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Rule 5 – Service and Filing of Pleading and Other Papers

May 13, 2021 | Civil Procedure, Indiana

(A) Service: When Required. Unless otherwise provided by these rules or an order of the court, each party and special judge, if any, shall be served with:

(1) every order required by its terms to be served;
(2) every pleading subsequent to the original complaint;
(3) every written motion except one which may be heard ex parte;
(4) every brief submitted to the trial court;
(5) every paper relating to discovery required to be served upon a party; and
(6) every written notice, appearance, demand, offer of judgment, designation of record on appeal, or similar paper.

No service need be made on parties in default for failure to appear, except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided by service of summons in Rule 4.

(B) Service: How made. Whenever a party is represented by an attorney of record, service shall be made upon such attorney unless service upon the party himself is ordered by the court. Service upon the attorney or party shall be made by delivering or mailing a copy of the papers to him at his last known address.

(1) Delivery. Delivery of a copy within this rule means

(a) offering or tendering it to the attorney or party and stating the nature of the papers being served. Refusal to accept an offered or tendered document is a waiver of any objection to the sufficiency or adequacy of service of that document;
(b) leaving it at his office with a clerk or other person in charge thereof, or if there is no one in charge, leaving it in a conspicuous place therein; or
(c) if the office is closed, by leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein; or,
(d) leaving it at some other suitable place, selected by the attorney upon whom service is being made, pursuant to duly promulgated local rule.
(2) Service by Mail. If service is made by mail, the papers shall be deposited in the United States mail addressed to the person on whom they are being served, with postage prepaid. Service shall be deemed complete upon mailing. Proof of service of all papers permitted to be mailed may be made by written acknowledgment of service, by affidavit of the person who mailed the papers, or by certificate of an attorney. It shall be the duty of attorneys when entering their appearance in a cause or when filing pleadings or papers therein, to have noted in the Chronological Case Summary or said pleadings or papers so filed the address and telephone number of their office. Service by delivery or by mail at such address shall be deemed sufficient and complete.
(C) Certificate of Service. An attorney or unrepresented party tendering a document to the Clerk for filing shall certify that service has been made, list the parties served, and specify the date and means of service. The certificate of service shall be placed at the end of the document and shall not be separately filed. The separate filing of a certificate of service, however, shall not be grounds for rejecting a document for filing. The Clerk may permit documents to be filed without a certificate of service but shall require prompt filing of a separate certificate of service.
(D) Same: Numerous defendants. In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order

(1) that service of the pleadings of the defendants and replies thereto need not be made as between the defendants;
(2) that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties; and
(3) that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties.

A copy of every such order shall be served upon the parties in such manner and form as the court directs.

(E) Filing.

(1) Except as otherwise provided in subparagraph (2) hereof, all pleadings and papers subsequent to the complaint which are required to be served upon a party shall be filed with the Court either before service or within a reasonable period of time thereafter.
(2) No deposition or request for discovery or response thereto under Trial Rules 27, 30, 31, 33, 34 or 36 shall be filed with the Court unless:

(a) A motion is filed pursuant to Trial Rule 26(C) or Trial Rule 37 and the original deposition or request for discovery or response thereto is necessary to enable the Court to rule; or
(b) A party desires to use the deposition or request for discovery or response thereto for evidentiary purposes at trial or in connection with a motion, and the Court, either upon its own motion or that of any party, or as a part of any pre-trial order, orders the filing of the original.
(3) Custody of original and Period of Retention:

(a) The original of a deposition shall, subject to the provisions of Trial Rule 30(E), be delivered by the reporter to the party taking it and shall be maintained by that party until filed with the Court pursuant to paragraph (2) or until the later of final judgment, agreed settlement of the litigation or all appellate rights have been exhausted.
(b) The original or any request for discovery or response thereto under Trial Rules 27, 30, 31, 33, 34 and 36 shall be maintained by the party originating the request or response until filed with the Court pursuant to paragraph (2) or until the later of final judgment, agreed settlement or all appellate rights have been exhausted.
(4) In the event it is made to appear to the satisfaction of the Court that the original of a deposition or request for discovery or response thereto cannot be filed with the Court when required, the Court may allow use of a copy instead of the original.
(5) The filing of any deposition shall constitute publication.
(F) Filing With the Court Defined. The filing of pleadings, motions, and other papers with the court as required by these rules shall be made by one of the following methods:

(1) Delivery to the clerk of the court;
(2) Sending by electronic transmission under the procedure adopted pursuant to Administrative Rule 12;
(3) Mailing to the clerk by registered, certified or express mail return receipt requested;
(4) Depositing with any third-party commercial carrier for delivery to the clerk within three (3) calendar days, cost prepaid, properly addressed;
(5) If the court so permits, filing with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk; or
(6) Electronic filing, as approved by the Division of State Court Administration pursuant to Administrative Rule 16.

Filing by registered or certified mail and by third-party commercial carrier shall be complete upon mailing or deposit.

Any party filing any paper by any method other than personal delivery to the clerk shall retain proof of filing.

(G) Confidentiality of Court Records.

(1) Court Records are accessible to the public, except as provided in Administrative Rule 9(G).
(2) Any Court Record excluded from Public Access pursuant to Administrative Rule 9(G) must be filed in accordance with Administrative Rule 9(G)(5).

Ind. R. Civ. P. 5