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Terminal Transp. The amendment is but a moderate extension of the territorial reach of Federal process and has ample practical justification.

See 2 Moore, supra. As to the need for enlarging the territorial area in which orders of commitment for civil contempt may be served, see Graber v.

Graber , 93 F. Pine Tree Products Co. Dexter , Fed. Iowa As to the Court's power to amend subdivisions e and f as here set forth, see Mississippi Pub.

Murphree , U. Subdivision i. The continual increase of civil litigation having international elements makes it advisable to consolidate, amplify, and clarify the provisions governing service upon parties in foreign countries.

As indicated in the opening lines of new subdivision i , referring to the provisions of subdivision e , the authority for effecting foreign service must be found in a statute of the United States or a statute or rule of court of the State in which the district court is held providing in terms or upon proper interpretation for service abroad upon persons not inhabitants of or found within the State.

For examples of Federal and State statutes expressly authorizing such service, see 8 U. Several decisions have construed statutes to permit service in foreign countries, although the matter is not expressly mentioned in the statutes.

Superior Court , Cal. Fliegers , Misc. Thompson , N. Bush , S. Federal and State statutes authorizing service on nonresidents in such terms as to warrant the interpretation that service abroad is permissible include 15 U.

Under subdivisions e and i , when authority to make foreign service is found in a Federal statute or statute or rule of court of a State, it is always sufficient to carry out the service in the manner indicated therein.

Subdivision i introduces considerable further flexibility by permitting the foreign service and return thereof to be carried out in any of a number of other alternative ways that are also declared to be sufficient.

Other aspects of foreign service continue to be governed by the other provisions of Rule 4. Thus, for example, subdivision i effects no change in the form of the summons, or the issuance of separate or additional summons, or the amendment of service.

Service of process beyond the territorial limits of the United States may involve difficulties not encountered in the case of domestic service.

See Jones, supra , at For example, a person not qualified to serve process according to the law of the foreign country may find himself subject to sanctions if he attempts service therein.

The enforcement of a judgment in the foreign country in which the service was made may be embarrassed or prevented if the service did not comport with the law of that country.

See ibid. One of the purposes of subdivision i is to allow accommodation to the policies and procedures of the foreign country.

It is emphasized, however, that the attitudes of foreign countries vary considerably and that the question of recognition of United States judgments abroad is complex.

Accordingly, if enforcement is to be sought in the country of service, the foreign law should be examined before a choice is made among the methods of service allowed by subdivision i.

Subdivision i 1. Subparagraph a of paragraph 1 , permitting service by the method prescribed by the law of the foreign country for service on a person in that country in a civil action in any of its courts of general jurisdiction, provides an alternative that is likely to create least objection in the place of service and also is likely to enhance the possibilities of securing ultimate enforcement of the judgment abroad.

In certain foreign countries service in aid of litigation pending in other countries can lawfully be accomplished only upon request to the foreign court, which in turn directs the service to be made.

In many countries this has long been a customary way of accomplishing the service. Subparagraph B of paragraph 1 , referring to a letter rogatory, validates this method.

A proviso, applicable to this subparagraph and the preceding one, requires, as a safeguard, that the service made shall be reasonably calculated to give actual notice of the proceedings to the party.

See Milliken v. Meyer , U. Subparagraph C of paragraph 1 , permitting foreign service by personal delivery on individuals and corporations, partnerships, and associations, provides for a manner of service that is not only traditionally preferred, but also is most likely to lead to actual notice.

Explicit provision for this manner of service was thought desirable because a number of Federal and State statutes permitting foreign service do not specifically provide for service by personal delivery abroad, see e.

Subparagraph D of paragraph 1 , permitting service by certain types of mail, affords a manner of service that is inexpensive and expeditious, and requires a minimum of activity within the foreign country.

Several statutes specifically provide for service in a foreign country by mail, e. Zurini v. United States , F. Cardillo , F.

Kay Gyroplanes, Ltd. Since the reliability of postal service may vary from country to country, service by mail is proper only when it is addressed to the party to be served and a form of mail requiring a signed receipt is used.

An additional safeguard is provided by the requirement that the mailing be attended to be the clerk of the court. See also the provisions of paragraph 2 of this subdivision i regarding proof of service by mail.

Under the applicable law it may be necessary, when the defendant is an infant or incompetent person, to deliver the summons and complaint to a guardian, committee, or similar fiduciary.

In such a case it would be advisable to make service under subparagraph A , B , or E. Subparagraph E of paragraph 1 adds flexibility by permitting the court by order to tailor the manner of service to fit the necessities of a particular case or the peculiar requirements of the law of the country in which the service is to be made.

A similar provision appears in a number of statutes, e. The next-to-last sentence of paragraph 1 permits service under C and E to be made by any person who is not a party and is not less than 18 years of age or who is designated by court order or by the foreign court.

This alternative increases the possibility that the plaintiff will be able to find a process server who can proceed unimpeded in the foreign country; it also may improve the chances of enforcing the judgment in the country of service.

See generally Smit, supra , at — When recourse is had to subparagraph A or B the identity of the process server always will be determined by the law of the foreign country in which the service is made.

The last sentence of paragraph 1 sets forth an alternative manner for the issuance and transmission of the summons for service.

After obtaining the summons from the clerk, the plaintiff must ascertain the best manner of delivering the summons and complaint to the person, court, or officer who will make the service.

Thus the clerk is not burdened with the task of determining who is permitted to serve process under the law of a particular country or the appropriate governmental or nongovernmental channel for forwarding a letter rogatory.

Under D , however, the papers must always be posted by the clerk. Subdivision i 2. When service is made in a foreign country, paragraph 2 permits methods for proof of service in addition to those prescribed by subdivision g.

Proof of service in accordance with the law of the foreign country is permitted because foreign process servers, unaccustomed to the form or the requirement of return of service prevalent in the United States, have on occasion been unwilling to execute the affidavit required by Rule 4 g.

See Jones, supra , at ; Longley, supra , at As a corollary of the alternate manner of service in subdivision i 1 E , proof of service as directed by order of the court is permitted.

The special provision for proof of service by mail is intended as an additional safeguard when that method is used.

On the type of evidence of delivery that may be satisfactory to a court in lieu of a signed receipt, see Aero Associates, Inc. La Metropolitana , F.

The wording of Rule 4 f is changed to accord with the amendment of Rule 13 h referring to Rule 19 as amended. Subdivision a.

This is a technical amendment to conform this subdivision with the amendment of subdivision c. Subdivision c. The purpose of this amendment is to authorize service of process to be made by any person who is authorized to make service in actions in the courts of general jurisdiction of the state in which the district court is held or in which service is made.

There is a troublesome ambiguity in Rule 4. Rule 4 c directs that all process is to be served by the marshal, by his deputy, or by a person specially appointed by the court.

When that is so, may the persons so designated by state law make service, or is service in all cases to be made by a marshal or by one specially appointed under present Rule 4 c?

The commentators have noted the ambiguity and have suggested the desirability of an amendment. And the ambiguity has given rise to unfortunate results.

See United States for the use of Tanos v. Paul Mercury Ins. Commodity Enterprises, Inc. The ambiguity can be resolved by specific amendments to Rules 4 d 7 and 4 e , but the Committee is of the view that there is no reason why Rule 4 c should not generally authorize service of process in all cases by anyone authorized to make service in the courts of general jurisdiction of the state in which the district court is held or in which service is made.

The marshal continues to be the obvious, always effective officer for service of process. Speaker, in July Mr. McClory and I brought before the House a bill to delay the effective date of proposed changes in rule 4 of the Federal Rules of Civil Procedure, dealing with service of process.

The Congress enacted that legislation and delayed the effective date so that we could cure certain problems in the proposed amendments to rule 4.

Since that time, Mr. McClory and I introduced a bill, H. It was drafted in consultation with representatives of the Department of Justice, the Judicial Conference of the United States, and others.

The Department of Justice and the Judicial Conference have endorsed the bill and have urged its prompt enactment. Indeed, the Department of Justice has indicated that the changes occasioned by the bill will facilitate its collection of debts owned to the Government.

I have a letter from the Office of Legislative Affairs of the Department of Justice supporting the bill that I will submit for the Record.

Also, I am submitting for the Record a section-by-section analysis of the bill. I urge my colleagues to support it. Dear Mr. Chairman: This is to proffer the views of the Department of Justice on H.

While the agenda is extremely tight and we appreciate that fact, we do reiterate that this Department strongly endorses the enactment of H.

We would greatly appreciate your watching for any possible way to enact this legislation expeditiously. Experience has shown that the Marshals Service's increasing workload and limited budget require such major relief from the burdens imposed by its role as process-server in all civil actions.

The bill would also amend Rule 4 to permit certain classes of defendants to be served by first class mail with a notice and acknowledgment of receipt form enclosed.

We have previously expressed a preference for the service-by-mail provisions of the proposed amendments to Rule 4 which the Supreme Court transmitted to Congress on April 28, The amendments proposed by the Supreme Court would permit service by registered or certified mail, return receipt requested.

We had regarded the Supreme Court proposal as the more efficient because it would not require and affirmative act of signing and mailing on the part of a defendant.

Moreover, the Supreme Court proposal would permit the entry of a default judgment if the record contained a returned receipt showing acceptance by the defendant or a returned envelope showing refusal of the process by the defendant and subsequent service and notice by first class mail.

As you know, in light of these criticisms the Congress enacted Public Law 97— H. This Department opposed the delay in the effective date, primarily because the Supreme Court's proposed amendments also contained urgently needed provisions designed to relieve the United States Marshals of the burden of serving summonses and complaints in private civil actions.

In our view, these necessary relief provisions are readily separable from the issues of service by certified mail and the propriety of default judgment after service by certified mail which the Congress felt warranted additional review.

During the floor consideration of H. In this spirit Judiciary Committee staff consulted with representatives of this Department, the Judicial Conference, and others who had voiced concern about the proposed amendments.

Accordingly, we are satisfied that the provisions of H. We urge prompt consideration of H. The Office of Management and Budget has advised that there is no objection to the submission of this report from the standpoint of the Administration's program.

These legislative changes are embodied in Section 10 of S. If, in the Committee's judgment, efforts to incorporate these suggested amendments in H.

The Federal Rules of Civil Procedure set forth the procedures to be followed in civil actions and proceedings in United States district courts.

These rules are usually amended by a process established by 28 U. The rules and amendments so proposed take effect 90 days after transmittal unless legislation to the contrary is enacted.

These amendments were to have taken effect on August 1, The amendments to Rule 4 of the Federal Rules of Civil Procedure were intended primarily to relieve United States marshals of the burden of serving summonses and complaints in private civil actions.

The Committee received numerous complaints that the changes not only failed to achieve that goal, but that in the process the changes saddled litigators with flawed mail service, deprived litigants of the use of effective local procedures for service, and created a time limit for service replete with ambiguities that could only be resolved by costly litigation.

See House Report No. In order to consider these criticisms, Congress enacted Public Law 97—, postponing the effective date of the proposed amendments to Rule 4 until October 1, With that deadline and purpose in mind, consultations were held with representatives of the Judicial Conference, the Department of Justice, and others who had voiced concern about the proposed amendments.

The bill seeks to effectuate the policy of relieving the Marshals Service of the duty of routinely serving summonses and complaints.

It provides a system of service by mail modeled upon a system found to be effective in California, and finally, it makes appropriate stylistic, grammatical, and other changes in Rule 4.

Rule 4 of the Federal Rules of Civil Procedure relates to the issuance and service of process. Mail service is not directly authorized.

Subsection d 7 , however, authorizes service under the law of the state in which the district court sits upon defendants described in subsections d 1 certain individuals and d 3 organizations.

Thus, if state law authorizes service by mail of a summons and complaint upon an individual or organization described in subsections d 1 or 3 , then subsection d 7 authorizes service by mail for United States district courts in that state.

The Supreme Court's proposed modifications of Rule 4 were designed to alleviate the burden on the Marshals Service of serving summonses and complaints in private civil actions.

While the Committee received no complaints about the goal of reducing the role of the Marshals Service, the Court's proposals simply failed to achieve that goal.

Thus, any party could have invoked 28 U. The Justice Department acknowledges that the proposed subsection did not accomplish its objectives.

Had 28 U. By so doing, H. The Supreme Court's proposed subsection d 7 and 8 authorized, as an alternative to personal service, mail service of summonses and complaints on individuals and organizations described in subsection d 1 and 3 , but only through registered or certified mail, restricted delivery.

Critics of that system of mail service argued that registered and certified mail were not necessarily effective methods of providing actual notice to defendants of claims against them.

See Cal. Service would be by ordinary mail with a notice and acknowledgment of receipt form enclosed. If the defendant returns the acknowledgment form to the sender within 20 days of mailing, the sender files the return and service is complete.

If the acknowledgment is not returned within 20 days of mailing, then service must be effected through some other means provided for in the Rules.

This system of mail service avoids the notice problems created by the registered and certified mail procedures proposed by the Supreme Court.

If the proper person receives the notice and returns the acknowledgment, service is complete. If the proper person does not receive the mailed form, or if the proper person receives the notice but fails to return the acknowledgment form, another method of service authorized by law is required.

In order to encourage defendants to return the acknowledgment form, the court can order a defendant who does not return it to pay the costs of service unless the defendant can show good cause for the failure to return it.

Those in favor of preserving the local option saw no reason to forego systems of service that had been successful in achieving effective notice. Thus, the bill authorizes four methods of serving a summons and complaint on such defendants: 1 service by a nonparty adult Rule 4 c 2 A ; 2 service by personnel of the Marshals Service, if the party qualifies, such as because the party is proceeding in forma pauperis Rule 4 c 2 B ; 3 service in any manner authorized by the law of the state in which the district court is held Rule 4 c 2 C i ; or 4 service by regular mail with a notice and acknowledgment of receipt form enclosed Rule 4 c 2 C ii.

Rule 4 does not currently provide a time limit within which service must be completed. Primarily because United States marshals currently effect service of process, no time restriction has been deemed necessary.

Along with the proposed changes to subdivisions c and d to reduce the role of the Marshals Service, however, came new subdivision j , requiring that service of a summons and complaint be made within days of the filing of the complaint.

If dismissal for failure to serve is raised by the court upon its own motion, the legislation requires that the court provide notice to the plaintiff.

If dismissal is sought by someone else, Rule 5 a of the Federal Rules of Civil Procedure requires that the motion be served upon the plaintiff.

Like proposed subsection j , H. Proposed subsection j was criticized by some for ambiguity because, it was argued, neither the text of subsection j nor the Advisory Committee Note indicated whether a dismissal without prejudice would toll a statute of limitation.

See House Report 97—, at 3—4 The problem would arise when a plaintiff files the complaint within the applicable statute of limitation period but does not effect service within days.

The answer depends upon how the statute of limitation is tolled. If the law provides that the statute of limitation is tolled by filing and service of the complaint, then a dismissal under H.

If the plaintiff has not been diligent, the court will dismiss the complaint for failure to serve within days, and the plaintiff will be barred from later maintaining the cause of action because the statute of limitation has run.

A dismissal without prejudice does not confer upon the plaintiff any rights that the plaintiff does not otherwise possess and leaves a plaintiff whose action has been dismissed in the same position as if the action had never been filed.

A court would undoubtedly permit such a plaintiff additional time within which to effect service. Thus, a diligent plaintiff can preserve the cause of action.

This result is consistent with the policy behind the time limit for service and with statutes of limitation, both of which are designed to encourage prompt movement of civil actions in the federal courts.

Current subsections d 4 and 5 prescribe which persons must be served in cases where an action is brought against the United States or an officer or agency of the United States.

Under subsection d 4 , where the United States is the named defendant, service must be made as follows: 1 personal service upon the United States attorney, an assistant United States attorney, or a designated clerical employee of the United States attorney in the district in which the action is brought; 2 registered or certified mail service to the Attorney General of the United States in Washington, D.

Under subsection d 5 , where an officer or agency of the United States is named as a defendant, service must be made as in subsection d 4 , except that personal service upon the officer or agency involved is required.

The time limit for effecting service in H. There is little reason to require different types of service when the officer or agency is named as a party, and H.

Section 2 of the bill consists of 7 numbered paragraphs, each amending a different part of Rule 4 of the Federal Rules of Civil Procedure. Paragraph 1 deletes the requirement in present Rule 4 a that a summons be delivered for service to the marshal or other person authorized to serve it.

This change effectuates the policy proposed by the Supreme Court. Paragraph 2 amends current Rule 4 c , which deals with the service of process.

New Rule 4 c 1 requires that all process, other than a subpoena or a summons and complaint, be served by the Marshals Service or by a person especially appointed for that purpose.

Thus, the Marshals Service or persons specially appointed will continue to serve all process other than subpoenas and summonses and complaints, a policy identical to that proposed by the Supreme Court.

The service of subpoenas is governed by Rule 45 , 17 and the service of summonses and complaints is governed by new Rule 4 c 2. New Rule 4 c 2 A sets forth the general rule that summonses and complaints shall be served by someone who is at least 18 years old and not a party to the action or proceeding.

This is consistent with the Court's proposal. Subparagraphs B and C of new Rule 4 c 2 set forth exceptions to this general rule.

Subparagraph B sets forth 3 exceptions to the general rule. First, subparagraph B i requires the Marshals Service or someone specially appointed by the court to serve summonses and complaints on behalf of a party proceeding in forma pauperis or a seaman authorized to proceed under 28 U.

This is identical to the Supreme Court's proposal. Second, subparagraph B ii requires the Marshals Service or someone specially appointed by the court to serve a summons and complaint when the court orders the marshals to do so in order properly to effect service in that particular action.

Subparagraph C of new Rule 4 c 2 provides 2 exceptions to the general rule of service by a nonparty adult. These exceptions apply only when the summons and complaint is to be served upon persons described in Rule 4 d 1 certain individuals or Rule 4 d 3 organizations.

This restates the option to follow local law currently found in Rule 4 d 7 and would authorize service by mail if the state law so allowed.

The method of mail service in that instance would, of course, be the method permitted by state law. Second, subparagraph C ii permits service of a summons and complaint by regular mail.

The sender must send to the defendant, by first-class mail, postage prepaid, a copy of the summons and complaint, together with 2 copies of a notice and acknowledgment of receipt of summons and complaint form and a postage prepaid return envelope addressed to the sender.

If a copy of the notice and acknowledgment form is not received by the sender within 20 days after the date of mailing, then service must be made under Rule 4 c 2 A or B i.

New Rule 4 c 2 D permits a court to penalize a person who avoids service by mail. It authorizes the court to order a person who does not return the notice and acknowledgment form within 20 days after mailing to pay the costs of service, unless that person can show good cause for failing to return the form.

The purpose of this provision is to encourage the prompt return of the form so that the action can move forward without unnecessary delay. Fairness requires that a person who causes another additional and unnecessary expense in effecting service ought to reimburse the party who was forced to bear the additional expense.

Subparagraph E of rule 4 c 2 requires that the notice and acknowledgment form described in new Rule 4 c 2 C ii be executed under oath or affirmation.

This provision tracks the language of 28 U. Statements made under penalty of perjury are subject to 18 U. The requirement that the form be executed under oath or affirmation is intended to encourage truthful submissions to the court, as the information contained in the form is important to the parties.

New Rule 4 c 3 authorizes the court freely to make special appointments to serve summonses and complaints under Rule 4 c 2 B and all other process under Rule 4 c 1.

This carries forward the policy of present Rule 4 c. Paragraph 3 of section 2 of the bill makes a non-substantive change in the caption of Rule 4 d in order to reflect more accurately the provisions of Rule 4 d.

Paragraph 3 also deletes a provision on service of a summons and complaint pursuant to state law. This provision is redundant in view of new Rule 4 c 2 C i.

Paragraph 4 of section 2 of the bill conforms Rule 4 d 5 to present Rule 4 d 4. Hence, the change is not a marked departure from current practice.

Paragraph 5 of section 2 of the bill amends the caption of Rule 4 e in order to describe subdivision e more accurately. Paragraph 6 of section 2 of the bill amends Rule 4 g , which deals with return of service.

Present rule 4 g is not changed except to provide that, if service is made pursuant to the new system of mail service Rule 4 c 2 C ii , the plaintiff or the plaintiff's attorney must file with the court the signed acknowledgment form returned by the person served.

Paragraph 7 of section 2 of the bill adds new subsection j to provide a time limitation for the service of a summons and complaint. New Rule 4 j retains the Supreme Court's requirement that a summons and complaint be served within days of the filing of the complaint.

This notification is mandated by subsection j if the dismissal is being raised on the court's own initiative and will be provided pursuant to Rule 5 which requires service of motions upon the adverse party if the dismissal is sought by someone else.

See Appendix II, at 1d. Advisory Committee Note. This new form is required by new Rule 4 c 2 C ii , which requires that the notice and acknowledgment form used with service by regular mail conform substantially to Form 18A.

Form 18A as set forth in section 3 of the bill is modeled upon a form used in California. The first part is a notice to the person being served that tells that person that the enclosed summons and complaint is being served pursuant to Rule 4 c 2 C ii ; advises that person to sign and date the acknowledgment form and indicate the authority to receive service if the person served is not the party to the action e.

The notice also warns that if the complaint is not responded to within 20 days, a default judgment can be entered against the party being served.

The notice is dated under penalty of perjury by the plaintiff or the plaintiff's attorney. The second part of the form contains the acknowledgment of receipt of the summons and complaint.

The person served must declare on this part of the form, under penalty of perjury, the date and place of service and the person's authority to receive service.

Section 4 of the bill provides that the changes in Rule 4 made by H. The delayed effective date means that service of process issued before the effective date will be made in accordance with current Rule 4.

Accordingly, all process in the hands of the Marshals Service prior to the effective date will be served by the Marshals Service under the present rule.

Section 5 of the bill provides that the amendments to Rule 4 proposed by the Supreme Court whose effective date was postponed by Public Law 97— shall not take effect.

This is necessary because under Public Law 97— the proposed amendments will take effect on October 1, The Advisory Committee's draft is then reviewed by the Committee on Rules of Practice and Procedure, which must give its approval to the draft.

Any draft approved by that committee is forwarded to the Judicial Conference. If the Judicial Conference approves the draft, it forwards the draft to the Supreme Court.

The Judicial Conference's role in the rule-making process is defined by 28 U. Edward Lumbard, id. See President's Statement on Signing H.

This would authorize mail service if the state statute or rule of court provided for service by mail. This authority, however, was not seen as thwarting the underlying policy of limiting the use of marshals.

As a later statutory enactment, however, H. The interpretation of Rule 4 d 8 to require a refusal of delivery in order to have a basis for a default judgment, while undoubtedly the interpretation intended and the interpretation that reaches the fairest result, may not be the only possible interpretation.

See note 8 supra. In adversity action, state law governs tolling. Walker v. Armco Steel Corp. In Walker , plaintiff had filed his complaint and thereby commenced the action under Rule 3 of the Federal Rules of Civil Procedure within the statutory period.

He did not, however, serve the summons and complaint until after the statutory period had run. The Court held that state law which required both filing and service within the statutory period governed, barring plaintiff's action.

In the federal question action, the courts of appeals have generally held that Rule 3 governs, so that the filing of the complaint tolls a statute of limitation.

United States v. Wahl , F. Environmental Enterprises Inc. International Union of Operating Engineers , F. Halden , F. The continued validity of this line of cases, however, must be questioned in light of the Walker case, even though the Court in that case expressly reserved judgment about federal question actions, see Walker v.

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