Practice Points with Mark Scruggs

Rule 3 – Delayed Service of Complaint - It’s the Summons that Counts!

Last month, I wrote about Williams v. Jennette and using Rule 6(b) to enlarge the time for filing the complaint that was filed using the Rule 3 “Delayed Service of Complaint” process. Today, I would like to take a step back and talk about the beginning of the Delayed Service of Complaint process.

Ordinarily, a civil action is commenced by filing a complaint. However, Rule 3 also permits a civil action to be initiated by the issuance of a summons when:

• A person makes application to the court stating the nature and purpose of his action and requesting permission to file his complaint within 20 days and
• The court makes an order stating the nature and purpose of the action and granting the requested permission.

Rule 3(a) further states, “The summons and the court’s order shall be served in accordance with the provisions of Rule 4. When the complaint is filed it shall be served in accordance with the provisions of Rule 4 or by registered mail if the plaintiff so elects.”

Lawyers do not regularly use Rule 3 when starting a lawsuit, and the two-step process sometimes causes problems, especially with regard to service. Service issues can potentially cause the action to be barred by the statute of limitations. I have three tips that may help avoid confusion and keep your lawsuit viable.

1. FOCUS ON THE “CIVIL SUMMONS TO BE SERVED WITH ORDER EXTENDING TIME TO FILE COMPLAINT” (AOC-CV-102)

Problems almost always occur when the Rule 3 summons is not served or not served properly. Utmost concern should be paid to the proper service of this summons. In Hemmings v. Green, 122 N.C. App. 191, 468 S.E. 2d 278 (1996), the plaintiff attempted to serve the “Civil Summons to be Served with Order Extending Time to File Complaint” on the defendant, but both the civil summons and the order were returned unserved. The plaintiff filed a timely complaint and effectively served the defendant with a “Delayed Service of Complaint” form (AOC-CV-103) and the complaint. The defendant moved to dismiss the complaint for lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process. The trial court dismissed the action, and the plaintiff appealed.

The Court of Appeals affirmed the dismissal. Citing its analysis in Latham v. Cherry, 111 N.C. App. 871, 433 S.E. 2d 478, cert. denied, 335 N.C. 556, 441 S.E. 2d 116 (1994), the court held that a “Delayed Service of Complaint” form, served alongside the complaint itself, is not a legally adequate substitute for a summons. The court said that although the information conveyed in a “Delayed Service of Complaint” is similar to that of a summons proper, it falls short because it only tells the defendant to answer, not to appear. By statute, a summons must tell the defendant to appear and answer within 30 days.

The plaintiff’s lawyer may have thought good service of the complaint cured any problem with the invalid service of the “Civil Summons To Be Served With Order Extending Time To File Complaint.” It does not.

Problems can also arise when you are having trouble serving the defendant with the “Civil Summons To Be Served With Order Extending Time To File Complaint” or the “Delayed Service of Complaint” and the complaint, and you have to use A&P summonses to keep your lawsuit viable. In Robertson v. Price, 187 N.C. App. 180, 652 S.E. 2d 352 (2007), the plaintiff filed a Rule 3 application for permission to file her complaint within 20 days. She filed her application on the last day of the statute of limitations – March 14, 2006. On the same day, the Clerk of Court granted the extension order and issued a “Civil Summons To Be Served With Order Extending Time To File Complaint.”

The plaintiff filed a timely complaint on April 3, 2006, and caused civil summonses to be issued against the defendants. The record showed that the plaintiff did not serve the defendants with either the “Civil Summons To Be Served With Order Extending Time To File Complaint” issued on March 14, 2006, or the civil summonses issued on April 3, 2006. Moreover, none of the April 3 summonses stated they were A&P summonses, nor did they relate back to the March 14 summonses.  On June 12, 2006, the plaintiff caused additional summonses to be issued against the defendants. Some were designated as A&P summonses, but they related back to the April 3 summonses served with the complaint. On June 20, 2006, the defendants were served with copies of the June 12 summonses and the complaint. Attached to the plaintiff’s complaint were the “Application and Order Extending Time to File Complaint” filed on March 14, 2006.

The defendants moved to dismiss the plaintiff’s complaint for failure to state a claim upon which relief can be granted, and the trial court dismissed the complaint. Plaintiff appealed.

The Court of Appeals affirmed the dismissal holding that the plaintiff had failed to create an unbroken chain from the first summons to the time of actual service, which was after the statute of limitations had expired. So, again, focus on the original summons. Make sure you get that initial summons properly served. And if you haven’t, and if you have to use A&P summonses at any point in the process, make sure you run your chain of A&P summonses from the original summons, and make sure your A&P summonses relate back to the original summons in an unbroken chain.

2. USE THE AOC FORMS DESIGNED FOR THE RULE 3 “DELAYED SERVICE OF COMPLAINT” PROCESS.

Using the AOC forms may help avoid confusion if you run into problems serving the defendant with either the “Application and Order Extending Time to File Complaint” (AOC-CV-101) or “Delayed Service of Complaint” (AOC-CV-103). When serving the “Application and Order Extending Time to File Complaint,” use AOC-CV-102, “Civil Summons To Be Served With Order Extending Time To File Complaint.” AOC form 103, “Delayed Service of Complaint,” does not require a separate summons. Using the AOC forms, making sure your initial summons is properly served and making sure you use A&P summonses correctly will help avoid an unwelcome statute of limitations defense.

3. AVOID USING THE RULE 3 PROCEDURE UNLESS ABSOLUTELY NECESSARY

This may be the most helpful practice point. The Rule 3 process is a special procedure that lawyers do not often use. For that reason, mistakes can happen. I often tell lawyers not to let the client’s delay become your problem. When a client comes to you on the eve of the statute of limitations, consider whether you really want to get involved. If you do, and if your only option is the Rule 3 process, be careful! And focus on the summons.