shown.

(4)Effect of Waiver: Time for Answer. A defendant that, before being served with process, timely returns a requested waiver signed and dated personally or by a person to whom a notice and request may be addressed under subparagraph (3)(A) is not required to serve an answer to the complaint until 60 days after the date on which the request for waiver of service was sent, or 90 days after that date if the defendant was addressed outside any state or territory of the United States.
(5)Same: Action to Proceed. When the plaintiff files a waiver of service with the court, the action shall proceed, except as provided in paragraph (4), as if a summons and complaint had been served at the time of filing the waiver, and no proof of service shall be required.
(6)Costs for Failure to Waive. The costs to be imposed on a defendant under paragraph (3) for failure to comply with a request to waive service of a summons shall include the costs subsequently incurred in effecting service under subdivision (d)-(g) or (k), together with the costs, including a reasonable attorney’s fee, of any motion required to collect the costs of service.

V.R.C.P. 4

Amended March 12, 1975, eff. April 1, 1975; Oct. 30, 1979, eff. Dec. 3, 1979; Jan. 9, 1985; April 3, 1986; Nov. 25, 1986, eff. March 1, 1987; Jan. 20, 1992, eff. March 2, 1992; Feb. 22, 1996, eff. July 1, 1996; Oct. 19, 1999, eff. Dec. 31, 1999; Aug. 17, 2010, eff. Oct. 1, 2010; Aug. 30, 2011, eff. Oct. 31, 2011; May 8, 2014, eff. July 7, 2014; July 20, 2015, eff. Sept. 21, 2015; amended July 1, 2016, eff. Sept. 12, 2016; amended Sept. 20, 2017, eff. Jan. 1, 2018; amended Dec. 10, 2019, eff. March 2, 2020.

Reporter’s Notes-2020 Amendment

Rule 4(b) is amended to clarify that its cross references are to the 2010 or 2020 Vermont Rules for Electronic filing, if either is applicable.

Reporter’s Notes -2018 Amendment

Rule 4(g)(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. Rule 4 (/)(3)(F) is amended to shorten the time for return of a waiver of service from 60 to 42 days. The existing rule allowed too much time to make this method of service feasible for timely commencement under Rule 3 in the case of a defendant outside any state or territory of the United States.

Reporter’s Notes-2016 Amendment

Rule 4(d)(2) is amended to provide a uniform, easily administered method of service of complaints and material information on the Vermont Attorney General as required by the state and federal False Claims Acts. See 32 V.S.A. § 632(b)(3); 31 U.S.C. § 3730(b)(2). The state act provides for service on the Attorney General “in accordance with the Rules of Civil Procedure.” 32 V.S.A. § 632(b)(3). F.R.C.P. 40 ) requires service on the state to be on the chief executive officer or pursuant to the state rules of civil procedure.

With the enactment of 32 V.S.A. § 632, Vermont has been added to several pending and anticipated federal qui tam suits by relators’ counsels. The most common methods of service of the complaint and material disclosures by the federal qui tam bar in other jurisdictions have been by registered or celtified mail or by private process servers. In Vermont, relators’ attorneys have agreed to accomplish service by sheriff. The provision in the rule for service “by any method of delivery requiring the signature of an addressee or an agent of an addressee” is intended to include service by registered mail, certified mail, commercial catTier, or in-hand delivery. Availability of these commonly used methods of process for both state and federal cases will obviate the need for the Attorney General’s Office to contact counsel in every case to request service by sheriff.