Advisory Note – July 2018

The amendments to Rule 4, together with amendments to Rules 3, 5(b), 11, and 101 of the Maine Rules of Civil Procedure, is part of a package of simultaneous amendments to require parties to civil actions who are represented by attorneys to serve pleadings and other papers electronically upon one another or by delivering copies pursuant to Rule 5(b)(1) following service of the summons and complaint under Rule 4. Parties who are not represented by an attorney may opt in to Electronic Service.

A more detailed description of Electronic Service and the procedures for complying with its requirements is stated in the Advisory Note to Rule 5.

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Advisory Note – November 2011

Service of process amendments adopted as part of the Model Registered Agents Act have removed any obligation of the Secretary of State to act as default agent for service of process. See 5 M.R.S. §113. This amendment to Rule 4(d)(8) recognizes that change. It also adds a reference to Rule 4(g) as the default service choice to seek approval for an alternative means of service if service cannot be accomplished pursuant to subdivision (d)(8).

Advisory Committee Note July 1, 2010

Rule 4 has been amended to reflect the concerns expressed by the Law Court in Gaeth v. Deacon 2009 ME 9, 964 A.2d 621, that service by alternative means, including publication, afford due process to the person to be served in accordance with the Maine and United States Constitutions. In the course of that opinion the Court also addressed the limits of service by print publication in the electronic age.

The Constitution does not require any particular means of service of process, only that the method selected be reasonably calculated to provide actual notice and an opportunity to respond. Lewien v. Cohen, 432 A.2d 800, 804-05 (Me. 1981) (citing, inter alia, Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950)). Service of process serves the dual purposes of giving adequate notice of the pendency of an action, and providing the court with personal jurisdiction over the party properly served. Gaeth, 2009 ME 9, ¶ 20, 964 A.2d at 626 (citing Brown v. Thaler, 2005 ME 75, ¶ 10, 880 A.2d 1113, 1116). The allowable means for serving process are governed primarily by court rule. 14 M.R.S. §701. Presently, service by publication may be ordered when the defendant is an individual residing either within, Rule 4(d)(1), or outside, Rule 4(e) & (f)(1), the state, or when a person is a party to a Family Division action brought pursuant to Chapter XIII of these Rules, Rule 4(f)(2).

These amendments group together all forms of service that require a court order and, upon motion supported by affidavit that the party has been unable to effect service by any other means, that no other means of effecting service are practicable and that service by the method requested is reasonably calculated to provide actual notice of the suit, allow for service to be made:

(1) by leaving a copy of the summons and complaint at the defendant’s dwelling house or usual place of abode [presently codified at Rule 4(d)(1) ]; or

(2) by publication; or

(3) by other alternative means, including electronic means. The amendment makes clear that a court has the authority, in proper circumstances, to consider a request seeking to use an individual’s usual place of “virtual abode,” which might include Internet web sites with means of contact, email access, social networking sites, or any other alternative avenues where it is reasonably certain to provide a person with actual notice of the suit.

The motion for service by alternate means must be supported by a draft order making the necessary findings and specifying the proposed method of alternative service.

Before a party can obtain an order allowing service by any alternate means, that party must first demonstrate that he or she has exhausted all reasonable attempts to make service in one of the other ways prescribed by Rule 4 (or by applicable statute) that are designed to provide actual notice of the action to the party to be served. Whether attempts at locating a party are reasonable will of necessity depend on the situation; likewise, whether a search is limited to one jurisdiction or many may depend on the nature of the parties and claims. Within the framework of any given set of facts, a party seeking an order approving service by publication or other alternate means may seek to show which of the following actions s/he has taken in attempting to serve the party: checked publicly available databases (including computer databases) such as tax records, voting rolls, criminal history records, credit records, telephone directories, divorce or death records, utility records, post office records, and motor vehicle registry records in the jurisdiction where the defendant is most likely to be found. In addition to demonstrating that he has made a reasonable search of available public data, a party seeking an order for publication or service by alternate means should also satisfy the court that he or she has made reasonable efforts to locate the current address of the party to be served by checking private sources: known relatives, former employers, former educational institutions, and former neighbors. Once the party seeking the order for publication or service by alternate means has shown, through affidavit, that he or she has demonstrated due diligence and exhausted all reasonable efforts to provide actual notice of the action to the party to be served, the court must still fashion an order which is reasonably calculated to provide actual notice of the pending proceeding.

The amended rule, consistent with Gaeth, recognizes that service by publication in a newspaper should be a last resort, used only after the party has exhausted other means more likely to achieve notice in this day and age. When considering an order for service by publication a court may potentially exclude the county where the suit is pending and/or where the plaintiff resides and instead focus upon the county or municipality (which may not even be within the State of Maine) where newspaper publication is most likely to provide actual notice to the defendant or to his family. Even if service by publication is permitted, the court may still require that notice be attempted or that notice of the publication be provided to the party to be served through other alternative means, including regular mail, certified mail or electronic mail sent both to the party to be served and even conceivably to relatives, employers, or educational institutions recently attended by the party.

Advisory Note July 1, 2009

The amendment to Rule 4(f) changes only the heading of paragraph 2 to recognize the Rule’s applicability to Family Division Actions under Chapter XIII.

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Advisory Committee’s Notes 1981

Rule 4(e) is amended to make the rule more reflective of the present state of the law. As originally promulgated, the rule envisioned only two situations in which personal service might be had outside the state: service upon a domiciliary and service under the long-arm statute, 14 M.R.S.A. §704-A. Accordingly, the original rule limited such service expressly to cases involving domiciliaries and cases within the scope of the long-arm statute’s language of submission to the jurisdiction. Plainly, there are other situations where out-of-state service is constitutionally valid, as well as appropriate-e.g., jurisdiction by consent, or jurisdiction under jurisdictional provisions other than the long-arm statute, such as those in the Maine Business Corporations Act, 13-A M.R.S.A. §306, or the Probate Code, 18-A M.R.S.A. §§4 – 301, 3 – 602, 5 – 208.

Rule 4(f) is amended to conform the rule to the effect of the decision in Shaffer v. Heitner, 433 U.S. 186 (1977). Related amendments are being made in Rules 4A(f) and 4B(h).

In Shaffer, the Court overruled a line of cases founded on Pennoyer v. Neff, 95 U.S. 714 (1878), and exemplified by Harris v. Balk, 198 U.S. 215 (1905), which had held that, by the attachment of the tangible or intangible property of a nonresident defendant within the state, the courts of a state acquired jurisdiction to render a judgment subjecting that property to a claim against the defendant, regardless of the connection of the claim with the property or the state. Rule 4(f) as originally promulgated provided a means of service in three such situations. See 1 Field, McKusick, and Wroth, Maine Civil Practice 4.11, 4A.6 (2d ed. 1970). Shaffer holds that this form of “quasi in rem” jurisdiction violates due process, and that a state can exercise jurisdiction over the property of a nonresident defendant only if he has sufficient contacts with the state to sustain jurisdiction of his person in the action.

Rule 4(f) in its original form was in effect a grant of jurisdiction over the property or status of the defendant in the three situations therein provided for, without regard to the contacts of the defendant. The effect of the present amendment is to limit service by mail to situations where jurisdiction is otherwise proper–that is, borrowing the language of Rule 4(e) as simultaneously amended, where defendant is “subject to the jurisdiction of the courts of the state.” Thus the mere presence of property, or a pending adjudication of marital status, within the state will no longer of itself be a basis for such service. In such cases, however, where the defendant has sufficient contacts with Maine related to the transaction in suit, so that service under the long-arm statute and Rule 4(e) would be proper, service may be had outside the state by mail in the two situations provided in amended Rule 4(f):

(1) Where title or other interest in real or personal property is involved; (2) where the action is for divorce or annulment. Ordinarily, in these situations, there will be contacts. See Shaffer v. Heitner, supra, at 207-08.

Advisory Committee’s Notes 1985

Rule 4(d)(8)(a) is amended to eliminate the requirement that, when service is made upon a domestic private corporation by delivery to the Secretary of State, the copy of the process sent to the corporation by registered or certified mail be sent return receipt requested, with instructions to deliver to addressee only. Since postal regulations require that an individual be named for delivery to addressee only, and there may be no current officer or director of a corporation that still has assets, the requirement may frustrate service. In this situation, the mailing is simply a backup to service upon the Secretary of State as statutory agent of the corporation and is not required by the statute. Therefore, elimination of the addressee-only requirement will cause no real diminution in the notice afforded. See 13-A M.R.S.A. §305(2).

Advisory Committee’s Notes 1987

Rule 4(c) is amended to eliminate constables from the enumeration of those generally empowered to serve civil process. By statute, a constable’s power to serve process is limited to his own town or “an adjoining plantation.” 14 M.R.S.A. §703. The rule as originally promulgated carried the implication that a constable could serve process anywhere within the state. Under the amended rule, a constable may still serve process in a proper case as an “other person authorized by law.”

Advisory Committee’s Notes 1990

Rule 4(d)(14) is added to make clear that service of process may properly be made under the Maine Rules of Civil Procedure upon one of the other 49 states of the United States in an appropriate case when that state requires service to be made upon it in a manner not otherwise provided in Rule 4(d). Service under this provision may be made outside Maine in accordance with Rule 4(e). The provision of Rule 4(j) for service upon any party in a foreign country by means appropriate under the law of that country would reach a result similar to that under Rule 4(d)(14) if a foreign country were a party.

Advisory Committee’s Notes 1991

Rule 4(c), providing that service of process is to be made by a sheriff, a deputy, another person authorized by law, or a person especially appointed by the court, is replaced by new Rule 4(c). Under the new provisions, service of the summons and complaint may be made by mail with written acknowledgement of receipt. Simultaneous amendments to Rules 4A(c) and 4B(c) make clear that writs of attachment and summonses on trustee process must be served by a sheriff or deputy.

The change is intended to make service both more efficient and more economical. In many counties, delays occur because of the backlog of civil process in sheriffs’ offices. In addition, the costs of service, which may be significant in cases involving multiple parties, can be reduced by making service by mail freely available to Maine litigants. Such service is now available in the federal and many state courts, and in Maine, under Rule 4(f), may be used against out-of-state defendants. Since the party serving the summons and complaint bears the burden of establishing that service has been made and the risk of loss if service is ineffective, it may be assumed that parties will continue to resort to service by officer in difficult cases.

Rule 4(c)(1) provides that in the first instance service of summons and complaint may be made by the party or any person acting for the party by ordinary first-class mail. The sender must include with the summons and complaint two copies of a form of notice designed to alert the recipient to the procedure and an acknowledgement of receipt of service to be returned by the recipient in a postage-paid envelope provided for that purpose. If the sender does not receive the acknowledgement within twenty days of the mailing of the summons and complaint, the sender has the option of making service in hand under paragraph (2) of the subdivision. A form of notice and acknowledgement is being added to the Appendix of Forms as Form 3.20 by simultaneous amendment. Note that the acknowledgement must be received within 20 days of the mailing date, while the time for answer under Rule 12(a) is still 20 days from the date of service. In this case, the date on which the defendant mails the acknowledgement, which constitutes acceptance of this form of service, is the date of service for purposes of the time for answer.

Rule 4(c)(2) carries forward the language of former Rule 4(c) permitting service by a sheriff, a deputy, or “other person authorized by law,” which includes constables and police and other governmental officers specifically authorized by statute. See e.g.12 M.R.S.A. §6025 (marine patrol officers); 34-A M.R.S.A. §3231(H) (warden of the state prison). The clause in the present rule referring to the subpoena is deleted because Rule 4(c) will now apply only to service of summons and complaint. The provisions of the present rule for special appointment for service remain in effect.

Rule 4(h) is amended to conform to the provisions of new Rule 4(c) by providing for return of service when service is made by mail.

Advisory Committee’s Notes 1992

Rule 4(c)(1) is amended to clarify the intent of the rule. As promulgated in 1990, Rule 4(c)(1) provided that, if no acknowledgement of service by mail is received by plaintiff within 20 days, service may be made by an officer or specially appointed person under Rule 4(c)(2). The amendment, substituting “shall” for “may,” follows Federal Rule 4(c)(2)(C)(ii), upon which the Maine rule was based. The intention is to make clear that the original service by mail is invalid if no acknowledgment is received, and that service under paragraph (2) or (3) must be employed if jurisdiction of the defendant is to be obtained.

Rule 4(c)(3) is added to clarify the relationship between service by ordinary mail with acknowledgement under Rule 4(c)(1) and other methods. Service under Rule 4(c)(1) is an option that may be used initially against any defendant in lieu of the special service methods permitted or required by Rules 4(d)-(g), (j), and applicable statutes. Plaintiff may, however, choose at the outset to bypass Rule 4(c)(1) and make service initially by a method specifically provided by rule or statute for the type of defendant in question, which may be personal service or another method such as registered or certified mail. If service is attempted under Rule 4(c)(1) but fails for lack of acknowledgement, plaintiff must resort to either personal service or another method as appropriate in order to obtain jurisdiction.

Advisory Committee’s Notes 1993

Rule 4(d)(10) is amended for conformity to recent statutory changes.

When Rule 4(d)(10) was adopted in 1967, Maine was among those states which did not recognize the “entity” theory of partnership. Thus, an action against a partnership on a partnership liability could be brought only against the individual partners. Rule 4(d)(10) was intended to simplify service of process in such an action by eliminating the necessity of personal service upon every partner named as a defendant in favor of service upon one partner or a general or managing agent of the partnership. See M.R.Civ.P. 4(d)(10) advisory committee’s note, 1 Field, McKusick & Wroth, Maine Civil Practice 53-55 (2d ed. 1970); Thurston v. Continental Casualty Co., 567 A.2d 922, 923-24 (Me. 1989).

Subsequently, the Legislature has provided specifically that both general and limited partnerships may sue and be sued in the partnership name. 31 M.R.S.A. § §160-A, 290-A, enacted by P.L. 1987, ch. 92. Accordingly, the present amendment expressly extends the service provisions of Rule 4(d)(10) to “a partnership subject to suit in the partnership name.” Service upon such a partnership may be had “in any action,” whether or not the claim can be said to have arisen “out of partnership business.”

The rule continues to provide a means for service upon partners individually in a claim that does arise out of partnership business. This provision thus permits service against members of a partnership established in a state which does not recognize the entity theory. Service under the rule will also support jurisdiction against all partners as to their personal liability under the general law of partnership for claims that cannot be satisfied out of the partnership property. Note that the present rule is one of service of process only. While partners are not indispensable parties in an action on a partnership liability, they and the partnership are bound by a judgment only if formally named and joined as parties to the action. See 1 Field, McKusick & Wroth, supra §4.4. The service provisions of the rule apply whether the partnership and partners are joined or are sued in separate actions.

In clause (a) of the rule, the amendment limits service to “general” partners. Limited partners, who under the Revised Uniform Limited Partnership Act, 31 M.R.S.A. § §401 – 527, are not individually liable for the obligations of the partnership and do not participate in control of the partnership business, do not have sufficient stake or responsibility to assure that service upon them will be adequate notice to general partners. See 31 M.R.S.A. §433; cf. id. §409(1).

Clause (b) of the rule incorporates as an alternative means of service upon a limited partnership the provisions of the Revised Uniform Limited Partnership Act for service upon a statutory agent. Thus, under 31 M.R.S.A. §409(l)(B), (C), service may be had upon the registered agent or any liquidating trustee of the partnership. If no registered agent has been appointed, or can be found, then the Secretary of State, by virtue of 31 M.R.S.A. §409(2), is deemed the agent of the partnership for service of process. Similarly, under 31 M.R.S.A. §410, the Secretary of State is deemed to be the agent for service of process upon a nonresident general partner. Similar provisions are made for service on foreign limited partnerships by 31 M.R.S.A. § §500 – 502.

The service provisions of the Revised Uniform Limited Partnership Act contain savings for other methods of service. See 31 M.R.S.A. §409(3) (domestic limited partnership); §500(4) (foreign limited partnership authorized to do business in the state); §501(2) (foreign limited partnership not authorized to do business in the state). While there is no similar saving in 31 M.R.S.A. §410 for service upon nonresident general partners of domestic limited partnerships, the methods therein prescribed are not in terms exclusive of service under Rule 4(d)(10)(a).

Advisory Committee’s Notes May 1, 2000

In subdivision (1) and subdivision (2), the term “minor” is substituted for the term “infant.”

Advisory Committee’s Notes December 4, 2001

Rule 4(f) is amended to permit service by registered or certified mail in action arising under Rule 80(a) regardless of whether the person to be served is in or outside the state. The former rule permitted such service only upon persons outside the state and only in actions for divorce or annulment. The intent of the amendment is to afford litigants, many of whom are pro se, an easy and inexpensive means of serving initial process.

Annotations:

Rule 4(c): Service of state agency appeal. Town of Ogunquit v. Dept. of Public Safety, 2001 ME 47, 5-14.

Rule 4(d)(1): Service, Actual Notice. Peoples Heritage Savings Bank v. Pease, 2002 ME 82, 13-14.

Rule 4(d)(1): LaFosse v. Champagne -2000 ME 81, 9.

Rule 4(h): Service of summons not proof of service giving jurisdiction. Christensen-Towne v. Dorey, 2002 ME 121, 4.

Advisory Note – July 2018

The amendment to Rule 4(d)(1) corrects an oversight in a package of amendments promulgated effective July 1, 2018. See 2018 Me. Rules 08. The amended language requires that a notice regarding Electronic Service be served upon an individual other than a minor or an incompetent person along with a copy of the summons and complaint.