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Rule 4 – Process [Effective until May 1, 2021]

May 14, 2021 | Civil Procedure, Utah

(a) Signing of summons. The summons must be signed and issued by the plaintiff or the plaintiff’s attorney. Separate summonses may be signed and issued.
(b) Time of service. Unless the summons and complaint are accepted, a copy of the summons and complaint in an action commenced under Rule 3(a)(1), must be served no later than 120 days after the complaint is filed, unless the court orders a different period under Rule 6. If the summons and complaint are not timely served, the action against the unserved defendant will be dismissed, without prejudice on motion of any party or on the court’s own initiative.
(c) Contents of summons.

(c)(1) The summons must:

(c)(1)(A) contain the name and address of the court, the names of the parties to the action, and the county in which it is brought;
(c)(1)(B) be directed to the defendant;
(c)(1)(C) state the name, address and telephone number of the plaintiff’s attorney, if any, and otherwise the plaintiff’s address and telephone number;
(c)(1)(D) state the time within which the defendant is required to answer the complaint in writing;
(c)(1)(E) notify the defendant that in case of failure to answer in writing, judgment by default will be entered against the defendant;
(c)(1)(F) state either that the complaint is on file with the court or that the complaint will be filed with the court within 10 days after service.
(c)(2) If the action is commenced under Rule 3(a)(2), the summons must also:

(c)(2)(A) state that the defendant need not answer if the complaint is not filed within 10 days after service; and
(c)(2)(B) state the telephone number of the clerk of the court where the defendant may call at least 14 days after service to determine if the complaint has been filed.
(c)(3) If service is by publication, the summons must also briefly state the subject matter and the sum of money or other relief demanded, and that the complaint is on file with the court.
(d) Methods of Service. The summons and complaint may be served in any state or judicial district of the United States. Unless service is accepted, service of the summons and complaint must be by one of the following methods:

(d)(1) Personal service. The summons and complaint may be served by any person 18 years of age or older at the time of service and not a party to the action or a party’s attorney. If the person to be served refuses to accept a copy of the summons and complaint, service is sufficient if the person serving them states the name of the process and offers to deliver them. Personal service must be made as follows:

(d)(1)(A) Upon any individual other than one covered by paragraphs (d)(1)(B), (d)(1)(C) or (d)(1)(D), by delivering a copy of the summons and complaint to the individual personally, or by leaving them at the individual’s dwelling house or usual place of abode with a person of suitable age and discretion who resides there, or by delivering them to an agent authorized by appointment or by law to receive process;
(d)(1)(B) Upon a minor under 14 years old by delivering a copy of the summons and complaint to the minor and also to the minor’s father, mother, or guardian or, if none can be found within the state, then to any person having the care and control of the minor, or with whom the minor resides, or by whom the minor is employed;
(d)(1)(C) Upon an individual judicially declared to be incapacitated, of unsound mind, or incapable of conducting the person’s individual’s own affairs, by delivering a copy of the summons and complaint to the individual and to the guardian or conservator of the individual if one has been appointed; the individual’s legal representative if one has been appointed, and, in the absence of a guardian, conservator, or legal representative, to the individual, if any, who has care, custody, or control of the individual;
(d)(1)(D) Upon an individual incarcerated or committed at a facility operated by the state or any of its political subdivisions, by delivering a copy of the summons and complaint to the person who has the care, custody, or control of the individual, or to that person’s designee or to the guardian or conservator of the individual if one has been appointed. The person to whom the summons and complaint are delivered must promptly deliver them to the individual;
(d)(1)(E) Upon a corporation not otherwise provided for in this rule, a limited liability company, a partnership, or an unincorporated association subject to suit under a common name, by delivering a copy of the summons and complaint to an officer, a managing or general agent, or other agent authorized by appointment or law to receive process and by also mailing a copy of the summons and complaint to the defendant, if the agent is one authorized by statute to receive process and the statute so requires. If no officer or agent can be found within the state, and the defendant has, or advertises or holds itself out as having, a place of business within the state or elsewhere, or does business within this state or elsewhere, then upon the person in charge of the place of business;
(d)(1)(F) Upon an incorporated city or town, by delivering a copy of the summons and complaint as required by statute, or in the absence of a controlling statute, to the recorder;
(d)(1)(G) Upon a county, by delivering a copy of the summons and complaint as required by statute, or in the absence of a controlling statute, to the county clerk;
(d)(1)(H) Upon a school district or board of education, by delivering a copy of the summons and complaint as required by statute, or in the absence of a controlling statute, to the superintendent or administrator of the board;
(d)(1)(I) Upon an irrigation or drainage district, by delivering a copy of the summons and complaint as required by statute, or in the absence of a controlling statute, to the president or secretary of its board;
(d)(1)(J) Upon the state of Utah or its department or agency by delivering a copy of the summons and complaint to the attorney general and any other person or agency required by statute to be served; and
(d)(1)(K) Upon a public board, commission or body, by delivering a copy of the summons and complaint as required by statute, or in the absence of a controlling statute, to any member of its governing board, or to its executive employee or secretary.
(d)(2) Service by mail or commercial courier service.

(d)(2)(A) The summons and complaint may be served upon an individual other than one covered by paragraphs (d)(1)(B) or (d)(1)(C) by mail or commercial courier service in any state or judicial district of the United States provided the defendant signs a document indicating receipt.
(d)(2)(B) The summons and complaint may be served upon an entity covered by paragraphs (d)(1)(E) through (d)(1)(I) by mail or commercial courier service in any state or judicial district of the United States provided defendant’s agent authorized by appointment or by law to receive service of process signs a document indicating receipt.
(d)(2)(C) Service by mail or commercial courier service shall be complete on the date the receipt is signed as provided by this rule.
(d)(3) Acceptance of service.

(d)(3)(A)Duty to avoid expenses. All parties have a duty to avoid unnecessary expenses of serving the summons and complaint.
(d)(3)(B) Acceptance of service by party. Unless the person to be served is a minor under 14 years old or an individual judicially declared to be incapacitated, of unsound mind, or incapable of conducting the individual’s own affairs, a party may accept service of a summons and complaint by signing a document that acknowledges receipt of the summons and complaint.
(d)(3)(C) Acceptance of service by attorney for party. An attorney may accept service of a summons and complaint on behalf of the attorney’s client by signing a document that acknowledges receipt of the summons and complaint.
(d)(3)(D) Effect of acceptance, proof of acceptance. A person who accepts service of the summons and complaint retains all defenses and objections, except for adequacy of service. Service is effective on the date of the acceptance. Filing the acceptance of service with the court constitutes proof of service under Rule 4(e).
(d)(4) Service in a foreign country. Service in a foreign country must be made as follows:

(d)(4)(A) 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;
(d)(4)(B) 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:

(d)(4)(B)(i) 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;
(d)(4)(B)(ii) as directed by the foreign authority in response to a letter of request issued by the court; or
(d)(4)(B)(iii) unless prohibited by the law of the foreign country, by delivering a copy of the summons and the complaint to the individual personally or by any form of mail requiring a signed receipt, addressed and dispatched by the clerk of the court to the party to be served; or
(d)(4)(C) by other means not prohibited by international agreement as may be directed by the court.
(d)(5) Other service.

(d)(5)(A) If the identity or whereabouts of the person to be served are unknown and cannot be ascertained through reasonable diligence, if service upon all of the individual parties is impracticable under the circumstances, or if there is good cause to believe that the person to be served is avoiding service, the party seeking service may file a motion to allow service by some other means. An affidavit or declaration supporting the motion must set forth the efforts made to identify, locate, and serve the party, or the circumstances that make it impracticable to serve all of the individual parties.
(d)(5)(B) If the motion is granted, the court will order service of the complaint and summons by means reasonably calculated, under all the circumstances, to apprise the named parties of the action. The court’s order must also specify the content of the process to be served and the event upon which service is complete. Unless service is by publication, a copy of the court’s order must be served with the process specified by the court.
(d)(5)(C) If the summons is required to be published, the court, upon the request of the party applying for service by other means, must designate a newspaper of general circulation in the county in which publication is required.
(e) Proof of Service.

(e)(1) The person effecting service must file proof of service stating the date, place, and manner of service, including a copy of the summons. If service is made by a person other than by an attorney, sheriff, constable, United States Marshal, or by the sheriff’s, constable’s or marshal’s deputy, the proof of service must be by affidavit unsworn declaration as described in Title 78B, Chapter 18a, Uniform Unsworn Declarations Act.
(e)(2) Proof of service in a foreign country must be made as prescribed in these rules for service within this state, or by the law of the foreign country, or by order of the court.
(e)(3) When service is made pursuant to paragraph (d)(4)(C), proof of service must include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court.
(e)(4) Failure to file proof of service does not affect the validity of the service. The court may allow proof of service to be amended.

Utah. R. Civ. P. 4

Amended effective November 1, 2016; amended effective May 8, 2018.

Advisory Committee Notes

2016 Amendments

Paragraph (d)(3) contemplates delivery and acceptance of the summons and complaint by various methods, including electronic delivery and signature. Elimination of the express procedure for seeking waiver of service under paragraph (f) does not eliminate the parties’ ability to agree to accept service under paragraph (d)(3).

Rule 4 constitutes a substantial change from prior practice. The rule modernizes and simplifies procedure relating to service of process. Although this rule and Rule 3 retain the ten-day summons procedure for commencement of actions, this rule endeavors to make practice under the ten-day summons provision more consistent with practice in actions commenced by the filing of a complaint. The rule retains portions of prior Rule 4, adopts portions of the present federal Rule 4, and adopts entirely new language in other areas. The rule eliminates the statement (appearing in paragraph (m) of the prior rule) that all writs and process may be served by any constable of the court. In the committee’s view, this rule does not properly deal with the question of who may serve types of process other than the summons and complaint. In recommending the elimination of paragraph (m), the committee did not intend to change the law governing eligibility to serve such other process.

Paragraph (a). This paragraph eliminates the prior rule’s reference to the issuance of summonses. See paragraph (b). Otherwise the paragraph is identical to the former paragraph (a).

Paragraph (b). This paragraph, a substantial change from the prior rule, requires that in an action commenced under Rule 3(a)(1), the summons, together with a copy of the complaint, must be served within 120 days of the filing of the complaint. The time period was borrowed from Rule 4(j), Federal Rules of Civil Procedure.

Paragraph (c). This paragraph makes minor revisions to the corresponding paragraph of the prior rule. In addition to data historically required to appear in the summons, the address of the court and information concerning the plaintiff or plaintiff’s attorney are also required.

Paragraph (d). In prescribing the persons who may serve process, this paragraph eliminates the prior rule’s distinction between in-state and out-of-state service. The paragraph is consistent with other changes in the rule designed to simplify and unify practice for in-state and out-of-state service. In order to be eligible to serve a summons or complaint, persons who are not sheriffs or other law enforcement personnel must be at least 18 years of age at the time of service. For eligibility to make service in a foreign country, see paragraph (d)(3). Subparagraph (d)(1)(A) presents the general rule for personal service on individuals who are not infants, incompetent, or incarcerated. Subparagraph (B) deals with service on infants and subparagraph (C) with service on incompetent persons. Subparagraphs (A), (B) and (C) are patterned after Rule 4(e), Federal Rules of Civil Procedure. Subparagraph (D) deals with service on persons who are incarcerated or committed to the custody of a state institution. Subparagraph (E) deals with service on business entities. Subparagraphs (F) through (I) change and modernize service on political subdivisions of the state. Subparagraphs (J) and (K) provide for service on the state and its departments, agencies, boards and commissions with only minor changes from the prior rule. Subparagraph (d)(2) adds a provision for service by mail or commercial courier service within any judicial district of the United States. The term “mail” refers to services provided by the United States Postal Service. The term “commercial courier service” refers to businesses that provide for the delivery of documents. Examples of “commercial courier service” include Federal Express and United Parcel Service. Methods of service by mail or commercial courier service must provide for a document indicating receipt. Subparagraphs (A) and (B) specify who must sign the document indicting receipt. For service under Subparagraph (d)(2) to be effective, the court must be clearly convinced that the proper person signed the document indicating receipt. Infants or incompetent persons may not be served by mail or commercial courier service. Subparagraph (C) details when service by mail or commercial courier service is complete.

Paragraph (d)(3). This paragraph provides several alternative means by which service must be made in foreign countries and provides for proof of such service.

Paragraph (d)(4). This paragraph replaces most of paragraph (f) of the prior rule. It is designed to permit alternative means of service where the identity or whereabouts of the person to be served is unknown, where personal service is impracticable, or where a party avoids personal service. Under the circumstances identified in the rule, this paragraph permits the court to fashion means of service reasonably calculated to apprise the parties of the pendency of the action. Use of this provision is not limited to actions traditionally considered in rem or quasi in rem. See Carlson v. Bos, 740 P.2d 1269, 1272 (Utah 1987). The present rule eliminates specific mention of service by telegraph or telephone (in paragraph (1) of the prior rule) since such service could be ordered under this paragraph if appropriate. The court’s order of substituted service must specify the content of service and the event or events as of which service will be deemed complete. A copy of the order must itself be served so that the party served will be able to determine the sufficiency of service and the time as of which his or her response is due.

Paragraph (e). This paragraph replaces paragraph (g) in the prior rule. It requires proof of service to be filed “promptly” and in any event before a responsive pleading is due. The rule eliminates failure to file proof of service as a basis for challenging the validity of service. The rule contains specific requirements for proof of service depending upon who serves and what method of service is used. If the summons and complaint are served by mail or commercial courier service, subparagraph (1) requires the receipt signed by defendant or defendant’s agent to be included in the proof of service.

Paragraph (f) adds an option for a plaintiff to request a defendant to waive service. This provision is similar to federal Rule (4)(d). The defendant is required to return the waiver of service within 20 days (30 days for a defendant outside the United States) from the date the request for waiver is sent. The rule grants a defendant who waives service additional time to file a response to the complaint. A defendant who does not return the request for waiver of service will be assessed plaintiff’s actual costs in effecting service under other provisions of this rule.