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Rule 4 – Summons

May 14, 2021 | Civil Procedure, Wyoming

(a) Contents. A summons must:

(1) name the court and the parties;
(2) be directed to the defendant;
(3) state the name and address of the plaintiff’s attorney or-if unrepresented-of the plaintiff;
(4) state the time within which the defendant must appear and defend;
(5) notify the defendant that a failure to appear and defend may result in a default judgment against the defendant for the relief demanded in the complaint;
(6) be signed by the clerk; and
(7) bear the court’s seal.
(b) Issuance. On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summons-or a copy of a summons that is addressed to multiple defendants-must be issued for each defendant to be served.
(c) By Whom Served. Except as otherwise ordered by the court, process may be served:

(1) By any person who is at least 18 years old and not a party to the action;
(2) At the request of the party causing it to be issued, by the sheriff of the county where the service is made or sheriff’s designee, or by a United States marshal or marshal’s designee;
(3) In the event service is made by a person other than a sheriff or U.S. marshal, the amount of costs assessed therefor, if any, against any adverse party shall be within the discretion of the court.
(d) Personal Service. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary.
(e) Serving an Individual Within the United States. An individual other than a person under 14 years of age or an incompetent person may be served within the United States:

(1) by delivering a copy of the summons and of the complaint to the individual personally,
(2) by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person over the age of 14 years then residing therein,
(3) at the defendant’s usual place of business with an employee of the defendant then in charge of such place of business, or
(4) 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.
(f) Serving an Individual in a Foreign Country. An individual – other than a person under 14 years of age or an incompetent person – may be served at a place not within the United States:

(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;
(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

(A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction;
(B) as the foreign authority directs in response to a letter rogatory or letter of request; or
(C) unless prohibited by the foreign country’s law, by:

(i) delivering a copy of the summons and of the complaint to the individual personally; or
(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or
(3) by other means not prohibited by international agreement, as the court orders.
(g) Serving a Person Under 14 years of Age or an Incompetent Person. An individual under 14 years of age or an incompetent person may be served within the United States by serving a copy of the summons and of the complaint upon the guardian or, if no guardian has been appointed in this state, then upon the person having legal custody and control or upon a guardian ad litem. An individual under 14 years of age or an incompetent person who is not within the United States must be served in the manner prescribed by Rule 4(f)(2)(A), (f)(2)(B), or (f)(3).
(h) Serving a Corporation, Partnership, or Association.

(1) Service upon a partnership, or other unincorporated association, within the United States shall be made:

(A) by delivery of copies to one or more of the partners or associates, or a managing or general agent thereof, or agent for process, or
(B) by leaving same at the usual place of business of such defendant with any employee then in charge thereof.
(2) Service upon a corporation within the United States shall be made:

(A) by delivery of copies to any officer, manager, general agent, or agent for process, or
(B) If no such officer, manager or agent can be found in the county in which the action is brought such copies may be delivered to any agent or employee found in such county.
(C) If such delivery be to a person other than an officer, manager, general agent or agent for process, the clerk, at least 20 days before default is entered, shall mail copies to the corporation by registered or certified mail and marked “restricted delivery” with return receipt requested, at its last known address.
(3) Service upon a partnership, other unincorporated association, or corporation not within the United States shall be made in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).
(i) Serving a Department or Agency of the State, or a Municipal or Other Public Corporation. Service upon a department or agency of the state, a municipal or other public corporation shall be made by delivering a copy of the summons and of the complaint to the chief executive officer thereof, or to its secretary, clerk, person in charge of its principal office or place of business, or any member of its governing body, or as otherwise provided by statute.
(j) Serving the Secretary of State. Service upon the secretary of state, as agent for a party shall be made when and in the manner authorized by statute.
(k) Service by Publication. Service by publication may be had where specifically provided for by statute, and in the following cases:

(1) When the defendant resides out of the state, or the defendant’s residence cannot be ascertained, and the action is:

(A) For the recovery of real property or of an estate or interest therein;
(B) For the partition of real property;
(C) For the sale of real property under a mortgage, lien or other encumbrance or charge;
(D) To compel specific performance of a contract of sale of real estate;
(2) In actions to establish or set aside a will, where the defendant resides out of the state, or the defendant’s residence cannot be ascertained;
(3) In actions in which it is sought by a provisional remedy to take, or appropriate in any way, the property of the defendant, when:

(A) the defendant is a foreign corporation, or
(B) a nonresident of this state, or
(C) the defendant’s place of residence cannot be ascertained,
(D) and in actions against a corporation incorporated under the laws of this state, which has failed to elect officers, or to appoint an agent, upon whom service of summons can be made as provided by these rules and which has no place of doing business in this state;
(4) In actions which relate to, or the subject of which is real or personal property in this state, when

(A) a defendant has or claims a lien thereon, or an actual or contingent interest therein or the relief demanded consists wholly or partly in excluding the defendant from any interest therein, and
(B) the defendant is a nonresident of the state, or a dissolved domestic corporation which has no trustee for creditors and stockholders, who resides at a known address in Wyoming, or
(C) the defendant is a domestic corporation which has failed to elect officers or appoint other representatives upon whom service of summons can be made as provided by these rules, or to appoint an agent as provided by statute, and which has no place of doing business in this state, or
(D) the defendant is a domestic corporation, the certificate of incorporation of which has been forfeited pursuant to law and which has no trustee for creditors and stockholders who resides at a known address in Wyoming, or
(E) the defendant is a foreign corporation, or
(F) the defendant’s place of residence cannot be ascertained;
(5) In actions against personal representatives, conservators, or guardians, when the defendant has given bond as such in this state, but at the time of the commencement of the action is a nonresident of the state, or the defendant’s place of residence cannot be ascertained;
(6) In actions where the defendant is a resident of this state, but has departed from the county of residence with the intent to delay or defraud the defendant’s creditors, or to avoid the service of process, or keeps concealed with like intent;
(7) When an appellee has no attorney of record in this state, and is a nonresident of and is absent from the state, or has left the state to avoid the service of notice or process, or the appellee keeps concealed so that notice or process cannot be served;
(8) In an action or proceeding under Rule 60, to modify or vacate a judgment after term of court, or to impeach a judgment or order for fraud, or to obtain an order of satisfaction thereof, when a defendant is a nonresident of the state or the defendant’s residence cannot be ascertained;
(9) In suits for divorce, alimony, custody, visitation, support, to affirm or declare a marriage void, or the modification of any decree therefor entered in such suit, when the defendant is a nonresident of the state, or the defendant’s residence cannot be ascertained, or the defendant keeps concealed in order to avoid service of process;
(10) In actions for adoption or for the termination of parental rights;
(11) In all actions or proceedings which involve or relate to the waters, or right to appropriate the waters of the natural streams, springs, lakes, or other collections of still water within the boundaries of the state, or which involve or relate to the priority of appropriations of such waters including appeals from the determination of the state board of control, and in all actions or proceedings which involve or relate to the ownership of means of conveying or transporting water situated wholly or partly within this state, when the defendant or any of the defendants are nonresidents of the state or the defendant’s residence or their residence cannot be ascertained.
(l) Requirements for Service by Publication.

(1) Affidavit Required. Before service by publication can be made, an affidavit of the party, or the party’s agent or attorney, must be filed stating:

(A) that service of a summons cannot be made within this state, on the defendant to be served by publication, and
(B) stating the defendant’s address, if known, or that the defendant’s address is unknown and cannot with reasonable diligence be ascertained, and
(C) detailing the efforts made to obtain an address, and
(D) that the case is one of those mentioned in subdivision (k), and
(E) when such affidavit is filed, the party may proceed to make service by publication.
(2) Publication and Notice to Clerk.

(A) Address in publication. In any case in which service by publication is made when the address of a defendant is known, it must be stated in the publication.
(B) Notice to and from clerk. Immediately after the first publication the party making the service shall deliver to the clerk copies of the publication, and the clerk shall mail a copy to each defendant whose name and address is known by registered or certified mail and marked “Restricted Delivery” with return receipt requested, directed to the defendant’s address named therein, and make an entry thereof on the appearance docket.
(C) Affidavit at time of hearing. In all cases in which a defendant is served by publication of notice and there has been no delivery of the notice mailed to the defendant by the clerk, the party who makes the service, or the party’s agent or attorney, at the time of the hearing and prior to entry of judgment, shall make and file an affidavit stating

(i) the address of such defendant as then known to the affiant, or if unknown,
(ii) that the affiant has been unable to ascertain the same with the exercise of reasonable diligence, and
(iii) detailing the efforts made to obtain an address.

Such additional notice, if any, shall then be given as may be directed by the court.

(m) Publication of Notice. The publication must be made by the clerk for four consecutive weeks in a newspaper published:

(1) in the county where the complaint is filed; or
(2) if there is no newspaper published in the county, then in a newspaper published in this state, and of general circulation in such county; and
(3) if publication is made in a daily newspaper, one insertion a week shall be sufficient; and
(4) publication must contain

(A) a summary statement of the object and prayer of the complaint,
(B) mention the court wherein it is filed,
(C) notify the person or persons to be served when they are required to answer, and
(D) notify the person or persons to be served that judgment by default may be rendered against them if they fail to appear.
(n) When Service by Publication is Complete; Proof.

(1) Completion. Service by publication shall be deemed complete at the date of the last publication, when made in the manner and for the time prescribed in the preceding sections; and
(2) Proof. Service by publication shall be proved by affidavit.
(3) For purposes of Rule 4(u), when service is made by publication, a defendant shall be deemed served on the date of the first publication.
(o) Service by Publication upon Unknown Persons. When an heir, devisee, or legatee of a deceased person, or a bondholder, lienholder or other person claiming an interest in the subject matter of the action is a necessary party, and it appears by affidavit that the person’s name and address are unknown to the party making service, proceedings against the person may be had by designating the person as an unknown heir, devisee or legatee of a named decedent or defendant, or in other cases as an unknown claimant, and service by publication may be had as provided in these rules for cases in which the names of the defendants are known.
(p) Publication in Another County. When it is provided by rule or statute that a notice shall be published in a newspaper, and no such paper is published in the county, or if such paper is published there and the publisher refuses, on tender of the publisher’s usual charge for a similar notice, to insert the same in the publisher’s newspaper, then a publication in a newspaper of general circulation in the county shall be sufficient.
(q) Costs of Publication. The lawful rates for any legal notice published in any qualified newspaper in this state in connection with or incidental to any cause or proceeding in any court of record in this state shall become a part of the court costs in such action or proceeding, which shall be paid to the clerk of the court in which such action or proceeding is pending by the party causing such notice to be published and finally assessed as the court may direct.
(r) Personal Service Outside the State; Service by Registered or Certified Mail. In all cases where service by publication can be made under these rules, or where a Wyoming statute permits service outside the state, the plaintiff may obtain service without publication by:

(1) Personal Service Outside the State. By delivery to the defendant within the United States of copies of the summons and complaint.
(2) Service by Registered or Certified Mail. The clerk shall send by registered or certified mail:

(A) Upon the request of any party
(B) a copy of the complaint and summons
(C) addressed to the party to be served at the address within the United States given in the affidavit required under subdivision (l) of this rule.
(D) The mail shall be sent marked “Restricted Delivery,” requesting a return receipt signed by the addressee or the addressee’s agent who has been specifically authorized in writing by a form acceptable to, and deposited with, the postal authorities.
(E) When such return receipt is received signed by the addressee or the addressee’s agent the clerk shall file the same and enter a certificate in the cause showing the making of such service.
(s) Proof of Service.

(1) In General. The person serving the process shall make proof of service thereof to the court promptly and within the time during which the person served must respond to the process.
(2) Proof of Service Within the United States. Proof of service of process within the United States shall be made as follows:

(A) If served by a Wyoming sheriff, undersheriff or deputy, by a certificate with a statement as to date, place and manner of service, except that a special deputy appointed for the sole purpose of making service shall make proof by the special deputy’s affidavit containing such statement;
(B) If by any other person, by the person’s affidavit of proof of service with a statement as to date, place and manner of service;
(C) If by registered or certified mail, by the certificate of the clerk showing the date of the mailing and the date the clerk received the return receipt;
(D) If by publication, by the affidavit of publication together with the certificate of the clerk as to the mailing of copies where required;
(E) By the written admission, acceptance or waiver of service by the person to be served, duly acknowledged.
(3) Proof of Service Outside the United States. Proof of service of process outside the United States shall be made as follows:

(A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or
(B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee.
(4) Failure to Prove Service. Failure to make proof of service does not affect the validity of the service.
(t) Amendment. At any time in its discretion and upon such terms as it deems just, the court may permit a summons or proof of service to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.
(u) Waiving Service.

(1) Requesting a Waiver. An individual, corporation, partnership or other unincorporated association that is subject to service under subdivision 4(e), (f), or (h) 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 must:

(A) be in writing and shall be addressed directly to the defendant, if an individual, or else to an officer, manager, general agent, or agent for process, if a corporation, or else to one or more of the partners or associates, or a managing or general agent, or agent for process, if a partnership or other unincorporated association;
(B) be sent through first-class mail or other reliable means;
(C) be accompanied by a copy of the complaint and shall identify the court in which it has been filed;
(D) inform the defendant of the consequences of compliance and of a failure to comply with the request;
(E) set forth the date on which the request is sent;
(F) 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 60 days from that date if the defendant is addressed outside the United States; and
(G) provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing.
(2) Failure to Waive. 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) Time to Answer After a Waiver. 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 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 the United States.
(4) Results of Filing a Waiver. 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 and complaint had been served at the time of signing the waiver, and no proof of service shall be required.
(5) Jurisdiction and Venue 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.
(6) Costs. 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, together with the costs, including a reasonable attorney’s fee, of any motion required to collect the costs of service.
(v) Acceptance of Service.

(1) A defendant who accepts 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) The acceptance of service shall:

(A) Be in writing;
(B) Be notarized and executed directly by the defendant or defendant’s counsel;
(C) Inform the defendant of the duty to file with the clerk and serve upon the plaintiff’s attorney an answer to the complaint, or a motion under Rule 12, within 20 days after the time of signing the acceptance; and
(D) Be filed by the party requesting the acceptance of service.
(3) When an acceptance of service is filed with the court, the action shall proceed as if a summons and complaint had been served at the time of signing the acceptance, and no proof of service shall be required.
(4) Nothing in this Rule 4(v) shall compel any defendant to accept service of a summons under this Rule 4(v).
(w) Time Limit for Service. If a defendant is not served within 90 days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (w) does not apply to service in a foreign country under Rule 4(f).
(x) Costs. Any cost of publication or mailing under this rule shall be borne by the party seeking it.

Wyo. R. Prac. & P. 4

Adopted effective March 1, 2017