RULES OF CIVIL PROCEDURE
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Rule 4. Process
The summons shall be filled out by the plaintiff’s attorney as provided in subdivision (b) of this rule. The plaintiff’s attorney shall deliver to the person who is to make service the original summons or a copy upon which to make a return of service and a copy of the summons and of the complaint for service upon the defendant.
The summons shall be signed by the plaintiff’s attorney, or, if the plaintiff has no attorney, by any Superior Judge or a judge or the clerk of the court to which it is returnable. It shall contain the name of the court and the names of the parties, be directed to the defendant, 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 defendant that in case of the defendant’s failure to do so judgment by default will be rendered against the defendant for the relief demanded in the complaint.
By Whom Served.
Service of all process shall be made by a sheriff or deputy sheriff, by a constable or other person authorized by law, or by some indifferent person specially appointed for that purpose by any superior judge, or a judge of the court to which it is returnable, except that process served under subdivision (f), or a notice and request sent pursuant to subdivision (l), of this rule may be deposited in the mail by plaintiff or plaintiff’s attorney and 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.
Summons: Personal Service Within the State.
The summons and complaint shall be served together. Personal service within the state shall be made as follows:
- Upon an individual by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual’s 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 of the 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. The court, on motion, upon a showing that service as prescribed above cannot be made with due diligence, may order service to be made by leaving a copy of the summons and of the complaint at the defendant’s dwelling house or usual place of abode, or to be made by publication pursuant to subdivision (g) of this rule, if the court deems publication to be more effective. If the individual is an infant or incompetent person, process may be served upon the individual by one of the foregoing methods, or as follows:
- Upon an infant by delivering a copy of the summons and of the complaint personally (a) to the infant and (b) also to the infant’s guardian if the infant has one within the state, known to the plaintiff, and if not, then the infant’s father or mother or other person having the infant’s care or control, or with whom the infant resides, or if service cannot be made upon any of them, then as provided by order of the court.
- Upon an incompetent person by delivering a copy of the summons and of the complaint personally (a) to the guardian of that person or a competent adult member of that person’s family with whom that person resides, or if that person is living in an institution, then to the director or chief executive officer of the institution, or if service cannot be made upon any of them, then as provided by order of the court and (b) unless the court otherwise orders, also to the incompetent.
- Upon the State of Vermont or any agency or officer thereof, by delivering a copy of the summons and of the complaint to the Attorney General or the Deputy Attorney General.
- Upon a county, by delivering a copy of the summons and of the complaint to the county clerk or the county treasurer.
- Upon a town, by delivering a copy of the summons and of the complaint to the clerk, treasurer, manager, or one of the selectmen.
- Upon a city, by delivering a copy of the summons and of the complaint to the clerk, treasurer, or manager.
- Upon any other public corporation, body, or authority, by delivering a copy of the summons and of the complaint to any officer, director, superintendent, or manager thereof.
- Upon a domestic or foreign private corporation, by delivering a copy of the summons and of the complaint to an officer, a director, a managing or general agent, a superintendent, or to any other agent authorized by appointment or by law to receive service of process, provided that any further notice required by a statute authorizing an agent to receive service shall also be given. For purposes of this paragraph the officers of a national bank shall include the cashier and assistant cashiers thereof. If none of the foregoing persons is present in the state, such copies may be delivered to any person in the actual employment of the corporation or to one of the stockholders, or, if no such person be found, may be left at an office or place of business of the corporation within the state.
- Upon a partnership or unincorporated association or joint stock company, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, a superintendent, any member thereof, or any other agent authorized by appointment or by law to receive service of process, provided that any further notice required by a statute authorizing an agent to receive service shall also be given.
Personal Service Outside the State.
A person whose contact or activity in the state or such contact or activity imputable to that person is sufficient to support a personal judgment against that person may be served with the summons and the complaint outside the state, in the same manner as if such service were made within the state, by any person authorized to serve civil process by the laws of the place of service or by a person specially appointed to serve it. An affidavit of the person making service shall be filed with the court, stating the time, manner, and place of service. Such service has the same force and effect as personal service within the state.
Service by Mail.
- Where service cannot with due diligence be made personally within or outside the state, service of the summons and complaint may be made by mail upon a person described in subdivision (e) in the following cases:
- Where the person to be served has an interest in, title to, or right to the possession of goods, chattels, rights, credits, land, tenements, or hereditaments in the state which has been or on pending motion may be attached or secured by trustee process in the commencement of the action, or will be affected by a judgment in the action;
- Where the person to be served is one against whom a judgment for divorce or annulment of marriage is sought. Such service shall be by delivery to the defendant outside the state by registered or certified mail, with restricted delivery and return receipt requested. Service by registered or certified mail under this paragraph shall be complete when the registered or certified mail is delivered and the return receipt signed or when acceptance is refused, provided that the plaintiff shall file with the court an affidavit setting forth the efforts made to obtain personal service and either the return receipt or, if acceptance was refused, an affidavit that upon notice of such refusal a copy of the summons and complaint was sent to the defendant by ordinary first class mail.
- When service may be made upon an officer of the state as a statutory agent for the service of process pursuant to paragraph (1), (7) or (8) of subdivision (d), service in accordance with the applicable statute may be made by mailing a copy of the summons and of the complaint by first-class mail, postage prepaid, to the officer. Such service shall be by delivery to the defendant outside the state by registered or certified mail, with restricted delivery and return receipt requested. Service by registered or certified mail shall be complete when the registered or certified mail is delivered and the return receipt signed or when acceptance is refused, provided that the plaintiff shall file with the court an affidavit setting forth the efforts made to obtain personal service and either the return receipt or, if acceptance was refused, an affidavit that upon notice of such refusal a copy of the summons and complaint was sent to the defendant by ordinary first class mail.
Service by Publication.
- When Service May Be Made. At any time after the filing of the complaint, the court, on motion upon a showing made by verified complaint or affidavit duly filed that service cannot with due diligence be made by another prescribed method, shall order service by publication when the person to be served is one described in subdivision (e) of this rule, unless a statute provides another method of notice.
- Contents of Order. An order for service by publication shall include (i) a brief statement of the object of the action; (ii) if the action places in issue the title or interest of the defendant to any property, a description of any such property; and (iii) the substance of the summons prescribed by subdivision (b) of this rule. The order shall also direct its publication once a week and at least seven days apart for 2 or more successive weeks in a designated newspaper or newspapers of general circulation reasonably calculated to give notice to the defendant; and the order shall also direct the mailing to the defendant, if an address is known, of a copy of the order as published.
- Time of Publication; When Service Complete. The first publication of the summons shall be made within 20 days after the order is granted. Service by publication is complete on the twenty-first day after the first publication. The plaintiff shall file with the court an affidavit that publication has been made.
Territorial Limits of Effective Service.
All process may be served anywhere within the territorial limits of the state.
Return of Service.
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, with that person’s fees, charges and mileage endorsed thereon, to the plaintiff’s attorney. 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. The attorney’s filing of such proof of service with the court shall constitute a representation by the attorney, subject to the obligations of Rule 11, that the copy of the complaint delivered to the officer for service was a true copy. If service is made by a person other than a sheriff or deputy sheriff or a constable authorized by law, that person shall make proof thereof by affidavit. Failure to make proof of service shall not affect the validity of the service. The officer or other person serving the process shall endorse the date of service upon the copy left with the defendant or other person. Failure to endorse the date of service shall not affect the validity of service.
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.
Alternative Provisions for Service in a Foreign Country.
- Manner. When service is to be effected upon a party in a foreign country, it is also sufficient if service of the summons and complaint is made: (A) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or (B) as directed by the foreign authority in response to a letter rogatory, when service in either case is reasonably calculated to give actual notice; or (C) upon an individual, by delivery to the individual personally, and upon a corporation or partnership or association, by delivery to an officer, a managing or general agent; or (D) by any form of mail, requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or (E) as directed by order of the court. Service under (C) or (E) above may be made by any person who is not a party and is not less than 18 years of age or who is designated by order of the court or by the foreign court. On request, the clerk shall transmit the summons to the person or the foreign court or officer who will make the service.
- Return. Proof of service may be made as prescribed by subdivision (i) of this rule, or by the law of the foreign country, or by order of the court. When service is made pursuant to subparagraph (1)(D) of this subdivision, proof of service shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court.
Waiver of Service; Duty to Save Costs of Service; Request to Waive.
- Objections 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.
- Authorization; Duty to Save Costs. When an action has been commenced by filing the complaint, and the summons and complaint may be served within or without the state by personal service under subdivisions (d) or (e) of this rule, notice may be given as provided in this subdivision instead. However, notice may not be given under this subdivision to an infant or incompetent person. A defendant who receives notice of an action in the manner provided in this subdivision 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.
- Method. The notice and request given under this subdivision
- shall be in writing and shall be addressed directly to the defendant, if an individual, or else to any other person authorized under subdivision (d) of this rule to receive service of process on behalf of a defendant who is not an individual, provided that notice may not be given hereunder to a public officer who is designated by statute as an agent to receive service of process;
- shall be dispatched through first-class mail or other reliable means;
- shall be accompanied by a copy of the complaint and shall identify the court in which it has been filed;
- shall inform the defendant, by means of a form conforming substantially to Forms 1B and 1C as contained in the Appendix of Forms to these rules, of the consequences of compliance and of a failure to comply with the request;
- shall set forth the date on which the request is sent;
- shall 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 any state or territory of the United States; and
- shall provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing.
If a defendant located within any state or territory of the United States fails to comply with a request for waiver made by a plaintiff located within any state or territory of the United States, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure be shown.
- Effect of Waiver: Time for Answer. A defendant that, before being served with process, timely returns a requested waiver signed and dated personally or by a person to whom a notice and request may be addressed under subparagraph (3)(A) 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 any state or territory of the United States.
- Same: Action to Proceed. When the plaintiff files a waiver of service with the court, the action shall proceed, except as provided in paragraph (4), as if a summons and complaint had been served at the time of filing the waiver, and no proof of service shall be required.
- Costs for Failure to Waive. The costs to be imposed on a defendant under paragraph (3) for failure to comply with a request to waive service of a summons shall include the costs subsequently incurred in effecting service under subdivision (d)-(g) or (k), together with the costs, including a reasonable attorney’s fee, of any motion required to collect the costs of service.
Amended March 12, 1975, eff. April 1, 1975; Oct. 30, 1979, eff. Dec. 3, 1979; Jan. 9, 1985; April 3, 1986; Nov. 25, 1986, eff. March 1, 1987. Amended Jan. 20, 1992, eff. March 2, 1992; Feb. 22, 1996, eff. July 1, 1996.
Rule 45. Subpoena
- Every subpoena shall
- state the name of the court from which it is issued; and
- state the title of the action, the name of the court in which it is pending, and its civil action number; and
- command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified; and
- set forth the text of subdivisions (c) and (d) of this rule.
A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately.
- A subpoena may issue from the court in any county.
- The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney, a notary public, or a magistrate may also issue and sign a subpoena.
- A subpoena may be served by any person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and, if the person’s attendance is commanded, by tendering to that person the fees for one day’s attendance and the mileage allowed by law. Prior notice of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5 (b).
- A subpoena may be served at any place within the state.
- Proof of service when necessary shall be made by filing with the clerk of the court for which the subpoena is issued a statement of the date and manner of service and of the names of the persons served, certified by the person who made the service.
Protection of Persons Subject to Subpoenas.
- A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court for which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney’s fee.
- (A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.
(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court for which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.
- On timely motion, the court for which a subpoena was issued shall quash or modify the subpoena if it
- fails to allow reasonable time for compliance;
- requires a resident of this state to travel to attend a deposition more than 50 miles one way unless the court otherwise orders; requires a nonresident of this state to travel to attend a deposition at a place more than 50 miles from the place of service unless another convenient place is fixed by order of court, or
- requires disclosure of privileged or other protected matter and no exception or waiver applies, or
- subjects a person to undue burden.
- If a subpoena
- requires disclosure of a trade secret or other confidential research, development, or commercial information, or
- requires disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study made not at the request of any party, or
- requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 50 miles one way to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.
Duties in Responding to Subpoena.
- A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.
- When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.
Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court for which the subpoena issued. Adequate excuse for failure to obey exists when a subpoena purports to require a nonparty to attend or produce at a place not within the limits provided by clause (ii) of subparagraph (c) (3)(A). The provisions of 12 V.S.A. §§ 1623-1624 shall apply to failure by any person without adequate excuse to obey a subpoena served upon that person.
Failure To Appear.
The provisions of 12 V.S.A. §§ 1623-1624 shall apply to failure by any person without adequate excuse to obey a subpoena served upon that person. Amended Dec. 28, 1981, eff. March 1, 1982. Amended Nov. 4, 1994, eff. March 1, 1995.