By Bobbie Kullman, Nelson Mullins Riley & Scarborough, LLP
There have been changes to rules regarding service and issues arising out of service due to the global pandemic and outbreak of COVID-19. Namely, USPS’s COVID-19 modifications for certified mail/return receipt and not obtaining recipients’ actual signatures. Postal workers have been writing “COVID-19” in the recipient’s signature block on the return receipt. That clearly is not compliant with Rule 4 service. During this time, it is recommended you use another avenue of service if you need a true signature from your recipient. Prompted by the pandemic, Rule 5 regarding service and filing of pleadings has been revised to allow service of orders, subsequent pleadings, discovery, motions, notices, etc. to be served via email on opposing counsel without their consent to that avenue of service. There are some exceptions and a review of the rule might be in order.
Initial service of lawsuit and basic deadlines.
Once a summons and complaint has been served on your client, you have 30 days to file an answer in state court and 21 days for federal court. Along with getting a copy of the complaint and summons that was served on your client, always ask the client if discovery requests were served as well. This should be indicated on the civil summons, but some attorneys neglect to indicate such on the summons. If discovery is served with the complaint, that will add additional deadlines. Responses to interrogatories and requests for production will have a 45-day deadline while requests for admission will have a 60-day deadline for state court matters.
If the newly received lawsuit is a state court matter, review defendants and allegations in complaint to determine possibility for removal to federal court. Diversity in citizenship (i.e. plaintiff from NC and defendant is a Texas corporation) is one of the most common requirements for removal I run across in my work. Federal question is another requirement that could allow for federal court to maintain jurisdiction over the lawsuit. If the allegations raise any complaints as to civil rights, discrimination, or other violations under federal law, the matter will be removable. Review the applicable U.S. Codes for additional details for removal.
Is service proper?
As stated above, there have been some issues with the USPS and proper service. Additionally, there are certain avenues of service you must try first prior to using other avenues of service. Under Rule 4 governing service, it states “Upon the filing of the complaint, summons shall be issued forthwith, and in any event within five days. The complaint and summons shall be delivered to some proper person for service. In this State, such proper person shall be the sheriff of the county where service is to be made or some other person duly authorized by law to serve summons.” Many attorneys like to utilize a process server right out of the gate. Technically, that’s not proper service in N.C. but many don’t raise a fuss. The use of private processors is very limited and require you first try service through the Sheriff’s Department. Three points of reference regarding this issue are:
- (1) Article: https://civil.sog.unc.edu/youve-been-served-private-process-servers-in-north-carolina/
- (2) Locklear v. Cummings, 822 S.E.2d 587, 593 (N.C. Ct. App. 2018); N. Carolina State Bar v. Hunter, 217 N.C. App. 216, 224 (2011)
- (3) Court of Appeals: Stewart v. Shipley
In order to use a process server for a summons, Rule 4(h) or Rule 4(h1) have to apply and that includes:
- (1) Officer not available/refuses/neglects to serve; or
- (2) Office returns process unexecuted.
If a person that is not named in the lawsuit accepts service for the lawsuit, ensure that person has the authority to do so. The person accepting must be over 18 y.o. and must live at the address where service is attempted. One recent problem experienced involved a husband and wife getting served at the family address. The husband accepted service for him and his wife; however, the wife no longer lived there and there was a restraining order in place that prevented them to be near each other. In this situation, the wife was not properly served.
One tidbit to remember is that we on defense have no responsibility to share the whereabouts, if known, of the Defendant to plaintiff’s counsel for service (i.e. defendant is in out-of-state drug treatment).
Another item to be noted regarding proper service is determining if a Summons/Alias & Pluries (A&P) Summonses are up-to-date and accurate. To keep a summons alive until properly served you will need to get an A&P issued no later than 90 days from the previous issuance. If your client is served with an A&P Summons, calculate the time between all dates issued to ensure timeliness of all issuances.
Statute of Limitation and Statute of Repose are always to be evaluated initially and correlate to proper service. Briefly, below are the typical years for the different statutes:
- § Statute of Limitation:
- (1) Legal Malpractice: 3 years
- (2) Libel: 1 year
- (3) Medical Malpractice: 3 years
- (4) Personal Injury: 3 years
- (5) Property Damage: 3 Years
- (6) Wrongful Death: 2 years
- (7) Product Liability PI: 2 years (w/in date of injury)
- § Statue of Repose:
- (1) Real Property: 6 years (after improvement/substantial completion or last specific act or omission of defendant, whichever is later)
- (2) Product Liability: 12 years (vehicles are from the first title. If a 2009 vehicle was actually titled in October 2008, you can run into an issue Usually goes by first purchase.
Service of Subpoenas
State subpoenas are easy to serve. You can use about any means available, including Sheriff, process server, certified mail/return receipt, and any person over 18 years of age and not a party to the lawsuit. Federal subpoenas require personal service. If you require the person’s attendance, you will need to include a check for 1-day appearance ($40) and round-trip mileage with the subpoena. One item to note when serving an out-of-state person with a federal subpoena, you need to find a location for their appearance or document production within 100-miles from where the witness resides to stay in compliance of federal rules. Tips: Any time I serve an out-of-state person with a federal subpoena for production of documents, I find a court reporter’s office near their residence to use as the location for production to comply with the 100-mile rule. Court reporting agencies are also a good resource for local process serves.
Typically, all expert deadlines are set out very specific in your scheduling order. However, occasionally the scheduling order may not specifically set out the deadline to serve your expert disclosers. In those instances, Rule 26 sets it at 90-days prior to trial. Remember, expert disclosures are considered part of discovery and are not filed.
In domesticating any subpoena, whether your assisting an out-of-state attorney in domesticating a foreign subpoena in N.C. or having a N.C. subpoena domesticated in another state, you must first determine if the foreign state is part of The Uniform Interstate Deposition and Discover Act (UIDDA). N.C. has adopted the UIDDA and makes the process much easier to conduct discovery across state lines and obtaining depositions of out-of-state witnesses. Most states have adopted the act leaving only a few (~8) that have not adopted the act. For those states, you have to do your research and figure out what that state requires (motions, hearing before a judge, hire local counsel, etc.). If the state has adopted the act, it’s a pretty simple procedure. First, look at that state’s rules on domesticating as they may have additional requirements. Then, call the county in the state where you need the subpoena domesticated and find out their filing fee. Everywhere is different. Explain what you are doing and most courts are pretty helpful in assisting you or confirming procedures.
In domesticating a N.C. subpoena in another state, first prepare a N.C. subpoena with all the information and issued by an attorney. Second, prepare a subpoena for the state you need to domesticate in and perform any additional requirements of that state/county. Third, send it all to the out-of-state county for issuance along with a check for their fee.
In assisting an out-of-state attorney in domesticating a foreign subpoena in N.C., you first need to obtain an issued out-of-state subpoena (some states allow an attorney to issue like N.C. or they may require a court official to issue). Second, prepare a N.C. subpoena with all required information. Third, prepare a List of Counsel and obtain a check for $200.00 for the issuance fee. Once you have all documents prepared, send to the Clerk of Court in the county you need it domesticated in and the Clerk will issue the N.C. subpoena.
As it goes, situations aren’t always black and white and there will be times of uncertainty on what to do or what’s expected. We are paralegals because we are paired with attorneys. Never be afraid to go to your attorney with questions. They would always rather you ask what you might think is a “dumb” question than fix a mistake.