RHODE ISLAND

RULES OF CIVIL PROCEDURE

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Rule 4. Process, attachment, trustee process, arrest.

Summons: Form.

The summons shall bear the signature or facsimile signature of the clerk, be under the seal of the court, identify the court and the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney or, if unrepresented, of the plaintiff. It shall also state the time within which the defendant must appear and defend, and notify the defendant that failure to do so will result in a judgment by default against the defendant for the relief demanded in the complaint. The court may allow a summons to be amended.

Same: Issuance.

The summons may be procured in blank from the clerk and shall be filled out by the plaintiff’s attorney as provided in subdivision (a) of this rule. The plaintiff’s attorney shall deliver to the person who is to make service the original summons upon which to make the return of service and a copy of the summons and of the complaint for service upon each defendant. Additional summons may be issued against any defendant.

By Whom Served.

Service of all process shall be made by a sheriff or the sheriff’s deputy, within the sheriff’s county, by a duly authorized constable, or by any person who is not a party and who is at least 18 years of age.

Waiver of Service; Duty to Save Costs of Service; Request to Waive.

• A defendant who waives service of a summons does not thereby waive any objection to the venue or to the jurisdiction of the court over the person of the defendant.
• An individual or corporation that is subject to service under subdivision (e)(1), (e)(3), or (f), and that receives notice of an action in the manner provided in this paragraph has a duty to avoid unnecessary costs of serving the summons. To avoid costs, the plaintiff may notify such a defendant of the commencement of the action and request that the defendant waive service of a summons. The notice and request
  1. Shall be in writing and shall be addressed directly to the defendant, if an individual, or else to an officer or managing or general agent (or other agent authorized by appointment or law to receive service of process) of a defendant subject to service under the laws of this state;
  2. Shall be dispatched through first-class mail or other reliable means;
  3. Shall be accompanied by a copy of the complaint and shall identify the court in which it has been filed;
  4. Shall inform the defendant, by means of a text prescribed in an official form promulgated pursuant to Rule 84, of the consequences of compliance and of a failure to comply with the request;
  5. Shall set forth the date on which the request is sent;
  6. Shall allow the defendant a reasonable time to return the waiver, which shall be at least 30 days from the date on which the request is sent, or 60 days from that date if the defendant is addressed outside the United States; and
  7. Shall provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing. If a defendant located within the United States fails to comply with a request for waiver made by a plaintiff located within the United States, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure be shown.
• A defendant that, before being served with process, timely returns a waiver so requested is not required to serve an answer to the complaint until 60 days after the date on which the request for waiver of service was sent, or 90 days after that date if the defendant was addressed outside the United States.
• When the plaintiff files a waiver of service with the court, the action shall proceed, except as provided in paragraph (3), as if a summons and complaint had been served at the time of filing the waiver, and no proof of service shall be required.
• The costs to be imposed on a defendant under paragraph (2) for failure to comply with a request to waive service of a summons shall include the costs subsequently incurred in effecting service under subdivision (e), (f), or (h), together with the costs, including a reasonable attorney’s fee, of any motion required to collect the costs of service.

Summons: Personal Service.

The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:

• Upon an individual from whom a waiver has not been obtained and filed other than an incompetent person, by delivering a copy of the summons and complaint to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process, provided that if the agent is one designated by statute to receive service, such further notice as the statute requires shall be given.
• Upon a person for whom a guardian or conservator has been appointed by serving copies of the summons and complaint upon such guardian or conservator and upon the incompetent person in the manner provided in paragraph (1) of this subdivision.
• Upon a private corporation, domestic or foreign, from which a waiver of service has not been obtained and filed, by delivering a copy of the summons and complaint to an officer, a managing or general agent, or by leaving a copy of the summons and complaint at an office of the corporation with a person employed therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process, provided that if the agent is one designated by statute to receive service, such further notice as the statute requires shall be given.
• Upon the state by delivering a copy of the summons and complaint to the attorney general or an assistant attorney general.
• Upon a public corporation, body, or authority by delivering a copy of the summons and complaint to any officer, director, or manager thereof.

Service Outside State Within the United States; Personal Jurisdiction.

When an individual or a foreign corporation is subject to the jurisdiction of the courts of the state, service of process may be made outside the state as follows:

• Upon an individual by delivery of a copy of the summons and complaint to the individual personally by any disinterested person, or by mailing a copy of the summons and complaint to the individual by registered or certified mail, return receipt requested, or by any other method ordered by the court to give such individual notice of the action and sufficient time to prepare any defense thereto.
• Upon a foreign corporation by delivery of a copy of the summons and complaint by any disinterested person to the president, secretary, or treasurer of such corporation or to any agent or attorney for service of process designated by the corporation in the state of incorporation, or by mailing a copy of the summons and complaint to any such officer or agent or to the corporation at its business address designated in the state of incorporation by registered or certified mail, return receipt requested, or by any other method ordered by the court to give such corporation notice of the action and sufficient time to prepare any defense thereto.

Service Upon Individuals in a Foreign Country.

Unless otherwise provided by state or federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effected in a place not within the United States:

• 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 Extra judicial Documents; or
• 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:
  1. In the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or
  2. As directed by the foreign authority in response to a letter rogatory or letter of request; or
  3. Unless prohibited by the law of the foreign country, by
     1. Delivery to the individual personally of a copy of the summons and the complaint; or
     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
• By other means not prohibited by international agreement as may be directed by the court.

Service Outside the State in Certain Actions.

Where service cannot with due diligence be made personally within the state, service of the summons and complaint may be made outside the state in the manner provided by subdivisions (f) and (g) of this rule in the following cases:

• Where an interest of a person in property or credits within the state has been brought before the court by attachment or trustee process, or
• Where a pleading demands a judgment that a person be excluded from a vested or contingent interest in or lien upon specific real or personal property within the state; or that such an interest or lien of any party be enforced, regulated, defined, determined, or limited.

Service by Publication.

Whenever in an action described in subdivision (h) of this rule complete service cannot with due diligence be made by another prescribed method, the court shall order service by publication of a notice of the action in one or more newspapers in such form and for such length of time as the court shall direct. If a statute expressly provides for service of process by publication, publication shall be in the form and manner provided by such statute.

Proof of Service.

If service is not waived, the person effecting service shall make proof thereof on the original process or a paper attached thereto for that purpose, and shall forthwith return it to the plaintiff’s attorney. If service is made by a person other than a sheriff or the sheriff’s deputy, that person shall make affidavit thereof. Any return receipt received in connection therewith shall be annexed to such process when returned. The plaintiff’s attorney shall, within the time during which the person served must respond to the process, file the proof of service with the court. Failure to make proof of service does not affect the validity of the service.

Amendment.

At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.

Summons: Time Limit for Service.

If a service of the summons and complaint is not made upon a defendant within 120 days after the commencement of the action and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

Attachment and Trustee Process.

• Availability of Remedies. In connection with the commencement of any action under these rules, attachment, including trustee process, shall be available to the extent and in the manner provided by law.
• Writ of Attachment: Form. The writ of attachment shall bear the signature or facsimile signature of the clerk, be under the seal of the court, contain the name of the court, the names and residences of the parties and the trustee, if any, and the date of the commencement of the action, be directed to the sheriffs of the several counties or their deputies, or to other officers authorized by law to serve the same, and command them to attach the goods or estate of the defendant to the value of the amount of the plaintiff’s demand for judgment, together with a reasonable allowance for interest and costs, and to make due return of their doings thereon.
• Same: Issuance. The writ of attachment may be procured in blank from the clerk, shall be filled out by the plaintiff’s attorney as provided in paragraph (2) of this subdivision, and shall be submitted to the court with a motion for its issuance. The motion shall be granted only upon a showing that there is a probability of a judgment being rendered in favor of the plaintiff and that there is a need for furnishing the plaintiff security in the amount sought for satisfaction of such judgment, together with interest and costs. A motion hereunder shall not be granted ex parte. Security may be required in connection with issuance of any writ of attachment. A surety upon a bond or undertaking hereunder shall be subject to the provisions of Rule 65 (c).
• Same: Service. The plaintiff’s attorney shall deliver to the officer making service a copy of the proposed writ of attachment together with a copy of the motion for its issuance and the notice of hearing thereof. When the summons and complaint are served upon the defendant as provided in subdivisions (d) through (i) of this rule, the defendant shall also be served with a copy of the proposed writ of attachment and of the motion for its issuance with the notice of hearing thereof. An attachment made after service of the summons and complaint shall be made as provided in paragraph (6) of this subdivision.
• Attachment on Counterclaim, Cross-Claim, or Third-Party Complaint. Attachment may be utilized by a party bringing a counterclaim, a cross-claim, or a third-party complaint in the same manner as upon an original claim.
• Subsequent Attachment. After service of the summons and complaint upon the defendant, attachment shall be available to the extent and in the manner provided by law, shall follow the form prescribed in paragraph (2) of this subdivision, and shall be issued in accordance with paragraph (3) of this subdivision. All papers shall be served upon the defendant in the manner provided for service of process under subdivisions (d) through (i) of this rule unless the defendant has appeared in the action, in which case service shall be made as provided in Rule 5(b).
• Return of Service. Upon service of a writ of attachment and copy thereof, the person making the service shall make the return as provided in subdivision (j) of this rule.

Arrest.

• Availability of Remedy. In connection with the commencement of any action under these rules, a writ of arrest shall be available to the extent and in the manner provided by law.
• Form and Service. The writ of arrest shall be obtained and filled out in the same manner as a writ of attachment, shall be accompanied by such affidavit as may be required by law, and shall be submitted to the court with a motion for its issuance. An order of issuance shall be indorsed on the writ by the court. Service of such writ shall be accompanied by service upon the defendant of a copy of the summons and complaint, and return of service shall be made in the same manner as return of service on a writ of attachment.
• Subsequent Writ of Arrest. After service of the summons and complaint upon the defendant a writ of arrest shall be available to the extent and in the manner provided by law and shall be issued and served as provided in paragraph (2) of this subdivision.
• Ne Exeat. An order of arrest may be entered when the plaintiff has demanded and would be entitled to a judgment requiring the performance of an act, the neglect or refusal to perform which would be punishable by the court as a contempt, and where the defendant is not a resident of the state or is about to depart therefrom, by reason of which nonresidence or departure there is danger that such judgment or order will be rendered ineffectual. (As amended September 5, 1995.)

Case Note: Service of process upon a foreign corporation incorporated in a nation which is a party to the Hague Convention must be made in accordance with the terms of that convention. Cipolla v. Picard Porsche Audi, Inc., 946 A.2d 130 (R.I. 1985).

§ 45-16-14 Unauthorized services of process.

Any individual who serves, or attempts to serve, any writ or legal process for any court of this state; other than sheriffs, deputy sheriffs, and those individuals so authorized for such service pursuant to this chapter, or other individuals authorized by law or by rule of court shall be fined not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000), and/or imprisoned for a term of not less than six (6) months, nor more than one year in prison, for each violation. Provided, however, this section shall not apply to any city or town constable nor to any power or authority granted to them by any general or special law.

Rule 45. Subpoena.

Form; Issuance.

Every subpoena shall be issued by the clerk of court or a notary public or other officer authorized by statute, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated documents or tangible things in the possession, custody or control of that person or to permit inspection of premises at a time and place therein specified. The subpoena shall set forth the text of subdivisions (c) and (d) of this rule. A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately.

Service.

A subpoena may be served by the sheriff, by the sheriff’s deputy, by a constable, or by any other person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and, if the person’s attendance is commanded, by tendering to that person the fees for one day’s attendance and the mileage allowed by law. When the subpoena is issued on behalf of the state or an officer or agency thereof, fees and mileage need not be tendered. Prior notice of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(b). A subpoena may be served at any place within the state.

Protection of Persons Subject to Subpoenas.

• A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney’s fee.
• (A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.

(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.

• On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it
  1. Fails to allow reasonable time for compliance;
  2. Requires disclosure of privileged or other protected matter and no exception or waiver applies, or
  3. Subjects a person to undue burden.
• If a subpoena
  1. Requires disclosure of a trade secret or other confidential research, development, or commercial information, or
  2. Requires disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study made not at the request of any party, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.

Duties in Responding to Subpoena.

• A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.
• When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.

Contempt.

Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court in which the action is pending. (As amended September 5, 1995.)