Attorney General Peter Kilmartin


Rhode Island District Court
Civil Rules of Procedure

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS AND ORDERS

Index:

  1. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS AND ORDERS
    1. RULE 3. COMMENCEMENT OF ACTION
      RULE 4. PROCESS, ATTACHMENT, TRUSTEE PROCESS, ARREST
      1. Summons: Form.
      2. Same: Issuance
      3. By Whom Served
      4. Summons: Personal Service
      5. Service Outside State: Personal Jurisdiction
      6. Service Outside the State in Certain Actions
      7. Service by Publication
      8. Return
      9. Amendment.
      10. Attachment and Trustee Process.
        1. Availability of Remedies.
        2. Writ of Attachment: Form
        3. Same: Issuance.
        4. Same: Service.
        5. Attachment on Counterclaim, Cross-Claim, or Third-Party Complaint.
        6. Subsequent Attachment.
        7. Return of Service.
      11. Arrest.
        1. Availability of Remedy
        2. Form and Service.
        3. Subsequent Writ of Arrest.
        4. Ne Exeat RULE 4.1 [REPEALED]
      RULE 5. SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS
      1. Service: When Required.
      2. Same: How Made.
      3. Same: Numerous Defendants.
      4. Filing: No Proof of Service Required.
      5. Filing With the Court Defined
      6. Effect of Failure to File.
      RULE 6. TIME
      1. Computation
      2. Enlargement.
      3. For Motions--Affidavits.
      4. Additional Time After Service by Mail


RULE 3. COMMENCEMENT OF ACTION

    A civil action is commenced (1) by filing a complaint with the court together with payment of the entry fee prescribed by law, or (2) by depositing the complaint with said fee in the mail addressed to the clerk, or (3) by delivery of a summons and complaint to an officer for service. When method (3) is used, the complaint shall be filed with the court within ten (10) days after the completion of service; but in any case where attachment of real or personal property or attachment on trustee process has been made, the complaint shall be filed not later than thirty (30) days after the first such attachment. If the complaint is not timely filed, the action may be dismissed on motion and notice, and in such case the court may, in its discretion, if it shall be of the opinion that the action was vexatiously commenced, tax a reasonable attorney's fee as costs in favor of the defendant, to be recovered of the plaintiff or the plaintiff's attorney.

RULE 4. PROCESS, ATTACHMENT, TRUSTEE PROCESS, ARREST

    1. (a) Summons: Form. The summons shall bear the signature or facsimile signature of the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendants, state the name and address of the plaintiff's attorney, and the time within which these rules require the defendant to appear and defend, and shall notify the defendant that in case of his or her failure to do so judgment by default will be rendered against the defendant for the relief demanded in the complaint. Process issued out of any division of the court may be made returnable in any other division.
    2. (b) Same: Issuance. The summons may be procured in blank from the clerk and shall be filled out by the plaintiff's attorney as provided in subdivision (a) of this rule. The plaintiff's attorney 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 and of the complaint for service upon the defendant. Additional summons may be issued against any defendant.
    3. (c) By Whom Served.
      1. (1) Except as provided in paragraph (2) of this subdivision, service of process shall be made by a sheriff or sheriff's deputy, within the sheriff's county unless otherwise provided by law, by a town sergeant or constable when authorized by law, by any other person authorized by law, or by some person specially appointed by the court for that purpose, except that a subpoena may be served as provided in Rule 45. Special appointments to serve process shall be made freely when substantial savings in travel fees will result.
      2. (2) In any circumstance where service may be made pursuant to subdivision (d), service may also be made by mailing a copy of the summons and complaint (by first-class mail, postage prepaid) to the person to be served together with two (2) copies of a Notice and Acknowledgement Form (conforming substantially with that found in the appendix to these rules) and a return envelope, postage prepaid, addressed to the sender. If no acknowledgement of service under this paragraph is received by the sender within twenty (20) days after the date of mailing, service of such summons and complaint shall be made pursuant to subdivisions (d) or (e) of this rule. Unless good cause is shown for not so doing the court shall order the payment of costs for personal service by the person served if such person does not complete and return to the sender within twenty (20) days after mailing, the Notice and Acknowledgement Form. In cases where service is made pursuant to this paragraph, the civil action shall be commenced by filing the complaint and summons and the returned Notice and Acknowledgement Form with the court. Service may not be made pursuant to this paragraph within six (6) months prior to the expiration of the termination of the applicable period of limitations for the action stated in the complaint.
    4. (d) Summons: Personal Service. The summons and complaint 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. (1) Upon an individual other than an incompetent person by delivering a copy of the summons and complaint to him or her personally or by leaving copies thereof at his or her 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 and complaint 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. (2) Upon a person for whom a guardian or conservator has been appointed by serving copies of the summons and complaint upon such guardian or conservator and upon the incompetent person in the manner provided in paragraph (1) of this subdivision.
      3. (3) Upon a private corporation, domestic or foreign, by delivering a copy of the summons and complaint to an officer, a managing or general agent, or by leaving a copy of the summons and complaint at the office of the corporation with a person employed therein, or by delivering a copy of the summons and complaint 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. (4) Upon the state by delivering a copy of the summons and complaint to the attorney general or an assistant attorney general.
      5. (5) Upon a public corporation, body, or authority by delivering a copy of the summons and complaint to any officer, director or manager thereof.
    5. (e) Service Outside State: 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. (1) Upon an individual by delivery of a copy of the summons and complaint to him personally by any disinterested person, or by mailing a copy of the summons and complaint to the individual by registered or certified mail, return receipt requested, 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. (2) Upon a foreign corporation by delivery of a copy of the summons and complaint 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 and complaint 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.
    6. (f) Service Outside the State in Certain Actions . Where service cannot with due diligence be made personally within the state, service of the summons and complaint may be made outside the state in the manner provided by subdivision (e) of this rule in the following cases:
      1. (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. (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.
    7. (g) Service by Publication. Whenever in an action described in subdivision (f) 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.
    8. (h) Return. 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. If service is made by a person other than a sheriff, the sheriff's deputy, or a constable licensed by the Chief Judge to serve District Court process, he shall make affidavit thereof. Any return receipt received in connection therewith shall be annexed to such process when returned. The plaintiff's attorney 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.
    9. (i) 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.
    10. (j) Attachment and Trustee Process.
      1. (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. (2) Writ of Attachment: Form. The writ of attachment shall bear the signature or facsimile signature of the clerk, be under seal 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, be directed to the sheriff of the county or the sheriff's deputies, or to either of the town sergeants or constables in such county, 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 interests and costs, and to make due return of their doings thereon.
      3. (3) Same: Issuance. The writ of attachment may be procured in blank from the clerk, shall be filled out by the plaintiff's attorney 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 under this rule submits himself or herself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his or her agent upon whom any papers affecting his or her liability on the bond or undertaking may be served. A surety's liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court who shall forthwith mail copies to the persons giving the security if their addresses are known.
      4. (4) Same: Service. The plaintiff's attorney 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 and complaint are served upon the defendant as provided in Rule 4, 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 the hearing thereof. An attachment made after service of the summons and complaint shall be made as provided in paragraph (6) of this subdivision.
      5. (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. (6) Subsequent Attachment. After service of the summons and complaint 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 (g) 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. (7) Return of Service. Upon service of a writ of attachment and copy thereof, the person making the service shall make his or her return as provided in subdivision (b) of this rule.
    11. (k) Arrest.
      1. (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. (2) Form and Service. The writ of arrest shall be obtained and filled out in the same manner as a writ of attachment, except that the writ of arrest shall be directed only to the sheriff and the sheriff's deputies. It 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 and complaint, and return of service shall be made in the same manner as return of service on a writ of attachment.
      3. (3) Subsequent Writ of Arrest. After service of the summons and complaint 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. (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.

RULE 4.1 [REPEALED]

RULE 5. SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS

    1. (a) Service: When Required. Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal and similar paper shall be served upon each of the parties. 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 for service of summons in Rule 4.
    2. (b) Same: How Made. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party himself or herself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or by mailing it to the attorney at the attorney's last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this rule means: handing it to the person to be served; or leaving it at his or her office with his or her clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or if the office is closed or the person to be served has no office, leaving it at his or her dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing.
    3. (c) 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 that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and 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 fo rm as the court directs.
    4. (d) Filing: No Proof of Service Required. All papers after the complaint required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter. Such filing by a party's attorney shall constitute a representation by him or her, subject to the obligations of Rule 11, that a copy of the paper has been or will be served upon each of the other parties as required by subdivision
      1. (a) of this rule. No further proof of service is required unless an adverse party raises a question of notice. In such instance the affidavit of the person making service shall be prima facie evidence.
    5. (e) Filing With the Court Defined. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him or her, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk.
    6. (f) Effect of Failure to File. If any party to an action fails to file within five (5) days after the service any of the papers required by this rule to be filed, the court, on motion of any party or of its own initiative, may order the papers to be filed forthwith, and if the order be not obeyed, the court may order them to be regarded as stricken and their service to be of no effect.

RULE 6. TIME

    1. (a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court or by any applicable statute the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period is to be included, unless it is a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Sunday nor a holiday.
    2. (b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion
      1. (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or
      2. (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect or
      3. (3) permit the act to be done by stipulation of the parties; but it may not extend the time for taking any action under Rules 60(b) and 73.
    3. (c) For Motions--Affidavits. A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five (5) days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion, and opposing affidavits may be served not later than one (1) day before the hearing, unless the court permits them to be served at some other time.
    4. (d) Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, one (1) day shall be added to the prescribed period.