Utah Court Rules – Published for Comment
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Posted: April 5, 2016
Rule 004 The proposed amendment eliminates the authority to serve a defendant any time before trial, see St. Jeor v. Kerr Corporation, 2015 UT 49, ¶2. It also allows for and describes acceptance of the summons and complaint, which replaces the section on waiver of service, and it requires proof of service to include a copy of the summons.
Is the elimination of “copy of the complaint” in Rule 4(b)(I) and the elimination of “copy” in Rule 4(d)(1) in relation to the summons and complaint mean that under the proposed amended Rule 4 only complaints and summonses with wet signatures on them may be served on a defendant? If so, I’m opposed. Requiring wet signatures on the summons and complaint served on each defendant–as opposed to a copy of the electronically filed complaint and a copy of the original summons with a wet signature on it–eliminates the ability to email a copy of the summons and complaint to the process server to print out and serve, and would cause delay and increased costs for plaintiffs, not to mention silly lawsuits over the technical argument of whether a summons or complaint contained an original signature or a copy of the original signature.
Great point! I have the same concern. Service would become much more complicated, expensive and time consuming if we could no longer email documents to the process server, but instead had to send originals in the mail.
There appears to be a typo at the end of proposed Rule 4(d)(3(D) where it references proof of service under Rule 4(f). I believe it was meant to reference Rule 4(e) Proof of Service as the proposed Rule 4 appears to eliminate subsection (f) in its entirety.
The civil procedures rules committee must be made entirely of the defense bar, because this is a complete over-reaction to the discussion of 4(b)(ii) in St. Jeor v. Kerr. It seems like sour grapes to change the rules if they don’t favor your large corporate clients. It is an insidious slippery slope to foreclose the rights of plaintiffs to follow the trail of evidence in their tort claims, which is what this proposed amendment would do. The proposed amendment should be withdrawn, deleted, and forgotten.
The amended rule will require the preparation and filing of a summons in all cases including a stipulated divorce where the parties are in total agreement. Currently as part of the stipulation filed with the Court the practice is to simply waive service with no summons being prepared.
Proposed Rule 4(d)(1) should address the issue that anyone interested in the action and not just a party to the action can not serve the process. A fathers son should not be able to serve the summons and complaint to the defendant that his dad is suing. It should also be served by an American citizen. It should read something like, The summons and complaint may be served by any US citizen 18 years of age or older at the time of service and not a party to or interested in the action or a party’s attorney or agent. The person serving the process can not have any interest from the service or non service thereof.
This seems sensible to me. Those who serve process under Rule 4 should have no interest in the case.
A small claims affidavit certified mail return receipt that is refused should be considered under the statute for refusal service.
The proposed amendment seems like an overreaction. Why should responsible people be punished? The amendment favors being unavailable for service while those that are responsible and can be served would have to deal with the full weight of the issue. The person that is served later usually knows they have been dodging the issue and/or service so they are usually never surprised; why should those that avoid service get the benefit?
The change would have a dramatic impact on multiparty litigation. Under the new rule how could an attorney file a case unless he is sure he can serve all defendants right away? For example, case is filed against three parties, only one party is served. A default judgment is taken against the party that is served. The other two parties cannot be served; the 120 days expired. Pursuant to Rule 54 the Default Judgment is now a final judgment. The party that is served is now responsible for the entire obligation and the other two parties are now off the hook? Doesn’t claim preclusion, and collateral estoppel cause major issues? What about cross-claims by the one defendant that is served, are they foreclosed from seeking contribution form the other two defendants? The Plaintiff and the Defendants are prejudiced because they are cut-off by what becomes a really short statute of limitations.
Judicial economy is not served because every attorney (with a multi-defendant case) would have to file a motion to extend time for good cause in order to protect the client.
My vote is to leave it the way it is.
Thank you, for your consideration.
Defendants evading service of process is a problem that regularly happens. My concern with the change is that a deceptive defendant could avoid liability by merely evading service of process for 120 days.
Furthermore, at times, plaintiffs do not have sufficient information available at the start of a case to know all of the defendants, and the proposed rule would prevent claimants from obtaining relief from all of the pertinent defendants.
While I understand the policy concerns regarding defendants being served in case many years after the filing of the complaint, the proposed automatic dismissal seems too drastic of a response thereto, and would cause more harm than good.
In thirty four years of practice, Rule 4, allowing service before trial has not been a significant issue from my perspective or the defense lawyers I interact with. Why make the change? There is no reason. It is there for good reason and necessary in some cases. I am concerned about the trend to change the rules when no real issue needs to be addressed. The recent change to Rule 26 is having the effect of complicating litigation, causing more motions, and effectively denying injured parties access to court because Rule 26 is substantially increases the cost of litigation. Many smaller cases are being denied access to attorneys because attorneys can no longer afford to take the cases. Whoever is making these changes, has not spent a lot of time handling a personal injury case load, and lacks knowledge of the high cost of experts. Rule 26 and other rule changes should make access to the courts easier and inexpensive, not the other way around.
I like the waiver and have used it many times – I do not see where the waiver is encapsulated in the new rule. The process of service seems too complicated. Why not leave the rule the way it is?
If the proposed Rule 4(b)(ii) provision is enacted, plaintiffs would be disproportionately harmed and all parties would be unreasonably restricted in reacting to the information that they glean through discovery. The 120 day restriction on service could impede the imposition of responsibility on liable parties and unreasonably limit the recovery of the injured. The proposed changes could artificially close the courthouse doors to parties unfortunate enough not to know of liable parties or where those liable parties are located. In some cases, the rule change could bring equal protection, due process, and open court constitutional challenges. The current timing of initial disclosures and discovery, accompanied by any delay, motion for protective order, or interruption in the most expeditious discovery, could easily push litigants past the 120 period. The existing rule has worked for many years and should not be so quickly abandoned.
I oppose the proposed changes. Requiring a plaintiff to serve all defendants within the initial 120-day period is unduly harsh and burdensome on plaintiffs. Not all defendants can be found or served within 120 days. Avoidance of service by defendants is still an unpleasantly common practice. The change in the rule seems arbitrary and not based on any well-founded reasons, at least none that are apparent from the St. Jeor case.
Relegating the rule to the discretion of trial judges means that some who are eager to clear cases from their dockets can take a plaintiff by surprise (essentially) by denying a motion for extension, and then a jurisdictional bar to the plaintiff’s claim has been lowered forever.
This proposed change will increase, rather than decrease, gamesmanship and avoidance of service, and will burden the trial courts with a proliferation of motions for extension of time to serve defendants, where such motions would never have been necessary before.
The St. Jeor case involved a wrongful death claim based on asbestos exposure. Plaintiff served “a number of the named defendants” within 120 days, but the Kerr corporate defendant was not served until 5 years later. The Supreme Court actually found that service was proper under the rule, though it did refer the rule for further study.
It seems unlikely that the Kerr corporate defendant, who I believe is well-known in asbestos litigation, was in fact actually unaware of the litigation. It is not uncommon for defendants to “talk amongst themselves,” and no real prejudice seems to have been demonstrated.
Moreover, this was an interlocutory appeal that–no surprise–actually prolonged the delay of which the defendant nominally complained. It provides no persuasive basis for upsetting the well-established rules for the large majority of plaintiffs and defendants.
Allowing a court’s entire jurisdiction over evasive defendants to hang by such a slender thread also threatens the “open courts” that are guaranteed to the citizens of Utah by the Article 11 of the Utah Constitution.
Likewise, the removal of the “acceptance of service” provision from Rule 4 seems to be based on arbitrary and capricious impulses rather than compelling reasons, and none that are apparent from St. Jeor. The courts have long recognized that parties may waive a multiplicity of rights. Why should the right to service be any different?
Requiring formal service (rather than a simple acceptance of service, as is currently allowed) will increase the business of formal process servers, but that will also increase the expense to all plaintiffs, which runs contrary to the express goals of the 2011 revisions to the Rules, which were notably to reduce expense and wasted time.
Please, let the courts continue to reduce expense and disproportionate burden by allowing less costly and formal service of process: rejecting these expensive and burdensome changes to the rules.
The following comments are submitted on behalf of the Utah Association for Justice. The UAJ is an association of nearly 400 trial attorneys in the state committed to preserving access to justice. I am the president of the UAJ.
There are two proposed changes to Rule 4 that raise significant concerns. First, in the case of multiple defendants, the proposal is that all defendants be served within 120 days. Second, the Court proposes eliminating URCP Rule 4(f) on waiver of service. These changes should not be made.
120 day service requirement
This change should not be implemented. First, the rule increases the financial burden for plaintiffs. Many cases involve non-U.S. defendants. Service on these defendants often takes more than 120 days. Service upon a foreign defendant can take up to one year to complete because of treaties that require service to be made through diplomatic channels and the time required to have the complaint and summons translated. Some U.S. defendants are difficult to serve because the company executives are difficult to locate. Serving companies in liquidation often involves locating old executives. Finally, many individual defendants have moved. Plaintiffs must now expend resources to seek extensions with the court. Second, this change rewards defendants who are difficult to serve even though that difficulty is not the plaintiff’s fault. Indeed, some defendants hide from service. As the rule is proposed, a plaintiff will be required to seek an extension for good cause. The rule allows the court to deny such a motion. Plaintiffs face the real possibility that for whatever reason the court may deny a requested extension, requiring the plaintiff to start over or be denied court access altogether because of the statute of limitations. The plaintiff should not be put in that position. Finally, the change seeks to remedy a problem that does not exist or is not significant. If the defendant believes it has been prejudiced because service was unreasonably delayed, it can always ask the court to quash service or sever the plaintiff’s claims against it.
Rule 4(f)
This change should also not be implemented. First, Rule 4(f) provides significant savings to parties. Rule 4(f) allows a party to request a defendant to waive service by sending the party a copy of the complaint with a waiver of service. This type of service particularly saves time and money when many plaintiffs are involved, such as in a mass tort case, or when many defendants are involved, such as in a lien case. In addition, the present rule has “teeth” in that a defendant who unreasonably refuses to accept service is responsible for the expense of securing service. This expense can be substantial. The proposed substitute labeled “(d)(3) Acceptance of Service” makes acceptance of service purely voluntary. A defendant can refuse to accept service and face no penalty. The statement that “parties have a duty to avoid unnecessary expenses of serving the summons and complaint” are just mere words with no penalty. Second, there seems to be no reason to eliminate the waiver procedure as an option for service. Has the committee talked to plaintiff’s lawyers about the change? This change actually increases the cost for plaintiffs with no real savings for defendants. In short, this change adds another barrier to plaintiffs’ access to court.
I am first concerned with the change to the 120 day service requirement. I have on a number of occasions been required to serve Chinese defendants along with U.S. defendants. Such service always takes from 9 months to a year because of treaty obligations. Under the present rule, I can serve the U.S. defendants and then proceed to serve the Chinese defendants without fear of a dismissal. Under the proposed rule, I will be required to see court approval for any extension. This new rule increases costs to my clients who are usually individuals. Moreover, there is always the risk the court will deny the motion. The committee might say that will never happen because you have good cause, but you cannot give me any guarantee. It seems the court has tools to deal with plaintiffs who delay service for bad faith reasons.
I also object to the change to Rule 4(f). I use this process particularly in the federal court. It saves time and it can be enforced. I am not sure why this change. Again, it increases cost for the plaintiffs without any real benefit to the other side.