Attorney General Peter Kilmartin
COMMENCEMENT OF THE SUIT
In Rhode Island a law suit is commenced either by the filing of a copy of the complaint in court, by mailing it to the court, or by delivering it with a summons to an officer for service. See District Court Civil Rule [hereinafter D.C.R. 3]
The complaint is pleading which set forth a claim for relief, i.e., the allegation of the case and the remedy which is demanded; it will be drafted by the plaintiff or the plaintiff's attorney. The summons is a notice from the clerk of the court which tells the defendant where and when he can defend against the suit. Thesummons is a form available in blank rom the clerk's office which will be filed in by the plaintiff or the plaintif's attorney. See D.C.R. 4(1) & 4(b).
A. SERVICE OF THE SUMMONS & COMPLAINT
Service is the legal method by which the defendant is given a copy of the complaint and summons. It can be made either before or after the filing in court.
- WHO CAN SERVE
Service can be made by a sheriff or deputy sheriff, a constable, a town sergeant, or by some other person specially appointed by the court. D.C.R. 4(c).
- METHOD OF SERVICE
The first rule is that the summons and the complaint must be served together. D.C.R. 4(d). D.C.R. 4(d) describes the proper method of service in several situations.
- As to individuals:
Upon an individual: by delivering a copy of the summons and complaint to him personally or by leaving copies thereof at his 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 D.C.R. 4(d)(1).
- As to incompetent persons:
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 [for individuals]. D.C.R. 4(d)(2).
- As to private corporations:
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. D.C.R. 4(d)(3).
- As to the State of Rhode Island:
Upon the state by delivering a copy of the summons and complaint to the attorney general or an assistant attorney general. D.C.R. 4(d)(4).
- As to a public corporation:
Upon a public corporation, body, or authority by delivering a copy of the summons and complaint to any officer, director or manager thereof. D.C.R. 4(d)(5).
- Service outside the state:
In some cases service is allowed to be made outside the state. This is where there is personal jurisdiction over the foreign defendant. It can be made on any individual by mail or by delivery to the defendant personally by a disinterested person. It can be made on a corporation by mail or by delivery of the complaint and summons to the president secretary or treasurer of such corporation or to an agent or attorney for service of process designated in its state of incorporation by a disinterested person. A constable has no power to act as a constable outside of Rhode Island, by may be retained to serve process as a disinterested person. D.C.R. 4(e).
In certain other cases, involving an interest in property, service can be made outside the state if, by the exercise of due diligence, service cannot be made within the state. Obviously, in such situations, it is important that the constable document his or her efforts to serve within the state. D.C.R. 4(f)
- IN ALL CASES PROOF OF SERVICE
The fundamental purpose for having professional process servers, whether they be constables or sheriffs, is so that the court may be assured that the defendant has been given notice o the proceedings before the court. Therefore, it is vitally important that in all cases the constable must document his service.
Service is made by delivering a copy of the summons and the complaint. The original is returned to the plaintiffís attorney. On the bottom of the summons is the proof of service. It must be filled in by the sheriff or constable indicating the name of the person left with and the date and the place. A person other then a sheriff or constable has to make affidavit as to service. If the constable obtained a receipt as to delivery, it must be attached and returned with the summons. The plaintiffís attorney must then file it in court. D.C.R. 4(h). N.B.! Constable must write legibly!
B. WRITS OF ATTACHMENT
Formerly, it was the frequent practice at the beginning of a suit to attach the goods of the defendant. Supreme Court case law has made it more difficult to obtain a pre-judgment writ of attachment. See Sniadach v. Family Finance Corp., 395 U.S. 337 (1968); Fuentes v. Shevin, 407 U.S. 67 (1972); Dionne v. Bouley, 583 F. Supp. 307 (D.R.I. 1984).
Today, no constable may attach the goods or property of a person prior to judgment without a court order which has been issued after a hearing with notice to the defendant! R.I. Gen. Laws § 10-5-2 (a).
Accordingly, the procedure for executing a writ of attachment will be considered below, with other post-judgment collection procedures.