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Rule 4 – Process, Attachment, Trustee Process, Arrest..

May 14, 2021 | Civil Procedure, Rhode Island

(a) Summons: Form. The summons shall bear the Signature of the clerk, be under the seal or watermark of the court (which shall be generated by the CMS), identify the court and the parties, be directed to the defendant, and state the name and address of the plaintiff’s attorney or state the name and address of the self-represented litigant except where prohibited by federal or state law. The summons shall also state the time within which the defendant must appear and defend, and shall notify the defendant that failure to do so will result in a judgment by default against the defendant for the relief demanded in the complaint. The court may allow a summons to be amended.
(b) Summons: Issuance. The summons, as provided in subdivision (a) of this rule, shall be issued in the following manner:

(1) For attorneys and self-represented litigants who are Registered Users, a summons shall be generated by the court and attached to the case following the acceptance of the complaint and all other required documents by the court. Registered Users can retrieve the summons through the Public Access Portal;
(2) For incarcerated individuals, a summons shall be generated electronically by the court and mailed to the individual upon the acceptance of the complaint and all other required documents by the court; and
(3) For attorneys who are granted a waiver pursuant to Art. X, Rule 3(c) of the Rhode Island Supreme Court Rules Governing Electronic Filing and self-represented litigants who do not elect to electronically file pursuant to Art. X, Rule 3(b):

(A) A summons shall be generated electronically by the court and handed to the attorney or self-represented litigant at the time of filing the complaint and all other required documents at the clerk’s office;
(B) If the complaint and all other required documents are mailed to the court, a summons shall be generated electronically by the court and mailed to the attorney or self-represented litigant if a self-addressed envelope is included; or
(C) If the complaint and all other required documents are mailed to the court, a summons shall be generated electronically by the court and the attorney or self-represented litigant may obtain the summons at the clerk’s office.

The plaintiff’s attorney or a self-represented litigant shall deliver to the person who is to make service the original summons upon which to make his or her return of service and a copy of the summons, complaint, Language Assistance Notice, and all other required documents for service upon the defendant. Additional summons may be issued against any defendant.

(c) By Whom Served. Service of all process shall be made by a duly authorized officer in accordance with Title 9, Chapter 5 (Writs, Summons, and Process) of the Rhode Island General Laws or by any person who is not a party and who is at least eighteen (18) years of age.
(d) Waiver of Service; Duty to Save Costs of Service; Request to Waive.

(1) 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) An individual or corporation that is subject to service under subdivision (e)(1), (e)(3), or (f), and that receives notice of an action in the manner provided in this paragraph 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. The notice and request:

(A) Shall be in writing and shall be addressed directly to the defendant, if an individual, or else to an officer or managing or general agent (or other agent authorized by appointment or law to receive service of process) of a defendant subject to service under the laws of this state;
(B) Shall be dispatched through the EFS, first-class mail, or other reliable means;
(C) Shall be accompanied by a copy of the complaint, Language Assistance Notice, and all other required documents and shall identify the court in which it has been filed;
(D) Shall inform the defendant 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 to the plaintiff, which shall be at least thirty (30) days from the date on which the request is sent, or sixty (60) days from that date if the defendant is addressed outside the United States; and
(G) If needed, shall provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing.

The most current version of the notice and request is located on the Judiciary’s website at www.courts.ri.gov under the heading of Public Resources, Forms. If a defendant located within the United States fails to comply with a request for waiver made by a plaintiff located within the United States, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure is shown.

(3) A defendant that, before being served with process, timely returns a waiver so requested is not required to serve an answer to the complaint until sixty (60) days after the date on which the request for waiver of service was sent, or ninety (90) days after that date if the defendant was addressed outside the United States.
(4) When the plaintiff files a waiver of service with the court, the action shall proceed, except as provided in paragraph (3), as if a summons, complaint, Language Assistance Notice, and all other required documents had been served at the time of filing the waiver, and no proof of service shall be required.
(5) The costs to be imposed on a defendant under paragraph (2) for failure to comply with a request to waive service of a summons shall include the costs subsequently incurred in effecting service under subdivision (e), (f), or (h), together with the costs, including a reasonable attorney’s fee, of any motion required to collect the costs of service.
(e) Summons: Personal Service. The summons, complaint, Language Assistance Notice, and all other required documents shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:

(1) Upon an individual from whom a waiver has not been obtained and filed, other than an incompetent person, by delivering a copy of the summons, complaint, Language Assistance Notice, and all other required documents 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, complaint, Language Assistance Notice, and all other required documents 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.
(2) Upon a person for whom a guardian or conservator has been appointed by serving copies of the summons, complaint, Language Assistance Notice, and all other required documents upon such guardian or conservator and upon the incompetent person in the manner provided in paragraph (1) of this subdivision.
(3) Upon a public corporation, body, or authority or a private corporation, domestic or foreign, from which a waiver of service has not been obtained and filed, by delivering a copy of the summons, complaint, Language Assistance Notice, and all other required documents to an officer, director, manager, a managing or general agent, or by leaving a copy of the summons, complaint, Language Assistance Notice, and all other required documents at an office of the corporation with a person employed therein, or by delivering a copy of the summons, complaint, Language Assistance Notice, and all other required documents 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.
(4) Upon the state by delivering a copy of the summons, complaint, Language Assistance Notice, and all other required documents to the attorney general or an assistant attorney general.
(f) Service Outside State Within the United States; Personal Jurisdiction. When an individual or a foreign corporation is subject to the jurisdiction of the courts of the state, service of process may be made outside the state as follows:

(1) Upon an individual by delivery of a copy of the summons, complaint, Language Assistance Notice, and all other required documents to the individual personally by any disinterested person, or by mailing a copy of the summons, complaint, and Language Assistance Notice to the individual by registered or certified mail, return receipt requested, or by express or overnight carrier with a signed receipt of delivery, or by any other method ordered by the court to give such individual notice of the action and sufficient time to prepare any defense thereto.
(2) Upon a foreign corporation by delivery of a copy of the summons, complaint, Language Assistance Notice, and all other required documents by any disinterested person to the president, secretary, or treasurer of such corporation or to any agent or attorney for service of process designated by the corporation in the state of incorporation, or by mailing a copy of the summons, complaint, Language Assistance Notice, and all other required documents to any such officer or agent or to the corporation at its business address designated in the state of incorporation by registered or certified mail, return receipt requested, or by any other method ordered by the court to give such corporation notice of the action and sufficient time to prepare any defense thereto.
(g) Service Upon Individuals in a Foreign Country. Unless otherwise provided by state or federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effected in a place not within the United States:

(1) By any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;
(2) If there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice:

(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;
(B) As directed by the foreign authority in response to a letter interrogatory or letter of request; or
(C) Unless prohibited by the law of the foreign country, by:

(i) Delivery to the individual personally of a copy of the summons, complaint, and Language Assistance Notice; or
(ii) 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
(3) By other means not prohibited by international agreement as may be directed by the court.
(h) Service Outside the State in Certain Actions. Where service cannot with due diligence be made personally within the state, service of the summons, complaint, Language Assistance Notice, and all other required documents may be made outside the state in the manner provided by subdivisions (f) and (g) of this rule in the following cases:

(1) Where an interest of a person in property or credits within the state has been brought before the court by attachment or trustee process; or
(2) Where a pleading demands a judgment that a person be excluded from a vested or contingent interest in or lien upon specific real or personal property within the state; or that such an interest or lien of any party be enforced, regulated, defined, determined, or limited.
(i) Service by Publication. Whenever in an action described in subdivision (h) of this rule complete service cannot with due diligence be made by another prescribed method, the court shall order service by publication of a notice of the action in one or more newspapers in such form and for such length of time as the court shall direct. If a statute expressly provides for service of process by publication, publication shall be in the form and manner provided by such statute.
(j) Proof of Service. If service is not waived, 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 to the plaintiff’s attorney or a self-represented litigant. If service is made other than by a duly authorized officer in accordance with Title 9, Chapter 5 (Writs, Summons, and Process) of the Rhode Island General Laws, that person shall make affidavit thereof. A copy of any return receipt received in connection therewith shall be filed by the plaintiff’s attorney or a self-represented litigant when returned. The plaintiff’s attorney or a self-represented litigant shall, within the time during which the person served must respond to the process, file the proof of service with the court. Failure to make proof of service does not affect the validity of the service.
(k) 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.
(l) Summons: Time Limit for Service. If service of the summons, complaint, Language Assistance Notice, and all other required documents is not made upon a defendant within one hundred and twenty (120) days after the commencement of the action the court upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. This subdivision does not apply to service in a foreign country pursuant to subdivision (g).
(m) Attachment and Trustee Process.

(1)Availability of Remedies. In connection with the commencement of any action under these rules, attachment, including trustee process, shall be available to the extent and in the manner provided by law.
(2)Writ of Attachment: Form.

(A) Bear the s ignature of the clerk, be under the seal or watermark of the court, contain the name of the court, the names and residences of the parties and the trustee, if any, and the date of the commencement of the action; and
(B) Be directed to a duly authorized officer in accordance with Title 9, Chapter 5 (Writs, Summons, and Process) of the Rhode Island General Laws and command them to attach the goods or estate of the defendant to the value of the amount of the plaintiff’s demand for judgment, together with a reasonable allowance for interest and costs, and to make due return of their doings thereon.

The most current version of the writ of attachment is located on the Judiciary’s website at www.courts.ri.gov under the heading of Public Resources, Forms.

(3)Writ of Attachment: Issuance. The writ of attachment shall be filled out by the plaintiff’s attorney or a self-represented litigant as provided in paragraph (2) of this subdivision, and shall be submitted to the court with a motion for its issuance. The motion shall be granted only upon a showing that there is a probability of a judgment being rendered in favor of the plaintiff and that there is a need for furnishing the plaintiff security in the amount sought for satisfaction of such judgment, together with interest and costs. A motion hereunder shall not be granted ex parte. Security may be required in connection with issuance of any writ of attachment. A surety upon a bond or undertaking hereunder shall be subject to the provisions of Rule 65(c).
(4)Writ of Attachment: Service. The plaintiff’s attorney or a self-represented litigant shall deliver to the officer making service a copy of the proposed writ of attachment together with a copy of the motion for its issuance and the notice of hearing thereof. When the summons, complaint, and Language Assistance Notice are served upon the defendant as provided in subdivisions (d) through (i) of this rule, the defendant shall also be served with a copy of the proposed writ of attachment and of the motion for its issuance with the notice of hearing thereof. An attachment made after service of the summons, complaint, and Language Assistance Notice shall be made as provided in paragraph (6) of this subdivision.
(5)Attachment on Counterclaim, Cross-Claim, or Third-Party Complaint. Attachment may be utilized by a party bringing a counterclaim, a cross-claim, or a third-party complaint in the same manner as upon an original claim.
(6)Subsequent Attachment. After service of the summons, complaint, and Language Assistance Notice upon the defendant, attachment shall be available to the extent and in the manner provided by law, shall follow the form prescribed in paragraph (2) of this subdivision, and shall be issued in accordance with paragraph (3) of this subdivision. All papers shall be served upon the defendant in the manner provided for service of process under subdivisions (d) through (i) of this rule unless the defendant has appeared in the action, in which case service shall be made as provided in Rule 5(b).
(7)Proof of Service. Upon service of a writ of attachment and copy thereof, the person making the service shall make the proof of service as provided in subdivision (j) of this rule.
(n) Arrest.

(1) Availability of Remedy. In connection with the commencement of any action under these rules, a writ of arrest shall be available to the extent and in the manner provided by law.
(2) Form and Service. The writ of arrest shall be obtained and filled out in the same manner as a writ of attachment, shall be accompanied by such affidavit as may be required by law, and shall be submitted to the court with a motion for its issuance. An order of issuance shall be indorsed on the writ by the court. Service of such writ shall be accompanied by service upon the defendant of a copy of the summons, complaint, Language Assistance Notice, and all other required documents, and return proof of service shall be made in the same manner as proof of service on a writ of attachment. The most current version of the writ of arrest is located on the Judiciary’s website at www.courts.ri.gov under the heading of Public Resources, Forms.
(3) Subsequent Writ of Arrest. After service of the summons, complaint, Language Assistance Notice, and all other required documents upon the defendant a writ of arrest shall be available to the extent and in the manner provided by law and shall be issued and served as provided in paragraph (2) of this subdivision.
(4) Ne Exeat. An order of arrest may be entered when the plaintiff has demanded and would be entitled to a judgment requiring the performance of an act, the neglect or refusal to perform which would be punishable by the court as a contempt, and where the defendant is not a resident of the state or is about to depart therefrom, by reason of which nonresidence or departure there is danger that such judgment or order will be rendered ineffectual.

R.I. Super. Ct. R. Civ. P. 4

Last amended effective January 29, 2016.