Advisory Committee Notes
Rule 4 constitutes a substantial change from prior practice. The rule modernizes and simplifies procedure relating to service of process. Although this rule and Rule 3 retain the ten-day summons procedure for commencement of actions, this rule endeavors to make practice under the ten-day summons provision more consistent with practice in actions commenced by the filing of a complaint. The rule retains portions of prior Rule 4, adopts portions of the present federal Rule 4, and adopts entirely new language in other areas. The rule eliminates the statement (appearing in paragraph (m) of the prior rule) that all writs and process may be served by any constable of the court. In the committee's view, this rule does not properly deal with the question of who may serve types of process other than the summons and complaint. In recommending the elimination of paragraph (m), the committee did not intend to change the law governing eligibility to serve such other process.
Paragraph (a). This paragraph eliminates the prior rule's reference to the issuance of summonses. See paragraph (b). Otherwise the paragraph is identical to the former paragraph (a).
Paragraph (b). This paragraph, a substantial change from the prior rule, requires that in an action commenced under Rule 3(a)(1), the summons, together with a copy of the complaint, must be served within 120 days of the filing of the complaint. The time period was borrowed from Rule 4(j), Federal Rules of Civil Procedure.
Paragraph (c). This paragraph makes minor revisions to the corresponding paragraph of the prior rule. In addition to data historically required to appear in the summons, the address of the court and information concerning the plaintiff or plaintiff's attorney are also required.
Paragraph (d). In prescribing the persons who may serve process, this paragraph eliminates the prior rule's distinction between in-state and out-of-state service. The paragraph is consistent with other changes in the rule designed to simplify and unify practice for in-state and out-of-state service. In order to be eligible to serve a summons or complaint, persons who are not sheriffs or other law enforcement personnel must be at least 18 years of age at the time of service. For eligibility to make service in a foreign country, see paragraph (d)(3). Subparagraph (d)(1)(A) presents the general rule for personal service on individuals who are not infants, incompetent, or incarcerated. Subparagraph (B) deals with service on infants and subparagraph (C) with service on incompetent persons. Subparagraphs (A), (B) and (C) are patterned after Rule 4(e), Federal Rules of Civil Procedure. Subparagraph (D) deals with service on persons who are incarcerated or committed to the custody of a state institution. Subparagraph (E) deals with service on business entities. Subparagraphs (F) through (I) change and modernize service on political subdivisions of the state. Subparagraphs (J) and (K) provide for service on the state and its departments, agencies, boards and commissions with only minor changes from the prior rule. Subparagraph (d)(2) adds a provision for service by mail or commercial courier service within any judicial district of the United States. The term "mail" refers to services provided by the United States Postal Service. The term "commercial courier service" refers to businesses that provide for the delivery of documents. Examples of "commercial courier service" include Federal Express and United Parcel Service. Methods of service by mail or commercial courier service must provide for a document indicating receipt. Subparagraphs (A) and (B) specify who must sign the document indicting receipt. For service under Subparagraph (d)(2) to be effective, the court must be clearly convinced that the proper person signed the document indicating receipt. Infants or incompetent persons may not be served by mail or commercial courier service. Subparagraph (C) details when service by mail or commercial courier service is complete.
Paragraph (d)(3). This paragraph provides several alternative means by which service must be made in foreign countries and provides for proof of such service.
Paragraph (d)(4). This paragraph replaces most of paragraph (f) of the prior rule. It is designed to permit alternative means of service where the identity or whereabouts of the person to be served is unknown, where personal service is impracticable, or where a party avoids personal service. Under the circumstances identified in the rule, this paragraph permits the court to fashion means of service reasonably calculated to apprise the parties of the pendency of the action. Use of this provision is not limited to actions traditionally considered in rem or quasi in rem. See Carlson v. Bos, 740 P.2d 1269, 1272 (Utah 1987). The present rule eliminates specific mention of service by telegraph or telephone (in paragraph (1) of the prior rule) since such service could be ordered under this paragraph if appropriate. The court's order of substituted service must specify the content of service and the event or events as of which service will be deemed complete. A copy of the order must itself be served so that the party served will be able to determine the sufficiency of service and the time as of which his or her response is due.
Paragraph (e). This paragraph replaces paragraph (g) in the prior rule. It requires proof of service to be filed "promptly" and in any event before a responsive pleading is due. The rule eliminates failure to file proof of service as a basis for challenging the validity of service. The rule contains specific requirements for proof of service depending upon who serves and what method of service is used. If the summons and complaint are served by mail or commercial courier service, subparagraph (1) requires the receipt signed by defendant or defendant's agent to be included in the proof of service.
Paragraph (f) adds an option for a plaintiff to request a defendant to waive service. This provision is similar to federal Rule (4)(d). The defendant is required to return the waiver of service within 20 days (30 days for a defendant outside the United States) from the date the request for waiver is sent. The rule grants a defendant who waives service additional time to file a response to the complaint. A defendant who does not return the request for waiver of service will be assessed plaintiff's actual costs in effecting service under other provisions of this rule.