How Does Rule 4 Apply To This Case? Was The Service Valid? Why Or Why Not?

Table of Contents Full Table of Contents

1. First of activeness
2. Summons
   1. Service of other process
3. Service and filing of pleadings and other papers
4. Time

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II. Commencement of Action; Service of Process, Pleadings, Motions and Orders

Offset of action

1. Complaint. — A civil activity is commenced by filing a complaint with the court. For a complaint naming more than i private plaintiff not related past marriage, a derivative or fiduciary relationship, each plaintiff shall be assigned a split up civil action number and be docketed as a separate civil action and be charged a dissever fee by the clerk of a circuit courtroom.
2. Civil case information statement. — Every complaint shall be accompanied past a completed civil case data argument in the form prescribed by the Supreme Court of Appeals.
3. Divorce complaints. — Every divorce complaint involving spousal support, child back up, child custody, or child visitation shall be accompanied by an awarding for services pursuant to Title IV-D of the Social Security Human activity and no hearing shall be conducted, except upon movement for emergency temporary relief, until an application for services pursuant to Title IV-D of the Social Security Act has been filed.

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Dominion days abolished

[Abrogated]

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Summons

1. Form. — The summons shall be signed by the clerk, bear the seal of the court, identify the court and the parties, exist directed to the defendant, and state the name and accost of the plaintiff's attorney or, if unrepresented, of the plaintiff. It shall as well land the fourth dimension within which the defendant must announced and defend, and notify the accused that failure to practice and so will result in a judgment past default against the accused for the relief demanded in the complaint. The court may allow a summons to exist amended.
2. Issuance. — Upon the filing of the complaint, the clerk shall forthwith issue a summons to be served as directed by the plaintiff. A summons, or a re-create of the summons if addressed to multiple defendants, shall be issued for each defendant to be served.
3. Service with complaint; by whom made. —
   1. A summons shall be served together with a re-create of the complaint. The plaintiff is responsible for directing the clerk in the fashion of service of the summons and complaint within the time immune under subdivision (k).
   2. Service may exist effected by whatever person who is not a party and who is at to the lowest degree xviii years of historic period.
   3. At the request of the plaintiff and upon payment of the applicable fees and costs of service, the clerk shall:
      1. Deliver the summons and complaint to the sheriff for service as directed by the plaintiff; or
      2. Make service past either certified mail or by the outset class mail as directed past plaintiff; or
      3. Forwards a copy of the summons and complaint to the Secretary of Country, as statutory chaser-in-fact, for service as specified by whatever applicable statute.
4. Style of service. — Personal or substituted service shall exist made in the following manner:
   1. Individuals. — Service upon an individual other than an infant, incompetent person, or convict may exist made by:
      1. Delivering a re-create of the summons and complaint to the individual personally; or
      2. Delivering a copy of the summons and complaint at the individual's abode identify or usual place of abode to a member of the individual'south family who is above the age of xvi (16) years and past advising such person of the purport of the summons and complaint; or
      3. Delivering a copy of the summons and complaint to an agent or chaser-in-fact authorized by appointment or statute to receive or accept service of the summons and complaint in the private'due south behalf; or
      4. The clerk sending a re-create of the summons and complaint to the individual to be served by certified post, render receipt requested, and delivery restricted to the addressee; or
      5. The clerk sending a re-create of the summons and complaint by commencement class mail, postage prepaid, to the person to exist served, together with 2 copies of a notice and acknowledgment conforming essentially to Form xiv and a return envelope, postage stamp prepaid, addressed to the clerk.

         The plaintiff shall furnish the person making service with such copies of the complaint or order as are necessary and shall advance the costs of service. For service by certified mail, the plaintiff shall pay to the clerk a fee of twenty dollars for each complaint to exist served. For service by first class post, the plaintiff shall pay to the clerk a fee of 5 dollars for each complaint to be served.

         Service pursuant to subdivision (d)(one)(D) shall not be the basis for the entry of a default or a judgment by default unless the record contains a return receipt showing credence by the accused or a return envelope showing refusal of the registered or certified post by the accused. If delivery of the summons and complaint pursuant to subdivision (d)(1)(D) is refused, the clerk, promptly upon receipt of the observe of such refusal, shall post to the defendant, by first form mail service, postage prepaid, a copy of the summons and complaint and a notice that despite such refusal, the example will proceed and that judgment past default will be rendered confronting the defendant unless the defendant appears to defend the adapt. Any such default or judgment past default shall be fix bated pursuant to Rule 55(c) or Dominion threescore(b) if the defendant demonstrates to the courtroom that the return receipt was signed past or delivery was refused past an unauthorized person. The find and acquittance of receipt of the summons and complaint pursuant to subdivision (d)(1)(E) shall exist executed in the way prescribed on Form 14. Unless skillful crusade is shown for failure to complete and return the notice and acknowledgment of receipt of summons and complaint pursuant to subdivision (d)(1)(E) within twenty (twenty) days afterwards mailing, the court may social club the payment of price of personal service by the person served. Service pursuant to subdivision (d)(one)(E) shall non be the ground for entry of default or a judgment by default unless the record contains a notice and acknowledgment of receipt of the summons and complaint. If no acknowledgment of service pursuant to subdivision (d)(1)(E) is received by the clerk within 20 (20) days after the date of mailing, service of such summons and complaint shall exist made under subdivisions (d)(i)(A), (B), (C), or (D).

   2. Infants and incompetents under 14 years. — Upon an infant or incompetent younger than 14 years of age, by delivering a copy of the summons and complaint to the baby'south or incompetent's guardian or conservator resident in the State; or, if there exist no such guardian or conservator, then to either the infant's or incompetent's male parent or mother if they be found. If there is no such guardian or conservator and if the male parent or mother cannot be found, service of the summons and complaint shall be made upon a guardian ad litem appointed under Rule 17(c). Simply if any of the persons upon whom service is directed to exist fabricated by this paragraph is a plaintiff, and so service shall be upon the person who stands first in the order named in this paragraph who is not a plaintiff.
   3. Infants and incompetents 14 years or older. — Upon an babe or incompetent 14 years of age or older, by making service equally provided in paragraph (two) in a higher place, and in improver by making service upon the infant or incompetent equally provided in paragraph (ane) above.
   4. Convicts. — Upon a person confined in the penitentiary of this or any other state, or of the United states, past delivering a copy of the summons and complaint to that person'southward committee, guardian, or like fiduciary resident in the State; or, if there be no such committee, guardian, or like fiduciary, or if the committee, guardian, or like fiduciary is a plaintiff, service of process shall exist made upon a guardian ad litem appointed nether Rule 17(c).
   5. Domestic private corporations. — Upon a domestic private corporation,
      1. by delivering or mailing in accordance with paragraph (1) in a higher place a re-create of the summons and complaint to an officer, director, or trustee thereof; or, if no such officer, director, or trustee be institute, by delivering a copy thereof to whatsoever agent of the corporation including, in the case of a railroad company, a depot or station agent in the bodily employment of the company; simply excluding, in the example of an insurance company, a local or soliciting agent; or
      2. by delivering or mailing in accordance with paragraph (ane) above a copy thereof to any agent or attorney in fact authorized by appointment or by statute to receive or accept service in its behalf.
   6. Domestic public corporations. —
      1. Upon a city, town, or village, by delivering or mailing in accordance with paragraph (1) in a higher place a copy of the summons and complaint to its mayor, urban center manager, recorder, clerk, treasurer, or any member of its council or board of commissioners;
      2. Upon a county commission of any canton or other tribunal created to transact canton business, by delivering or mailing in accordance with paragraph (1) above a copy of the summons and complaint to any commissioner or the clerk thereof or, if they be absent-minded, to the prosecuting attorney of the county;
      3. Upon a board of educational activity, by delivering or mailing in accord with paragraph (1) above a copy of the summons and complaint to the president or any member thereof or, if they be absent-minded, to the prosecuting attorney of the county;
      4. Upon any other domestic public corporation, (i) by delivering or mailing in accordance with paragraph (1) above a copy of the summons and complaint to any officer, director, or governor thereof, or (2) past delivering or mailing in accord with paragraph (1) above a copy thereof to an agent or chaser in fact authorized by appointment or by statute to receive or take service in its behalf.
   7. Foreign corporations and business organisation trusts qualified to do concern. — Upon a foreign corporation, including a business trust, which has qualified to do business in the State, by delivering or mailing in accord with paragraph (i) to a higher place a copy of the summons and complaint every bit provided in Dominion 4(d)(v).
   8. Foreign corporations and business concern trusts not qualified to practise business organization. — Upon a foreign corporation, including a business trust, which has non qualified to do business in the Country,
      1. past delivering or mailing in accordance with paragraph (ane) above a copy of the summons and complaint to any officeholder, director, trustee, or amanuensis of such corporation; or
      2. by delivering or mailing in accordance with paragraph (1) above copies thereof to whatsoever agent or attorney in fact authorized past appointment or by statute to receive or accept service in its behalf.
   9. Unincorporated associations. — Upon an unincorporated clan which is subject to suit nether a common name, by delivering a copy of the summons and complaint to whatsoever officer, director, or governor thereof, or past delivering or mailing in accordance with paragraph (1) above a copy of the summons and complaint to any agent or attorney in fact authorized by engagement or by statute to receive or accept service in its behalf; or, if no such officer, director, governor, or appointed or statutory agent or attorney in fact be found, then past delivering or mailing in accordance with paragraph (1) higher up a copy of the summons and complaint to any member of such association and publishing notice of the pendency of such action in one case a week for ii successive weeks in the newspaper of general circulation in the county wherein such activeness is pending. Proof of publication of such notice is made past filing the publisher's certificate of publication with the court.
5. Constructive service. —
   1. Service by publication. — If the plaintiff shall file with the courtroom an affirmation:
      1. That the defendant is a foreign corporation or concern trust for which no officer, director, trustee, agent, or appointed or statutory agent or attorney in fact is plant in the State upon whom service may be had; or
      2. That the defendant is a nonresident of the State for whom no agent, or appointed or statutory agent or chaser in fact is establish in the State upon whom service may be had; or
      3. That the plaintiff has used due diligence to ascertain the residence or whereabouts of the defendant, without upshot; or
      4. That procedure, delivered to the sheriff of the canton in which the defendant resides or is, has twice been delivered to such officer and has been returned without existence executed; or
      5. That there are or may be persons, other than those named in the complaint as plaintiff and defendant, interested in the subject affair of the action, whose names are unknown to the plaintiff and who are made defendants past the full general clarification of unknown defendants; then clerk shall enter an guild of publication against such named and unknown defendants. Every gild of publication shall state the title of the action; the object thereof; the name and accost of the plaintiff's attorney, if any; that a copy of the complaint may be obtained from the clerk; and that each named and unknown accused must appear and defend on or before a date set along in the lodge, which shall be not fewer than thirty days later on the first publication thereof; otherwise, that judgment by default volition exist rendered against the defendants at any fourth dimension thereafter. Every such order of publication shall be published once a week for ii successive weeks (or for such period as may be prescribed by statute, whichever period is longer) in a paper of general circulation in the canton wherein such activity is pending. Proof of service by publication is made by filing the publisher'due south certificate of publication with the court.
   2. Service by mailing. — When plaintiff knows the residence of a accused upon whom service has been unsuccessfully attempted equally described in Rule 4(e)(ane)(D), or when plaintiff knows the residence of a nonresident defendant or the principal office of a nonresident defendant foreign corporation or business trust for which no officer, director, trustee, amanuensis, or appointed or statutory agent or attorney in fact is establish in the Country upon whom service may exist had, plaintiff shall obtain constructive service of the summons and complaint upon such defendant by the method ready along in Rule for (d)(1)(D). The summons in such instance shall notify the defendant that the defendant must announced and defend within thirty days of the date of mailing pursuant to Rule 4(d)(1)(D); otherwise, that judgment by default will exist rendered confronting the defendant at any time thereafter. However, service pursuant to Rule four(d)(ane)(D) shall not be the ground for the entry of a judgment by default unless the record contains a render receipt showing acceptance by the accused or a return envelope showing refusal of the certified mail by the accused. If delivery of the summons and complaint sent by the certified post is refused, the clerk, promptly upon detect of such refusal, shall mail service to the defendant, first course mail, postage prepaid, a copy of the summons and complaint and a notice that despite such refusal the case will go on and that judgment by default will be rendered against defendant unless defendant appears to defend the suit. If plaintiff is unable to obtain service of the summons and complaint upon such defendant past use of the method set up forth in Rule 4(d)(1)(D), then, upon affidavit to such effect filed with the court, the clerk shall event an social club of publication, and the procedures described in subdivision (e)(1) shall exist followed to effectuate constructive service.
6. Personal service outside State. — Personal service of a re-create of the summons and complaint may be made outside of this State on any defendant. If any such defendant be and so a resident of this State and if the plaintiff shall during the pendency of the action file with the court an affirmation setting forth facts showing that the accused is such a resident, such service shall accept the aforementioned result as personal service within this State and inside the canton of the accused's residence; otherwise, such service shall have the same effect as effective service. In either case, the summons shall notify the defendant that the defendant must announced and defend within 30 days after service, otherwise judgment by default will exist rendered against the accused at whatever time thereafter.
7. Summons; service thereof in improver to constructive service. — The plaintiff may, at any time before judgment, accept a copy of the summons and complaint served on a accused in the manner provided by subdivisions (d) or (f) of this rule, although effective service under subdivision (e) of this rule has been made. After such service nether subdivision (d) of this rule, the action shall proceed every bit in other cases of personal or substituted service within the Land; and after such service under subdivision (f) of this dominion, the activity shall keep as in other cases of personal or effective service.
8. Process part of tape. — Summonses, complaints, proofs of service and returns endorsed thereon, all orders and notices served or published, all proofs of service and certificates of publication, and all other papers filed relating to such process, orders, and notices, are a role of the record of an activeness for all purposes.
9. Proof of service or publication. — The person serving the procedure or order or publishing a notice or order shall make proof of service of publication to the courtroom promptly and in whatever event within the fourth dimension during which the person served must respond to the process, discover, or order. If service is made by a person other than the sheriff or clerk, that person shall brand proof thereof by affidavit. Failure to brand proof of service or publication within the fourth dimension required does not affect the validity of the service of the process, notice, or order.
10. Subpoena. — At any time in its discretion and upon such terms as it deems only, the court may allow whatever process, detect, or guild, or proof of service or publication thereof to be amended, unless it clearly appears that textile prejudice would upshot to the substantial rights of the party against whom the process, notice, or club issued or was entered.
11. Time limit for service. — If service of the summons and complaint is not made upon a defendant within 120 days afterward the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or directly that service be effective inside a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

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Service of other process

1. More often than not. — Whenever an order of court provides for service of a rule, or order in lieu of summons or a dominion, upon a party, service shall be made in the manner provided in Rule 4(d), unless the order prescribes a different fashion of service. Dominion 45 governs the service of subpoenas.
2. Process role of record. — Original, mesne, and concluding writs and process of every nature, and proofs of service and returns endorsed thereon, and all orders and notices served or published, and all proofs of service and certificates of publication and all other papers filed in relation to such process, orders, and notices, are a part of the tape of an action for all purposes.

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Service and filing of pleadings and other papers

1. Service: when required. — Except as otherwise provided in these rules, every order required past its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offering of judgment, designation of record on appeal, and like paper shall be served upon each of the parties. For purposes of this rule, guardians advertisement litem are considered parties. No service demand 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 iv.
2. Same: how fabricated. — Whenever under these rules service is required or permitted to be made upon a political party represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the chaser or upon a party shall be fabricated past delivering a copy to the chaser or political party; or by mailing it to the chaser or political party at the attorney's or party's last-known address, or, if no address is known, by leaving it with the clerk of the court; or by facsimile manual to the attorney or party pursuant to the West Virginia Supreme Courtroom of Appeals Rules for Filing and Service past Facsimile Manual (see Editor's Notation). Commitment of a copy inside this rule means: handing it to the attorney or to the party; or leaving it at the chaser's or party'southward role with a clerk or other person in charge thereof; or, if the office is closed or the person to be served has no office, leaving it at the person's abode or usual place of dwelling house with some member of the person's family to a higher place the age of 16 years. Service by mail is complete upon mailing.
3. Same: numerous defendants. — In whatever action in which there are unusually large numbers of defendants, the courtroom, upon move or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need non be made as between the defendants and that any cantankerous-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be accounted to be denied or avoided by all other parties and that the filing of whatever such pleading and service thereof upon the plaintiff constitutes due observe of it to the parties. A copy of every such order shall be served upon the parties in such manner and class as the court directs.
4. Filing; certificate of service. —
   1. All papers later the complaint required to be served upon a political party together with a document of service, shall be filed with the courtroom within a reasonable time after service.
   2. Unless filing is required by the court on motility or upon its own initiative, depositions, interrogatories, requests for admissions, requests for production and entry, and answers and responses thereto shall not exist filed. Unless required to be filed for issuance of a subpoena for a deposition, a notice of deposition need non be filed. Certificates of service of discovery materials shall exist filed.
   3. Unless otherwise stipulated or ordered, the political party taking the deposition or obtaining any fabric through discovery is responsible for its custody, preservation, and commitment to the court if needed or ordered. Such responsibleness shall not cease until one year later on final disposition of the activity. The responsibility shall non terminate upon dismissal of any political party while the action is pending. The custodial responsibility of a dismissed party may exist discharged by stipulation of the parties to transfer the custody of the discovered material to one or more of the remaining parties.
5. Filing with the courtroom defined. — The filing of papers with the court equally required by these rules shall be made past filing them with the clerk of the court, who shall note thereon the filing date, except that the judge may permit the papers to exist filed with the judge, in which event the gauge shall note thereon the filing date and forthwith transmit them to the office of the clerk; the annotation by the clerk or the judge of the filing appointment on any such newspaper constitutes the filing of such paper, and such paper then becomes a part of the record in the action without any club of the courtroom. Filing by facsimile is permitted pursuant to the Due west Virginia Supreme Court of Appeals Rules for Filing and Service by Facsimile Manual. Electronic filing and service is permitted in limited circumstances pursuant to Trial Court Rule 15.

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Fourth dimension

1. Ciphering. — In computing any period of time prescribed or allowed by these rules, past the local rules of whatsoever court, by order of courtroom, or by any applicable statute, the 24-hour interval of the act, effect, or default from which the designated period of time begins to run shall not exist included. The last solar day of the menstruum and so computed shall be included, unless information technology is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the finish of the next day which is not a Saturday, a Sunday or a legal holiday. When the menses of time prescribed or immune is fewer than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule and in Rule 77(c), "legal holiday" includes New Year's Day, Martin Luther King'due south Birthday, Lincoln's Birthday, Washington's Altogether, Memorial Day, West Virginia Day, Independence Day, Labor Twenty-four hours, Columbus Day, Veteran's Solar day, Thanksgiving Day, Christmas Mean solar day, any twenty-four hour period on which a full general, special or chief ballot is held in the state or in the canton in which the circuit court sits, and whatsoever other mean solar day appointed as a holiday by the Governor or by the President of the The states as a mean solar day of special observance or thanksgiving, or a twenty-four hour period for the full general cessation of business.
2. Enlargement. — When by these rules or by a notice given thereunder or by order of court an deed is required or immune to be washed at or inside a specified fourth dimension, all the parties to the activity, past written stipulation filed with the court, may concur at any time to a different period, or the court for cause shown may at any time in its discretion (one) with or without motility or discover social club the period enlarged if request therefor is made before the expiration of the flow originally prescribed or equally extended by a previous order, or (2) upon motion made after the expiration of the specified flow permit the act to be done where the failure to act was the result of excusable neglect; just it may not extend the time for taking any action under Rules 50(b), 52(b), 59(b), (d) and (e), and 60(b), except to the extent and under the atmospheric condition stated in them.
3. Unaffected by expiration of term. — The catamenia of time provided for the doing of any act or the taking of whatever proceeding is not affected or limited by the connected existence or expiration of a term of court. The continued being or expiration of a term of court in no way affects the power of a court to do any human action or take whatever proceeding in whatsoever civil action which has been pending before it.
4. For motions — affidavits —
   1. Service; motion. — Unless a different period is set up by these rules or by the court, a written motion (other than ane which may be heard ex parte), observe of the hearing on the motion, and whatsoever supporting brief or affidavits shall exist served every bit follows:
      1. at least nine days before the time set for the hearing, if served by post, or
      2. at to the lowest degree 7 days before the time set for the hearing, if served by hand delivery or by fax to the opposing attorney, or if left with a person in charge at the opposing attorney's office, or in the issue that the opposing party is non represented by counsel, then if served by mitt delivery or by fax to the opposing party, or if left at the party's usual residence with a person capable of accepting service pursuant to Dominion 4(d)(ane)(B).
   2. Service; response. — Unless a different period is set by these rules or past the court, any response to a written motion, including whatever supporting cursory or affidavits, shall be served as follows:
      1. at least four days before the time set for the hearing, if served by mail, or
      2. at to the lowest degree ii days before the time set up for the hearing, if served by mitt delivery or by fax to the opposing attorney, or if left with a person in charge at the opposing attorney's function, or in the event that the opposing political party is non represented past counsel, so if served by mitt delivery or past fax to the opposing party, or if left at the party's usual residence with a person capable of accepting service pursuant to Rule iv(d)(1)(B).
   3. Filing. — Unless the court sets a different catamenia, a written motion, observe of hearing on the motion, and any supporting briefs or affidavits shall be filed at least 7 days before the hearing, and whatsoever response to a motion and supporting briefs or affidavits shall be filed at least 2 days before the hearing.
5. Additional time afterward service by mail. — Whenever a party has the correct or is required to do some act or take some proceedings within a prescribed period afterward the service of a detect or other newspaper upon the party and the observe or paper is served upon the party past mail, three days shall be added to the prescribed period.

How Does Rule 4 Apply To This Case? Was The Service Valid? Why Or Why Not?,

Source: http://www.courtswv.gov/legal-community/court-rules/civil-procedure/II.html

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