| NORTH CAROLINA
GENERAL STATUTES |
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| Rule 4. Process.
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| (a) |
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Summons - Issuance; who may serve. Upon the filing of the complaint,
summons shall be issued forthwith, and in any event within five days. The
complaint and summons shall be delivered to some proper person for service.
In this State, such proper person shall be the sheriff of the county
where service is to be made or some other person duly authorized by law
to serve summons. Outside this State, such proper person shall be anyone
who is not a party and is not less than 21 years of age or anyone duly authorized
to serve summons by the law of the place where service is to be made.
Upon request of the plaintiff separate or additional summons shall be issued
against any defendants. A summons is issued when, after being filled out
and dated, it is signed by the officer having authority to do so. The date
the summons bears shall be prima facie evidence of the date of issue. |
| (b) |
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Summons -- Contents. The summons
shall run in the name of the State and be dated and signed by the clerk,
assistant clerk, or deputy clerk of the court in the county in which the
action is commenced. It shall contain the title of the cause and the name
of the court and county wherein the action has been commenced. It shall
be directed to the defendant or defendants and shall notify each defendant
to appear and answer within 30 days after its service upon him and further
that if he fails so to appear, the plaintiff will apply to the court for
the relief demanded in the complaint. It shall set forth the name and address
of plaintiff's attorney, or if there be none, the name and address of plaintiff.
If a request for admission is served with the summons, the summons shall
so state. |
| (c) |
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Summons -- Return. Personal service
or substituted personal service of summons as prescribed by Rule 4(j)(1)
a and b must be made within 30 days after the date of the issuance of summons,
except that in tax and assessment foreclosures under G.S. 47-108.25 or G.S.
105-374 the time allowed for service is 60 days. When a summons has been
served upon every party named in the summons, it shall be returned immediately
to the clerk who issued it, with notation thereon of its service.
Failure to make service within the time allowed or failure
to return a summons to the clerk after it has been served on every party
named in the summons shall not invalidate the summons. If the summons is
not served within the time allowed upon every party named in the summons,
it shall be returned immediately upon the expiration of such time by the
officer to the clerk of the court who issued it with notation thereon of
its nonservice and the reasons therefor as to every such party not served,
but failure to comply with this requirement shall not invalidate the summons.
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| (d) |
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Summons -- Extension; endorsement, alias
and pluries. When any defendant in a civil action is not served within
the time allowed for service, the action may be continued in existence as
to such defendant by either of the following methods of extension: |
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(1) |
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The plaintiff may secure an endorsement
upon the original summons for an extension of time within which to complete
service of process. Return of the summons so endorsed shall be in the same
manner as the original process. Such endorsement may be secured within 90
days after the issuance of summons or the date of the last prior endorsement,
or |
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(2) |
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The plaintiff may send out an alias or pluries
summons returnable in the same manner as the original process. Such alias
or pluries summons may be sued out at any time within 90 days after the
date of issue of the last preceding summons in the chain of summonses or
within 90 days of the last prior endorsement. Provided, in tax and assessment
foreclosures under G.S. 47- 108.25 and G.S. 105-374, the first endorsement
may be made at any time within two years after the issuance of the original
summons, and subsequent endorsements may thereafter be made as in other
actions; or an alias or pluries summons may be sued out at any time within
two years after the issuance of the original summons, and after the issuance
of such alias or pluries summons, the chain of summonses may be kept up
as in any other action. Provided, for service upon a defendant in a place
not within the United States, the first endorsement may be made at any time
within two years after the issuance of the original summons, and subsequent
endorsements may thereafter be made at least once every two years; or an
alias or pluries summons may be sued out at any time within two years after
the issuance of the original summons, and after the issuance of such alias
or pluries summons, the chain of summonses may be kept up as in any other
action if sued out within two years of the last preceding summons in the
chain of summonses or within two years of the last prior endorsement. Provided,
further, the methods of extension may be used interchangeably in any case
and regardless of the form of the preceding extension. |
| (e) |
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Summons -- Discontinuance. When there
is neither endorsement by the clerk nor issuance of alias or pluries summons
within the time specified in Rule 4(d), the action is discontinued as to
any defendant not theretofore served with summons within the time allowed.
Thereafter, alias or pluries summons may issue, or an extension be endorsed
by the clerk, but, as to such defendant, the action shall be deemed to have
commenced on the date of such issuance or endorsement. |
| (f) |
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Summons -- Date of multiple summonses.
If the plaintiff shall cause separate or additional summonses to be issued
as provided in Rule 4(a), the date of issuance of such separate or additional
summonses shall be considered the same as that of the original summons for
purposes of endorsement or alias summons under Rule 4(d). |
| (g) |
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Summons -- Docketing by clerk. The
clerk shall keep a record in which he shall note the day and hour of issuance
of every summons, whether original, alias, pluries, or endorsement thereon.
When the summons is returned, the clerk shall note on the record the date
of the return and the fact as to service or non-service. |
| (h) |
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Summons -- When proper officer not available.
If at any time there is not in a county a proper officer, capable of executing
process, to whom summons or other process can be delivered for service,
or if a proper officer refuses or neglects to execute such process, or if
such officer is a party to or otherwise interested in the action or proceeding,
the clerk of the issuing court, upon the facts being verified before him
by written affidavit of the plaintiff or his agent or attorney, shall appoint
some suitable person who, after he accepts such process for service, shall
execute such process in the same manner, with like effect, and subject to
the same liabilities, as if such person were a proper officer regularly
serving process in that county. |
| (h1) |
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Summons -- When process returned unexecuted.
If a proper officer returns a summons or other process unexecuted, the plaintiff
or his agent or attorney may cause service to be made by anyone who is not
less than 21 years of age, who is not a party to the action, and who is
not related by blood or marriage to a party to the action or to a person
upon whom service is to be made. This subsection shall not apply to executions
pursuant to Article 28 of Chapter 1 or summary ejectment pursuant to Article
3 of Chapter 42 of the General Statutes. |
| (i) |
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Summons -- Amendment. At any time,
before or after judgment, 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 substantial rights of the party against whom the process issued. |
| (j) |
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Process -- Manner of service to exercise
personal jurisdiction. In any action commenced in a court of this State
having jurisdiction of the subject matter and grounds for personal jurisdiction
as provided in G.S. 1-75.4, the manner of service of process within or without
the State shall be as follows: |
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(1) |
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Natural Person. -- Except as provided in
subsection (2) below, upon a natural person: |
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a. |
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By delivering a copy of the summons and
of the complaint to him or by leaving copies thereof at the defendant's
dwelling house or usual place of abode with some person of suitable age
and discretion then residing therein; or |
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b. |
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By delivering a copy of the summons and
of the complaint to an agent authorized by appointment or by law to be served
or to accept service of process or by serving process upon such agent or
the party in a manner specified by any statute. |
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c. |
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By mailing a copy of the summons and of the complaint, registered or certified
mail, return receipt requested, addressed to the party to be served, and
delivering to the addressee. |
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(2) |
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Natural Person under Disability. -- Upon
a natural person under disability by serving process in any manner prescribed
in this section (j) for service upon a natural person and, in addition,
where required by paragraph a or b below, upon a person therein designated.
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a. |
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Where the person under disability is a minor,
process shall be served separately in any manner prescribed for service
upon a natural person upon a parent or guardian having custody of the child,
or if there be none, upon any other person having the care and control of
the child. If there is no parent, guardian, or other person having care
and control of the child when service is made upon the child, then service
of process must also be made upon a guardian ad litem who has been appointed
pursuant to Rule 17. |
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b. |
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If the plaintiff actually knows that a person
under disability is under guardianship of any kind, process shall be served
separately upon his guardian in any manner applicable and appropriate under
this section (j). If the plaintiff does not actually know that a guardian
has been appointed when service is made upon a person known to him to be
incompetent to have charge of his affairs, then service of process must
be made upon a guardian ad litem who has been appointed pursuant to Rule
17. |
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(3) |
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The State. -- Upon the State by personally
delivering a copy of the summons and of the complaint to the Attorney General
or to a deputy or assistant attorney general or by mailing a copy of the
summons and of the complaint, registered or certified mail, return receipt
requested, addressed to the Attorney General or to a deputy or assistant
attorney general. |
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(4) |
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An Agency of the State. -- |
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a. |
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Upon an agency of the State by personally
delivering a copy of the summons and of the complaint to the process agent
appointed by the agency in the manner hereinafter provided or by mailing
a copy of the summons and of the complaint, registered or certified mail,
return receipt requested, addressed to said process agent. |
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b. |
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Every agency of the State shall appoint
a process agent by filing with the Attorney General the name and address
of an agent upon whom process may be served. |
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c. |
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If any agency of the State fails to comply
with paragraph b above, then service upon such agency may be made by personally
delivering a copy of the summons and of the complaint to the Attorney General
or to a deputy or assistant attorney general or by mailing a copy of the
summons and of the complaint, registered or certified mail, return receipt
requested, addressed to the Attorney General, or to a deputy or assistant
attorney general. |
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d. |
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For purposes of this rule, the term "agency
of the State" includes every agency, institution, board, commission, bureau,
department, division, council, member of Council of State, or officer of
the State government of the State of North Carolina, but does not include
counties, cities, towns, villages, other municipal corporations or political
subdivisions of the State, county or city boards of education, other local
public districts, units, or bodies of any kind, or private corporations
created by act of the General Assembly. |
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(5) |
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Counties, Cities, Towns, Villages and Other
Local Public Bodies. a. Upon a city, town, or village by personally delivering
a copy of the summons and of the complaint to its mayor, city manager or
clerk or by mailing a copy of the summons and of the complaint, registered
or certified mail, return receipt requested, addressed to its mayor, city
manager or clerk. |
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a. |
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Upon a city, town, or village by personally
delivering a copy of the summons and of the complaint to its mayor, city
manager or clerk or by mailing a copy of the summons and of the complaint,
registerd or certified mail, return receipt requested, addressed to its
mayor, city manager or clerk. |
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b. |
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Upon a county by personally delivering a
copy of the summons and of the complaint to its county manager or to the
chairman, clerk or any member of the board of commissioners for such county
or by mailing a copy of the summons and of the complaint, registered or
certified mail, return receipt requested, addressed to its county manager
or to the chairman, clerk, or any member of this board of commissioners
for such county. |
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c. |
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Upon any other political subdivision of
the State, any county or city board of education, or other local public
district, unit, or body of any kind (i) by personally delivering a copy
of the summons and of the complaint to an officer or director thereof, or
(ii) by personally delivering a copy of the summons and of the complaint
to an agent or attorney- in-fact authorized by appointment or by statute
to be served or to accept service in its behalf, or (iii) by mailing a copy
of the summons and of the complaint, registered or certified mail, return
receipt requested, addressed to the officer, director, agent, or attorney-in-fact
as specified in (i) and (ii). |
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d. |
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In any case where none of the officials,
officers or directors specified in paragraphs a, b and c can, after due
diligence, be found in the State, and that fact appears by affidavit to
the satisfaction of the court, or a judge thereof, such court or judge may
grant an order that service upon the party sought to be served may be made
by personally delivering a copy of the summons and of the complaint to the
Attorney General or any deputy or assistant attorney general of the State
of North Carolina, or by mailing a copy of the summons and of the complaint,
registered or certified mail, return receipt requested, addressed to the
Attorney General or any deputy or assistant attorney general of the State
of North Carolina. |
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(6) |
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Domestic or Foreign Corporation. -- Upon
a domestic or foreign corporation: |
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a. |
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By delivering a copy of the summons and of the complaint to an officer,
director, or managing agent of the corporation or by leaving copies
thereof in the office of such officer, director, or managing agent with
the person who is apparently in charge of the office; or |
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b. |
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By delivering a copy of the summons and
of the complaint to an agent authorized by appointment or by law to be served
or to accept service or [of] process or by serving process upon such agent
or the party in a manner specified by any statute. |
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c. |
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By mailing a copy of the summons and of
the complaint, registered or certified mail, return receipt requested, addressed
to the officer, director or agent to be served as specified in paragraphs
a and b. |
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(7) |
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Partnerships. -- Upon a general or limited
partnership: |
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a. |
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By delivering a copy of the summons and
of the complaint to any general partner, or to any attorney-in-fact or agent
authorized by appointment or by law to be served or to accept service of
process in its behalf, or by mailing a copy of the summons and of the complaint,
registered or certified mail, return receipt requested, addressed to any
general partner, or to any attorney-in-fact or agent authorized by appointment
or by law to be served or to accept service of process in its behalf, or
by leaving copies thereof in the office of such general partner, attorney-in-fact
or agent with the person who is apparently in charge of the office. |
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b. |
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If relief is sought against a partner specifically,
a copy of the summons and of the complaint must be served on such partner
as provided in this section (j). |
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(8) |
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Other Unincorporated Associations and Their
Officers. -- Upon any unincorporated association, organization, or society
other than a partnership: |
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a. |
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By delivering a copy of the summons and
of the complaint to an officer, director, managing agent or member of the
governing body of the unincorporated association, organization or society,
or by leaving copies thereof in the office of such officer, director, managing
agent or member of the governing body with the person who is apparently
in charge of the office; or |
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b. |
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By delivering a copy of the summons and
of the complaint to an agent authorized by appointment or by law to be served
or to accept service of process or by serving process upon such agent or
the party in a manner specified by any statute. |
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c. |
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By mailing a copy of the summons and of
the complaint, registered or certified mail, return receipt requested, addressed
to the officer, director, agent or member of the governing body to be served
as specified in paragraphs a and b. |
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(9) |
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Service upon a foreign state or a political
subdivision, agency, or instrumentality thereof shall be effected pursuant
to 28 U.S.C. § 1608. |
| (j1) |
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Service by publication on party that
cannot otherwise be served. A party that cannot with due diligence be
served by personal delivery or registered or certified mail may be served
by publication. Except in actions involving jurisdiction in rem or quasi
in rem as provided in section (k), service of process by publication shall
consist of publishing a notice of service of process by publication once
a week for three successive weeks in a newspaper that is qualified for legal
advertising in accordance with G.S. 1-597 and G.S. 1-598 and circulated
in the area where the party to be served is believed by the serving party
to be located, or if there is no reliable information concerning the location
of the party then in a newspaper circulated in the county where the action
is pending. If the party's post-office address is known or can with reasonable
diligence be ascertained, there shall be mailed to the party at or immediately
prior to the first publication a copy of the notice of service of process
by publication. The mailing may be omitted if the post-office address cannot
be ascertained with reasonable diligence. Upon completion of such service
there shall be filed with the court an affidavit showing the publication
and mailing in accordance with the requirements of G.S. 1-75.10(2), the
circumstances warranting the use of service by publication, and information,
if any, regarding the location of the party served.
The notice of service of process by publication shall
(i) designate the court in which the action has been commenced and the title
of the action, which title may be indicated sufficiently by the name of
the first plaintiff and the first defendant; (ii) be directed to the defendant
sought to be served; (iii) state either that a pleading seeking relief against
the person to be served has been filed or has been required to be filed
therein not later than a date specified in the notice; (iv) state the nature
of the relief being sought; (v) require the defendant being so served to
make defense to such pleading within 40 days after a date stated in the
notice, exclusive of such date, which date so stated shall be the date of
the first publication of notice, or the date when the complaint is required
to be filed, whichever is later, and notify the defendant that upon his
failure to do so the party seeking service of process by publication will
apply to the court for the relief sought; (vi) in cases of attachment, state
the information required by G.S. 1- 440.14; (vii) be subscribed by the party
seeking service or his attorney and give the post-office address of such
party or his attorney; and (viii) be substantially in the following form:
NOTICE OF SERVICE OF PROCESS BY PUBLICATION
STATE OF NORTH CAROLINA _____________ COUNTY
In the _____________ Court
[Title of action or special proceeding] To [Person to be served]:
Take notice that a pleading seeking relief against you (has been filed)
(is required to be filed not later than __________, 20____) in the above-entitled
(action) (special proceeding). The nature of the relief being sought is
as follows: (State nature).
You are required to make defense to such pleading not later than (__________,
20____) and upon your failure to do so the party seeking service against
you will apply to the court for the relief sought.
This, the __________ day of __________, 20____
___________ (Attorney) (Party)
____________ (Address) |
| (j2) |
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Proof of service. Proof of service
of process shall be as follows: |
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(1) |
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Personal Service. -- Before judgment by
default may be had on personal service, proof of service must be provided
in accordance with the requirements of G.S. 1-75.10(1). |
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(2) |
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Registered or Certified Mail. -- Before
judgment by default may be had on service by registered or certified mail,
the serving party shall file an affidavit with the court showing proof of
such service in accordance with the requirements of G.S. 1-75.10(4). This
affidavit together with the return receipt signed by the person who received
the mail if not the addressee raises a presumption that the person who received
the mail and signed the receipt was an agent of the addressee authorized
by appointment or by law to be served or to accept service of process or
was a person of suitable age and discretion residing in the addressee's
dwelling house or usual place of abode. In the event the presumption described
in the preceding sentence is rebutted by proof that the person who received
the receipt at the addressee's dwelling house or usual place of abode was
not a person of suitable age and discretion residing therein, the statute
of limitation may not be pleaded as a defense if the action was initially
commenced within the period of limitation and service of process is completed
within 60 days from the date the service is declared invalid. Service shall
be complete on the day the summons and complaint are delivered to the address.
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(3) |
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Publication. -- Before judgment by default
may be had on service by publication, the serving party shall file an affidavit
with the court showing the circumstances warranting the use of service by
publication, information, if any, regarding the location of the party served
which was used in determining the area in which service by publication was
printed and proof of service in accordance with G.S. 1-75.10(2). |
| (j3) |
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Service in a foreign country. Unless
otherwise provided by federal law, service upon a defendant, other than
an infant or an incompetent person, may be effected in a place not within
the United States: |
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(1) |
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By any internationally agreed means reasonably
calculated to give notice, such as those means authorized by the Hague Convention
on the Service Abroad of Judicial and Extrajudicial Documents; or |
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(2) |
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If there is no internationally agreed means
of service or the applicable international agreement allows other means
of service, provided that service is reasonably calculated to give notice:
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a. |
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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; |
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b. |
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As directed by the foreign authority in
response to a letter rogatory or letter of request; or |
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c. |
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Unless prohibited by the law of the foreign
country, by |
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1. |
Delivery to the individual personally of
a copy of the summons and the complaint and, upon a corporation, partnership,
association or other such entity, by delivery to an officer or a managing
or general agent; |
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2. |
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 |
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(3) |
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By other means not prohibited by international
agreement as may be directed by the court. Service under subdivision (2)c.1.
or (3) of this subsection may be made by any person authorized by subsection
(a) of this Rule or who is designated by order of the court or by the foreign
court. On request, the clerk shall deliver the summons to the plaintiff
for transmission to the person or the foreign court or officer who will
make the service. Proof of service may be made as prescribed in G.S. 1-75.10,
by the order of the court, or by the law of the foreign country. Proof of
service by mail shall include an affidavit or certificate of addressing
and mailing by the clerk of court. |
| (j4) |
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Process or judgment by default not to
be attacked on certain grounds. No party may attack service of process
or a judgment of default on the basis that service should or could have
been effected by personal service rather than service by registered or certified
mail. No party that receives timely actual notice may attack a judgment
by default on the basis that the statutory requirement of due diligence
as a condition precedent to service by publication was not met. |
| (j5) |
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Personal jurisdiction by acceptance of
service. Any party personally, or through the persons provided in Rule
4(j), may accept service of process by notation of acceptance of service
together with the signature of the party accepting service and the date
thereof on an original or copy of a summons, and such acceptance shall have
the same force and effect as would exist had the process been served by
delivery of copy and summons and complaint to the person signing said acceptance.
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| (k) |
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Process -- Manner of service to exercise
jurisdiction in rem or quasi in rem. In any action commenced in a court
of this State having jurisdiction of the subject matter and grounds for
the exercise of jurisdiction in rem or quasi in rem as provided in G.S.
1-75.8, the manner of service of process shall be as follows: |
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(1) |
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Defendant Known. -- If the defendant is
known, he may be served in the appropriate manner prescribed for service
of process in section (j), or, if otherwise appropriate section (j1); except
that the requirement for service by publication in (j1) shall be satisfied
if made in the county where the action is pending and proof of service is
made in accordance with section (j2). |
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(2) |
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Defendant Unknown. -- If the defendant is
unknown, he may be designated by description and process may be served by
publication in the manner provided in section (j1), except that the requirement
for service by publication in (j1) shall be satisfied if made in the county
where the action is pending and proof of service is made in accordance with
section (j2).
(1967, c. 954, s. 1; 1969, c. 895, ss. 1-4; 1971, c. 962; c. 1156, s. 2;
1975, cc. 408, 609; 1977, c. 910, ss. 1-3; 1981, c. 384, s. 3; c. 540, ss.
1-8; 1983, c. 679, ss. 1, 2; 1989, c. 330; c. 575, ss. 1, 2; 1995, c. 275,
s. 1; c. 389, ss. 2, 3; c. 509, s. 135.1(e), (f); 1997-469, s. 1; 1999-456,
s. 59.) |
| Rule 45. Subpoena.
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| (a) |
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For attendance of witnesses; issuances;
form. A subpoena for the purpose of obtaining the testimony of a witness
in a pending cause shall, except as hereinafter provided, be issued at the
request of any party by the clerk of superior court for the county in which
the hearing or trial is to be held. A subpoena shall be directed to the
witness, shall state the name of the court and the title of the action,
the name of the party at whose instance the witness is summoned, and shall
command the person to whom it is directed to attend and give testimony at
a time and place therein specified. The clerk shall issue a subpoena, or
a subpoena for the production of documentary evidence, signed but otherwise
in blank, to a party requesting it, who shall fill it in before service.
A subpoena for a witness or witnesses need not be signed by the clerk, and
is sufficient if signed by the party or his attorney. A subpoena for the
production of documentary evidence need not be signed by the clerk, and
is sufficient if signed by the attorney requesting the same. |
| (b) |
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Issuance by a judge. Such subpoena
may also be issued by any judge of the superior court, judge of the district
court, or magistrate. |
| (c) |
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For production of documentary evidence.
A subpoena may also command the person to whom it is directed to produce
the records, books, papers, documents, or tangible things designated therein.
Where the subpoena commands any custodian of public records to appear for
the sole purpose of producing certain records in his custody, the custodian
subpoenaed may, in lieu of a personal appearance, tender to the court by
registered mail certified copies of the records requested, together with
an affidavit by the custodian as to the authentication of the record tendered
or, if no such records are in his custody, an affidavit to that effect.
Any original or certified copy or affidavit delivered under the provisions
of this rule, unless otherwise objectionable, shall be admissible in any
action or proceeding without further certification or authentication. Where
the subpoena commands any custodian of hospital medical records (as defined
in G.S. 8-44.1) to appear for the sole purpose of producing certain records
in his custody, the custodian subpoenaed may, in lieu of a personal appearance,
tender to the presiding judge or designee by registered mail or by personal
delivery at no cost certified copies of the records requested, on or before
the time specified in the subpoena, together with a copy of the subpoena
and an affidavit by the custodian testifying to the identity and authenticity
of the records, that they are true and correct copies, and as appropriate,
that the records were made and kept in the regular course of business at
or near the time of the acts, conditions, or events recorded, and that they
were made by persons having knowledge of the information set forth; or if
no such records are in his custody, an affidavit to that effect. When the
copies of medical records are personally delivered, a receipt shall be obtained
from the person receiving the records. Any original or certified copy of
medical records, or affidavit, delivered according to the provisions of
this rule shall not be held inadmissible in any action or proceeding on
the grounds that it lacks certification, identification, or authentication,
and it shall be received as evidence if otherwise admissible. The copies
of the medical records so tendered shall not be open to inspection or copy
by any persons, except to the parties to the case or proceeding and their
attorneys in depositions, until ordered published by the judge at the time
of the hearing or trial. Nothing contained herein shall be construed to
waive the physician-patient privilege or to require any privileged communications
under law to be disclosed. The judge, upon motion to quash or modify made
promptly and in any event at or before the time specified in the subpoena
for compliance therewith, may |
| |
(1) |
|
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Quash or modify the subpoena if it is unreasonable
and oppressive and in such case may order the party in whose behalf the
subpoena is issued to pay the person to whom the subpoena is directed part
or all of his reasonable expenses including attorneys' fees or |
| |
(2) |
|
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Grant the motion unless the party in whose
behalf the subpoena is issued advances the reasonable cost of producing
the records, books, papers, documents, or tangible things. |
| (d) |
|
|
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Subpoena for taking depositions.
|
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(1) |
|
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Proof of service of a notice to take a deposition
as provided in Rules 30(a) and 31(a) constitutes a sufficient authorization
for the issuance by the clerk of the superior court for the county in which
the deposition is to be taken of subpoenas for the persons named or described
therein. The subpoena may command the person to whom it is directed to produce
designated records, books, papers, documents, or tangible things which constitute
or contain evidence relating to any of the matters within the scope of the
examination permitted by Rule 26(b), but in that event the subpoena will
be subject to the provisions of section (c) of Rule 26 and section (c) of
this rule. The person to whom the subpoena is directed may, within 10 days
after the service thereof or on or before the time specified in the subpoena
for compliance if such time is less than 10 days after service, serve upon
the attorney designated in the subpoena written objection to inspection
or copying of any or all of the designated materials. If objection is made,
the party serving the subpoena shall not be entitled to inspect and copy
the materials except pursuant to an order of the court from which the subpoena
was issued. The party serving the subpoena may, if objection has been made,
move upon notice to the deponent for an order at any time before or during
the taking of the deposition. |
| |
(2) |
|
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Repealed by Session Laws 1975, c. 762, s.
3. |
| (e) |
|
|
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Service. All subpoenas may be served by the sheriff, by his deputy,
by a coroner or by any other person not less than 18 years of age, who
is not a party. Service of a subpoena for the production of documentary
evidence may be made only by the delivery of a copy to the person named
therein or by registered or certified mail, return receipt requested. Service
of a subpoena for the attendance of a witness may be made by telephone communication
with the person named therein only by an authorized server who shall be
a sheriff, his designee who is not less than 18 years of age and not a party,
or coroner, or by delivery of a copy to the person named therein or by registered
or certified mail, return receipt requested, by any person authorized by
this section to serve subpoenas. Personal service shall be proved by return
of a sheriff, his deputy, or a coroner making service and by return under
oath of any other person making service. Service by telephone communication
shall be proved by return of the authorized process server, noting the method
of service. Service by registered or certified mail shall be proved by filing
the return receipt with the return. |
| (f) |
|
|
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Punishment for failure to obey. Failure
by any person without adequate cause to obey a subpoena served upon him
may be deemed a contempt of the court from which the subpoena issued. Failure
by a party without adequate cause to obey a subpoena served upon him shall
also subject such party to the sanctions provided in Rule 37(d).
(1967, c. 954, s. 1; 1969, c. 886, s. 1; 1971, c. 159; 1975, c. 762, s.
3; 1983, c. 665, s. 1; c. 722; 1989, c. 262, s. 1.) |
| 1-75.10. Proof
of service of summons, defendant appearing in action. Where the defendant
appears in the action and challenges the service of the summons upon him,
proof of the service of process shall be as follows: |
| (1) |
|
|
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Personal Service or Substituted Personal
Service. |
| |
a. |
|
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If served by the sheriff of the county or
the lawful process officer in this State where the defendant was found,
by the officer's certificate thereof, showing place, time and manner of
service; or |
| |
b. |
|
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If served by any other person, his affidavit
thereof, showing place, time and manner of service; his qualifications to
make service under Rule 4(a) or Rule 4(j3) of the Rules of Civil Procedure;
that he knew the person served to be the party mentioned in the summons
and delivered to and left with him a copy; and if the defendant was not
personally served, he shall state in such affidavit when, where and with
whom such copy was left. If such service is made outside this State, the
proof thereof may in the alternative be made in accordance with the law
of the place where such service is made. |
| (2) |
|
|
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Service of Publication. In the case
of publication, by the affidavit of the publisher or printer, or his foreman
or principal clerk, showing the same and specifying the date of the first
and last publication, and an affidavit of mailing of a copy of the complaint
or notice, as the case may require, made by the person who mailed the same.
|
| (3) |
|
|
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Written Admission of Defendant. The
written admission of the defendant, whose signature or the subscription
of whose name to such admission shall be presumptive evidence of genuineness.
|
| (4) |
|
|
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Service by Registered or Certified Mail.
In the case of service by registered or certified mail, by affidavit of
the serving party averring: |
| |
a. |
|
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That a copy of the summons and complaint
was deposited in the post office for mailing by registered or certified
mail, return receipt requested; |
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b. |
|
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That it was in fact received as evidenced
by the attached registry receipt or other evidence satisfactory to the court
of delivery to the addressee; and |
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c. |
|
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That the genuine receipt or other evidence
of delivery is attached.
(1967, c. 954, s. 2; 1969, c. 895, s. 14; 1973, c. 643; 1979, c. 525, s.
2; 1981, c. 540, ss. 9, 10.) |