HOW TO SERVE LEGAL PAPERS IN THE DISTRICT OF COLUMBIA

Rule 4. Summons

(a) CONTENTS; AMENDMENTS. (1) Contents. A summons must:

(A) name the court and the parties;

(B) be directed to the defendant;

(D) state the time within which the defendant must appear and defend;

(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint; (F) be signed by the clerk; and

(G) bear the court’s seal.

(2) Amendments. The court may permit a summons to be amended.

(3) Service Outside the District of Columbia; Process Service in Suit Seeking Seizure of Property in the District of Columbia. A summons, or notice, or order in lieu of summons should correspond as nearly as possible to the requirements of a statute or rule whenever service is made pursuant to a statute or rule that provides for:

(A) service of a summons, or notice, or order in lieu of summons on a party, not an inhabitant of or found within the District of Columbia; or

(B) service on or notice to a party to appear and respond or defend in an action by reason of the attachment or garnishment or similar seizure of the party’s property located within the District of Columbia.

(b) ISSUANCE. A prepared summons, with copies for each defendant named in the complaint, must be delivered to the clerk at the time the complaint is filed. If additional process service is required, a prepared summons for the additional process must also be delivered to the clerk. On receipt and due notation, the clerk will return all but one copy of the summons to the plaintiff or the plaintiff’s agent for service of process in accordance with Rule 4(c), recording on all copies the date of return to the plaintiff or the plaintiff’s agent.

(1) In General. A summons must be served with a copy of the complaint, the Initial Order setting the case for an initial scheduling and settlement conference, any addendum to that order, and any other order directed by the court to the parties at the time of filing. The plaintiff is responsible for having the summons, complaint, Initial Order, any addendum to that order, and any other order directed by the court to the parties at the time of filing served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.

(2) By Whom. Any person who is at least 18 years of age and not a party may serve a summons and complaint.

(3) By Marshal, Process Server or Someone Specially Appointed. At the plaintiff’s request, the court may direct that service be made by a United States marshal or deputy marshal, process server, or by a person specially appointed by the court. This request will only be granted when:

(A) service is to be made on behalf of the United States or an officer or agency of the United States; or

(B) the court issues an order stating that service by a United States marshal, deputy marshal, process server or by a person specially appointed by the court is required for service to be properly made in that particular action.

(4) By Registered or Certified Mail. Any defendant described in Rule 4(e), (f), (h), (i), (j)(1), or (j)(3) may be served by mailing a copy of the summons, complaint, Initial Order, any addendum to that order, and any other order directed by the court to the parties at the time of filing to the person to be served by registered or certified mail, return receipt requested, except as specified in Rule 4(i).

(5) By First-Class Mail with Notice and Acknowledgment.

(A) Requesting an Acknowledgment of Service. Any defendant described in Rule

4(e), (f), or (h) may be served by mailing—by first-class mail, postage prepaid, to the person to be served:

(i) a copy of the summons, complaint, Initial Order, any addendum to that order, and any other order directed by the court to the parties at the time of filing;

(ii) 2 copies of a Notice and Acknowledgment conforming substantially to Civil Action Form 1-A; and

(iii) a return envelope, postage prepaid, addressed to the sender.

(B) Failure to Acknowledge Service. Unless good cause is shown for not doing so, the court must order the party served to pay:

(i) the costs incurred in securing an alternative method of service authorized by this rule if the person served does not complete and return the Notice and Acknowledgment of receipt of the summons within 21 days after mailing; and

(ii) the reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses.

(6) Manner of Conducting Service. Service of process pursuant to Rule 4(c)(2)–(4), or acknowledgment of service pursuant to Rule 4(c)(5), may, at the plaintiff’s or the court’s election, be attempted either concurrently or successively.

(e) PROCESS SERVICE ON INDIVIDUAL WITHIN THE UNITED STATES. Unless applicable law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose acknowledgment has been filed—may be served anywhere in the United States by:

(1) following District of Columbia law, or the state law for serving a summons in an action brought in courts of general jurisdiction in the state where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons, complaint, Initial Order, any addendum to that order, and any other order directed by the court to the parties at the time of filing to the individual personally;

(B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(f) PROCESS SERVICE ON INDIVIDUAL IN A FOREIGN COUNTRY. Unless applicable law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose acknowledgment has been filed—may be served at a place, not within the United States:

(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;

(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

(A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction;

(B) as the foreign authority directs in response to a letter rogatory or letter of request; or

(i) delivering a copy of the summons, complaint, Initial Order, any addendum to that order, and any other order directed by the court to the parties at the time of filing to the individual personally; or

(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or

(3) by other means not prohibited by international agreement, as the court orders.

(g) PROCESS SERVICE ON A MINOR OR AN INCOMPETENT PERSON. A minor or an incompetent person in the United States must be served by following District of Columbia law (D.C. Code §§ 13-332 and -333 (2012 Repl.)) or the state law for serving a summons or like process service on such a defendant in an action brought in the courts of general jurisdiction of the state where service is made. A minor or an incompetent person who is not within the United States must be served in the manner prescribed by Rule 4(f)(2)(A), (f)(2)(B), or (f)(3).

(h) PROCESS SERVICE ON A CORPORATION, PARTNERSHIP, OR ASSOCIATION. Unless applicable law provides otherwise or the defendant’s acknowledgment has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:

(1) in the United States:

(A) in the manner prescribed by Rule 4(e)(1) for process service on an individual; or

(B) by delivering a copy of the summons, complaint, Initial Order, any addendum to that order, and any other order directed by the court to the parties at the time of filing to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant, or

(2) at a place not within the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).

(i) PROCESS SERVICE ON THE UNITED STATES AND ITS AGENCIES, CORPORATIONS, OFFICERS, OR EMPLOYEES.

(1) United States. To serve the United States, a party must:

(A)(i) deliver a copy of the summons, complaint, Initial Order, any addendum to that order, and any other order directed by the court to the parties at the time of filing to the United States Attorney for the District of Columbia—or to an assistant United States attorney or clerical employee whom the United States Attorney designates in a writing filed with the court clerk—or

(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States Attorney’s Office;

(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and

(C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.

(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons, complaint, Initial Order, any addendum to that order, and any other order directed by the court to the parties at the time of filing by registered or certified mail to the agency, corporation, officer, or employee.

(3) Officer or Employee Sued Individually. To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g).

(4) Extending Time. The court must allow a party a reasonable time to cure its failure to:

(A) serve a person required to be served under Rule 4(i)(2), if the party has served either the United States Attorney or the Attorney General of the United States; or

(B) serve the United States under Rule 4(i)(3), if the party has served the United States officer or employee.

(j) PROCESS SERVICE ON THE DISTRICT OF COLUMBIA, AN AGENCY OR OFFICER OF THE DISTRICT OF COLUMBIA, OR OTHER GOVERNMENT ENTITIES SUBJECT TO SUIT.

(1) Foreign State. A foreign state or its political subdivision, agency, or instrumentality must be served in accordance with 28 U.S.C. § 1608.

(2) State or Local Government. A state, municipal corporation, or any other state-created governmental organization that is subject to suit must be served by:

(A) delivering a copy of the summons, complaint, Initial Order, any addendum to that order, and any other order directed by the court to the parties at the time of filing to its chief executive officer; or

(B) Process Service of a summons, complaint, Initial Order, any addendum to that order, and any other order directed by the court to the parties at the time of filing in the manner prescribed by that state’s law for serving a summons or like process on such a defendant.

(3) District of Columbia.

(A) In General. The District of Columbia must be served by delivering (pursuant to Rule 4(c)(2)-(3)) or mailing (pursuant to Rule 4(c)(4)) a copy of the summons, complaint, Initial Order, any addendum to that order, and any other order directed by the court to the parties at the time of filing to the Mayor of the District of Columbia (or designee) and the Attorney General of the District of Columbia (or designee).

(B) Designees. The Mayor and the Attorney General may each designate an employee for receipt of service of process by filing a written notice with the court clerk.

(C) Process Service on a Nonparty. In any action attacking the validity of an order of an agency or officer of the District of Columbia not made a party, a copy of the summons, complaint, Initial Order, any addendum to that order, and any other order directed by the court to the parties at the time of filing must also be delivered or mailed to the officer or agency.

(D) Agency; Officer or Employee Sued in an Official Capacity. Process Service on a District of Columbia agency or a District of Columbia officer or employee sued only in an official capacity, a party must serve by delivering (pursuant to Rule 4(c)(2)-(3)) or mailing (pursuant to Rule 4(c)(4)) a copy of the summons, complaint, Initial Order, any addendum to that order, and any other order directed by the court to the parties at the time of filing to the Mayor (or designee), the Attorney General (or designee), as well as the agency, officer, or employee.

(E) Officer or Employee Sued Individually. Process Service on a District of Columbia officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the District of Columbia’s behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the District of Columbia under Rule 4(j)(3)(A) and also serve the officer or employee under Rule 4(e), (f), or (g).

(k) TERRITORIAL LIMITS OF EFFECTIVE SERVICE.

(1) In General. Serving the summons, complaint, Initial Order, any addendum to that order, and any other order directed by the court to the parties at the time of filing or filing an acknowledgment of service establishes personal jurisdiction over a defendant:

(A) who is subject to the jurisdiction of this court;

(B) who is a party joined under Rule 14 or 19 and is served at a place not more than 100 miles from the place of the hearing or trial; or

(l) PROCESS SERVICE.

(1) Affidavit Required. Unless service is acknowledged, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server’s affidavit.

(A) Process Service by Delivery. If process service is made by delivery pursuant to Rule 4(c)(2)-(3), the return of service must be made under oath (unless service was made by the United States marshal or deputy United States marshal) and must specifically state:

(i) the caption and number of the case;

(ii) the process server’s name, residential or business address, and the fact that he or she is 18 years of age or older;

(iii) the time and place when service was made;

(iv) the fact that the summons, complaint, Initial Order, any addendum to that order, and any other order directed by the court to the parties at the time of filing were delivered to the person served; and

(v) if process service was made by delivery to a person other than the party named in the summons, then specific facts from which the court can determine that the person to whom process was delivered meets the appropriate qualifications for receipt of the process set out in Rule 4(e)–(j).

(B) Process Service by Registered or Certified Mail. If service is made by registered or certified mail under Rule 4(c)(4), the return must be accompanied by the signed receipt attached to an affidavit which must specifically state:

(i) the caption and number of the case;

(ii) the name and address of the person who posted the registered or certified letter;

(iii) the fact that the letter contained the summons, complaint, Initial Order, any addendum to that order, and any other order directed by the court to the parties at the time of filing; and

(iv) if the return receipt does not purport to be signed by the party named in the summons, then specific facts from which the court can determine that the person who signed the receipt meets the appropriate qualifications for receipt of the process set out in Rule 4(e)–(j).

(2) Process Service Outside the United States. Service not within the United States must be proved as follows:

(A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or

(B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons, complaint, Initial Order, any addendum to that order, and any other order directed by the court to the parties at the time of filing were delivered to the addressee.

(3) Validity of Service; Amending Proof. Failure to prove service does not affect the validity of service. The court may permit proof of service to be amended.

(m) TIME LIMIT FOR SERVICE.

(1) Time Limit; Proof.

(A) In General. Within 60 days of the filing of the complaint or, if an order of publication has been issued, within 60 days from the return date specified in the order, the plaintiff must file either an acknowledgment of service or proof of service of the summons, complaint, Initial Order, any addendum to that order, and any other order directed by the court to the parties at the time of filing. A separate acknowledgment or proof must be filed as to each defendant who has not responded to the complaint.

(B) Exceptions to Rule 4(m)(1)(A). The following exceptions apply to the 60-day time limit for filing either an acknowledgment or proof of service in Rule 4(m)(1)(A).

(i) Actions to Foreclose the Right of Redemption Filed Pursuant to D.C. Code § 47-1370. In a case filed pursuant to D.C. Code § 47-1370 (2015 Repl.), the plaintiff must file a separate acknowledgment or proof of service for each defendant who has not responded to the complaint any later than 180 days after the complaint was filed.

(ii) Collection and Subrogation Cases. The time limit for process service in these cases is set forth in Rule 40-III.

(iii) Process Service Outside of the United States. When service is made under Rule 4(f), (h)(2), or (j)(1), the plaintiff must follow the deadlines specified in the relevant statute, treaty, or other international law.

(2) Motion for Extension of Time. Prior to the expiration of any of the foregoing time periods, the plaintiff may make a motion to extend the time for service. The motion must set forth in detail the efforts that have been made and will be made in the future, to obtain service. Except for cases governed by the provisions of Rule 40-III, the court, if the plaintiff shows good cause, must extend the time for an appropriate period.

(3) Process Service After Granting Extension of Time. Along with the materials identified in Rule 4(c)(1), the plaintiff must serve on the party to be served a copy of the order granting a motion for extension of time and notice of the new court date. Proof of service pursuant to Rule 4(l) must include, in addition to the materials identified in that rule, the order granting the motion for extension of time and notice of the new court date.

(4) Dismissal. With the exception of cases where service is made under Rule 4(f), (h)(2), or (j)(1), or Rule 54-II, the plaintiff’s failure to comply with the requirements of this rule will result in the dismissal without prejudice of the complaint. The clerk will enter the dismissal and serve notice on all the parties. Dismissals of collection and subrogation cases are governed by the provisions of Rule 40-III. Dismissals of actions condemning real or personal property are governed by Rule 71.1.

(n) ASSERTING JURISDICTION OVER PROPERTY OR ASSETS.

(1) District of Columbia Law. The court may assert jurisdiction over property if authorized by a District of Columbia statute. Notice to claimants of the property must be given as provided in the statute or by process service of a summons under this rule.

(2) Acquiring Jurisdiction. On a showing that personal jurisdiction over a defendant cannot be obtained in the District of Columbia by reasonable efforts to serve a summons under this rule, the court may assert jurisdiction over the defendant’s assets found in the District of Columbia. Jurisdiction is acquired by seizing the assets under the circumstances and in the manner provided by the District of Columbia law.

COMMENT TO 2017 AMENDMENTS

Rule 4 differs substantially from Federal Rule of Civil Procedure 4, as amended in 2007 and 2015. The differences include: 1) the addition of language referring to the “Initial Order, any addendum to that order, and any other order directed by the court to the parties at the time of filing” wherever the rule discusses service of the summons and complaint; 2) the substitution of “District of Columbia” for “the state where the district court is located”; 3) the substitution of “District of Columbia” for “federal” and “state”; 4) the substitution of “applicable law” and “applicable statute” for “federal law” and “federal statute”; 5) the addition of sections (a)(3), (c)(4)–(6), (j)(3), and (l)(1)(A)–(B); 6) revising sections (b) and (m) to reflect Superior Court practice; 7) the insertion of additional language at the end of subsection (c)(3), which limits the circumstances when a U.S. marshal or deputy marshal or specially appointed process server may be used; and 8) the deletion of section (k)(2) as inapplicable to local practice.

Subsection (c)(5) retains the language of former subsection (c)(4), which dealt with sending the defendant a request for an acknowledgment of service via first-class mail. However, the deadline to return the acknowledgment of service has been changed from 20 days to 21 days based on the time-calculation amendments to Rule 6. Additionally, a provision has been added that allows a party to recover the reasonable expenses, including attorney’s fees, for filing a motion to collect the costs of service incurred after the defendant failed to acknowledge service.

The provisions governing process service on the District of Columbia or a District of Columbia agency, officer, or employee were moved to subsection (j)(3) so that subsections (j)(1)-

(2) would align with the federal rule. Subsection (j)(3) was also amended to specify how service should be made when an officer or employee is sued in their individual capacity for something connected to their duties. Although subsection (j)(1) was omitted in prior versions of Rule 4, it has now been adopted because there are instances where foreign states may be sued in the District of Columbia. See 28 U.S.C. § 1608.

Section (m) was amended to include language previously found in section (o). Accordingly, section (o) has been deleted entirely.

In order to dispose of cases within the time limits set by the Chief Judge in an administrative order, the Superior Court rule retains the 60-day service provision in section (m). That 60-day provision permits cases to proceed to an initial hearing within 90-120 days of filing the complaint. Exceptions to that 60-day service provision include the collection and subrogation cases defined in Rule 40-III, cases filed under D.C. Code § 47-1370 (2015 Repl.) (see section (m)(1)(B)(i)), cases where an order of publication has been issued, and any other exceptions set forth in these rules or provided by statute, treaty (see section (f)), or other international law.

Finally, subsection (m)(4) includes the 2015 amendment to the federal rule, which clarified that the reference to Rule 4 in Rule 71.1(d)(3)(A) did not include Rule 4(m). Dismissal of actions condemning real or personal property is governed by Rule 71.1 and is not affected by Rule 4(m).

COMMENT

Federal Rule of Civil Procedure 4 was substantially revised and reorganized effective December 1, 1993. In order to maintain uniformity with the Federal Rule to the maximum extent feasible, Superior Court Rule of Civil Procedure 4 has been similarly revised and reorganized to match the structure and substance of the new Federal Rule in large part. Although most provisions of new Superior Court Rule 4 are identical to those of new Federal Rule 4, there are a few variations. Throughout the rule, reference is made to the initial order. This refers to the order setting the initial scheduling conference that is given to plaintiffs at the time of their filing the summons and complaint. Many of the other variations result from the obvious inapplicability of the federal provisions and thus require no explanation. A few of the variations merit comment.

Subdivision (a) of this rule is virtually identical to new Federal Rule 4(a) except for the final sentence, which has been added to preserve the substance of a useful provision, contained in former SCR-Civil 4(b), regarding the form of summons or notice to be used when service is made outside the District of Columbia or is based on the seizure of property within the District.

In subdivision (b), the prior Superior Court provision concerning the issuance of the summons has been retained, in lieu of the new federal rule provision. The prior Superior Court provision is well known to the Clerk’s Office and the Bar and has worked well.

In subdivision (c), a sentence has been added to paragraph (2) to retain the language, contained in former SCR-Civil 4(c)(2)(B), regarding the limited circumstances in which service by a U.S. marshal, deputy marshal, or specially appointed process server is permitted.

Paragraph 3 has been added to subdivision (c) to preserve the long-standing Superior Court practice of allowing service of a summons, complaint, and initial order by registered or certified mail, return receipt requested. This practice has been extensively used for years in this Court with great success and little difficulty. Paragraph 4 retains the language of former SCR-Civil 4(c)(2)(C) and (D) which deal with sending the defendant, via first-class mail, a request for an acknowledgment of service.

A paragraph (5) has been added to subdivision (c) to retain the provision of former SCR-Civil 4(c) allowing the plaintiff to attempt service through alternative means, either concurrently or successively.

In subdivision (j), paragraph 1 of the Federal Rule dealing with service upon a foreign national has been deleted as inapplicable to Superior Court jurisdiction. In its place has been inserted the provisions, previously contained in SCR-Civil 4(d)(4), governing service on the District of Columbia, or an officer of [or] agency thereof.

In subdivision (1), there has been inserted language describing the information required in affidavits of personal service and mail service. These provisions were previously contained in SCR-Civil 4(g).

Finally, Federal Rule 4(m), which allows 120 days to effect service or obtain a waiver thereof, has been replaced entirely with the language previously contained in Superior Court Rule 4(j). That provision allowed 60 days for effecting service so that the case could proceed to an Initial Scheduling Conference within 90-120 days of filing the complaint (except in cases where an order of publication has been issued) and disposition within the time limits recommended by the American Bar Association (i.e., one year in 90% of cases and two years in 100% of cases). The rule has an additional paragraph (o) allowing greater time for service of the summons in cases filed under D.C. Code § 47-1370.

Rule 4.1. Serving Other Process

(a) IN GENERAL. Process Service—other than a summons under Rule 4 or a subpoena under Rule 45—must be served by a United States marshal or deputy marshal or unless otherwise provided by statute, by a person who is not a party and not less than 18 years of age. It may be served anywhere within the territorial limits of the District of Columbia and, if authorized by an applicable statute, beyond those limits. Proof of service must be made under Rule 4(l).

(b) ENFORCING ORDERS: COMMITTING FOR CIVIL CONTEMPT. An order committing a person for civil contempt must be served only in the District of Columbia or within 100 miles of the District of Columbia.

COMMENT TO 2017 AMENDMENTS

This rule was amended to conform to the 2007 stylistic changes to Federal Rule of Civil Procedure 4.1. However, the Superior Court rule maintains several existing substantive differences, including the following language substitutions in section (a): 1) “unless otherwise provided by statute, by a person who is not a party and not less than 18 years of age” is substituted for “by a person specially appointed for that purpose”; 2) “District of Columbia” is substituted for “state where the district court is located”; and 3) “applicable statute” is substituted for “federal statute.” Also, section (b) conforms to D.C. Code § 11-943 (2012 Repl.), which provides that any order of commitment for civil contempt may be served not more than 100 miles from the District of Columbia.

COMMENT

Rule 4.1 is substantially identical to Federal Rule of Civil Procedure 4.1, which sets forth provisions on service of the process other than a summons or subpoena. Most of the variations from federal rule language are self-explanatory. The principal change involves the deletion from subdivision (b) of a provision for nationwide service of process of a Federal court order for civil commitment of a person held to be in contempt of a decree or injunction issued to enforce the laws of the United States. This provision is not applicable to Superior Court and has thus been deleted.

Rule 4-I. Process Service by Publication

(a) REQUIREMENTS. Notices relating to proceedings in this court of which publication is required must be published for the prescribed time in at least one legal newspaper or periodical of daily circulation and any other newspaper or periodical specifically designated by the court.

(b) PROOF BY AFFIDAVIT. Publication must be proved by the affidavit of an officer or agent of the publisher stating the dates of publication with an attached copy of the order as published.

(c) DEFINITION. For purposes of this rule, a legal newspaper or periodical of daily circulation means a publication designated by the court that is:

(1) devoted primarily to the publication of opinions, notices,d and other information from the courts of the District of Columbia;

(2) circulated generally to the legal community; and

(3) published at least on each weekday that the Superior Court is in session.

COMMENT TO 2017 AMENDMENTS

Stylistic changes were made to this rule to conform with the 2007 amendments to the Federal Rules of Civil Procedure.

Rule 5. Process Serving and Filing Pleadings and Other Papers

(a) SERVICE: WHEN REQUIRED.

(1) In General. Unless these rules provide otherwise, each of the following papers must be served on every party:

(A) an order stating that process service is required;

(B) a pleading filed after the original complaint unless the court orders otherwise;

(D) a written motion, except one that may be heard ex parte; and

(E) a written notice, appearance, demand, or offer of judgment, or any similar paper.

(2) If a Party Fails to Appear. A pleading that asserts a new claim for relief against a party in default must be served on that party under Rule 4.

(3) Seizing Property. If an action is begun by seizing property and no person is or need be named as a defendant, any process service required before the filing of an appearance, answer, or claim must be made on the person who had custody or possession of the property when it was seized.

(b) PROCESS SERVICE: HOW MADE.

(1) Process Service on an Attorney. If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party.

(2) Process Service in General. A paper is served under this rule by (A) handing it to the person;
(B) leaving it:

(i) at the person’s office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or

(ii) if the person has no office or the office is closed, at the person’s dwelling or usual place of abode with someone of suitable age and discretion who resides there;

(D) leaving it with the clerk’s office if the person has no known address;

(E) sending it to a registered user using the court’s electronic filing system or sending it by other electronic means that are permitted or required by administrative order or that the person consented to in writing—in which event service is complete upon sending, but is not effective if the filer or sender learns that it did not reach the person to be served; or

(F) delivering it by any other means that the person consented to in writing—in which event service is complete when the person making service delivers it to the agency designated to make delivery.

(1) In General. If an action involves an unusually large number of defendants, the court may, on motion or on its own, order that:

(A) defendants’ pleadings and replies to them need not be served on other defendants;

(B) any crossclaim, counterclaim, avoidance, or affirmative defense in those pleadings and replies to them will be treated as denied or avoided by all other parties; and

(2) Notifying Parties. A copy of every such order must be served on the parties as the court directs.

(d) FILING.

(1) Required Filings. Any paper after the complaint that is required to be served, other than those referred to in Rule 12-I(d)(2) and (e), must be filed no later than 7 days after process service. The following discovery requests and responses must not be filed except as provided in Rule 5(d)(2) or until they are used in the proceeding: depositions, interrogatories, requests for documents or tangible things or to permit entry onto land, and requests for admission.

(2) Discovery Requests and Responses.

(A) Without Leave of Court. Discovery requests and responses may be filed, without leave of court, if they are appended to a motion or opposition to which they are relevant.

(B) By Court Order. If not appended to a motion or opposition under Rule 5(d)(2)(A), a party may only file discovery requests and responses by court order.

(C) Retaining Discovery Papers. The requesting party must retain the original discovery paper, and must also retain personally, or make arrangements for the reporter to retain, in their original and unaltered form, any deposition transcripts until the case is concluded in this court, the time for noting an appeal or petitioning for a writ of certiorari has expired, and any appeal or petition has been decided.

(D) Certificate Regarding Discovery. A “CERTIFICATE REGARDING DISCOVERY,” setting forth all discovery that has occurred, must be filed with the court as an attachment to:

(i) any motion regarding discovery;

(ii) any opposition to a dispositive motion based on the need for discovery; and (iii) any motion to extend scheduling order dates.

(3) Non-Electronic Filing. A paper not filed electronically is filed by delivering it:

(A) to the clerk’s office; or

(B) to a judge who agrees to accept it for filing, and who must then note the filing date on the paper and promptly send it to the clerk’s office.

(4) Chambers Copy Required for Non-Electronic Filing. When a party files, by non- electronic means, a motion, papers related to the motion (e.g., an opposition, a memorandum of points and authorities, exhibits, or a proposed order), pretrial statements, or other papers described in Rule 16(d) and (e), the party must deliver a chamber copy to a depository designated by the clerk’s office for receipt of such papers by the assigned judge.

(A) Motions. With the chambers copy of a motion, the moving party must provide: (i) a proposed order; and

(ii) an addressed envelope or a mailing label for each counsel or unrepresented party to the case.

(B) Oppositions. With the chambers copy of an opposition, the filing party must provide a proposed order.

(C) Filing by Mail. If the original document was mailed, the chambers copy may be mailed to the chambers. But no other papers should be delivered to the judge’s chambers unless the assigned judge so orders.

(5) How Electronic Filing Is Made.

(A) In General. As permitted or required by statute, rule, or administrative order, pleadings and filings may be electronically filed. Electronic filing is complete on transmission unless the filing party learns that the attempted transmission was undelivered or undeliverable.

(B) Form of Electronically Filed Documents.

(i) Format. All electronic filings must, to the extent practicable, be formatted in accordance with the applicable rules governing the formatting of paper filings, and in any other format as the court may require.

(ii) Signatures. Every document filed electronically through the court’s authorized eFiling system is deemed to have been signed by the attorney who made or authorized the filing. Each filing must have either “/s/” or a typographical or imaged signature on the signature line. Below the signature line, the filing attorney must list his or her typed name, address, telephone number, email address, and Bar number.

(iii) Self-Represented Parties. If a self-represented party chooses to use the court’s authorized eFiling system, the same format and signature requirements listed in Rule 5(d)(5)(B)(i) and (ii) apply to him or her except that no Bar number is required. A self-represented party will be responsible for filing under Rule 11.

(C) Maintenance of Original Document. Unless the court orders otherwise, an original of all electronically filed documents, including original signatures, must be maintained by the filing party during the pendency of the case and through exhaustion of any appeals or appeal times, and the original documents must be made available, on reasonable notice, for inspection by other counsel or the court.

(D) Process Service of Original Complaint and Related Documents. After electronically filing the original complaint, a plaintiff is responsible for serving the defendant(s) in accordance with these rules. Proof of service must be filed electronically.

(E) Electronic Filing and Process Service of Orders and Other Papers. The court may issue, file, and serve notices, orders, and other documents electronically, subject to the provisions of these rules, statutes, or administrative orders.

(F) Who Must Electronically File. By statute, rule, or administrative order, all attorneys representing parties may be required to electronically file.

(G) Who May Electronically File. By statute, rule, or administrative order, any self-represented party, who has consented in writing, may electronically file and serve documents and may be electronically served if such activities are provided for by the court’s eFiling program.

(H) Failure to Process Transmission. If the electronic filing is not filed because of a failure to process it, through no fault of the filing party, the court must enter an order allowing the document to be filed nunc pro tunc to the date it was electronically filed, as long as the document is filed within 14 days of the attempted transmission.

(6) Same as a Written Paper. A paper filed electronically is a written paper for purposes of these rules.

(7) Exceptions to Electronic Filing.

(A) Documents Filed Under Seal. A motion to file documents under seal must be electronically filed and served. But the documents to be filed under seal must be filed in paper form unless a different procedure is required by statute, rule, the court, or administrative order. Documents filed under seal should be clearly marked as such by the filing party.

(B) Exhibits and Real Objects. Exhibits to declarations or other documents that are real objects (e.g., x-ray film or vehicle bumper) or which otherwise may not be comprehensibly viewed in an electronic format may be filed and served by non- electronic means, unless a different procedure is required by statute, rule, the court, or administrative order.

(i) Paper chambers copies of electronically filed documents exceeding 25 pages must be delivered to the clerk. Otherwise, unless specifically requested by the court or required by administrative order, paper chambers copies of electronically filed documents do not need to be delivered to the court.

(ii) When motions are served, unless otherwise provided by administrative order, a copy of the proposed order must be provided to the court in a format that can be edited. (e) PRIVACY REQUIREMENTS. Privacy requirements are set forth in Rule 5.2.

COMMENT TO 2019 AMENDMENTS

This rule incorporates many of the 2018 amendments to Federal Rule of Civil Procedure 5. The Superior Court rule already contained specific electronic filing provisions, but these were amended and reorganized to be more consistent with the newly-added federal electronic filing provisions. For instance, the provision declaring that “a paper filed electronically is a written paper for purposes of these rules” was moved from subsection (d)(5)(A) to new subsection (d)(6). The documents excepted from electronic filing were then moved to a new subsection (d)(7). The federal amendments to proof of service provisions are addressed in Rule 5-I. Finally, the reference to a judge’s eService email address in subsection (d)(7)(C)(ii) was deleted as obsolete.

COMMENT TO OCTOBER 2017 AMENDMENTS

Consistent with the Federal Rules of Civil Procedure, the provisions regarding privacy requirements appear in new Rule 5.2.

COMMENT TO MARCH 2017 AMENDMENTS

Rule 5 differs substantially from Federal Rule of Civil Procedure 5, as amended in 2007.

Subsection (a)(1)(B) excludes language from the federal rule that permits courts to make exceptions to the requirement that every pleading subsequent to the original complaint be served on each of the parties when there is a large number of defendants. This omission allows the court to make such exceptions in all cases. Subsection (a)(1)(E) omits the former reference to a designation of record on appeal. District of Columbia Court of Appeals Rule 10 is a self-contained provision for the record on appeal, and it provides for service. This provision has also been deleted from the federal rule. Deleted from subsection (a)(2) is the provision that no service need be made upon parties in default for failure to appear. It is required, for example, that a copy of a Rule 55-II(a) motion and affidavit be sent to a defendant who is in default. If new or additional claims are asserted against parties in default, then such parties must be served in the manner provided in Rule 4.

Subsection (b)(3) is omitted from this rule because it is inapplicable. The Superior Court does not supply parties with facilities to transmit electronically filed documents.

Section (d) differs substantially from its federal counterpart. It includes a significant amount of Superior Court specific material. Subsection (d)(1) is different in the following ways: 1) the substitution of language that specifies the 7-day period within which papers must be filed with the court; 2) the omission of language requiring a certificate of service; 3) the addition of a provision excluding papers filed under Rule 12-I(d)(2) and (e) from the filing requirements of section (d); and 4) the modification of language, which states that the specified discovery requests and responses must not be filed except as provided in subsection (d)(2) or until they are used in the proceeding.

Subsection (d)(2) is unique to the Superior Court rule. It provides exceptions for filing discovery papers. Additionally, it provides rules for retaining discovery papers and submitting certificates regarding discovery.

Subsection (d)(3) is the same as subsection (d)(2) of the federal rule except that the title has been modified and the phrase “clerk’s office” is substituted for “clerk” throughout.

Subsection (d)(4) is unique to the Superior Court rule. It provides the rules for submitting chambers copies. Specifically, it requires that any party filing a motion, any paper related to a motion or a pretrial statement, and other papers described in Rule 16(d) and (e), deliver a chambers copy of the motion or papers to the judge assigned to the case via a designated depository at the courthouse. If the original paper has been mailed, the copy can likewise be mailed. Note, as to this matter, original papers should never unless ordered otherwise, be filed with a judge.

Subsection (d)(5) replaces subsection (d)(3) of the federal rule. This subsection provides the specific rules for electronically filing documents in the Superior Court.

Subsection (d)(6) is unique to the Superior Court rule. It provides exceptions to the mandatory electronic filing rules in subsection (d)(5). Certain documents may be filed conventionally if they meet the requirements in this subsection.

Subsection (d)(4) of the federal rule is omitted in its entirety from Superior Court Rule 5.

COMMENT TO 2006 AMENDMENTS

This Rule expresses the Court’s concern about access to, and dissemination of, private information in the Court’s public records to the detriment of individuals whose privacy is compromised simply because their otherwise private information is contained in court filings. The risk of invasion of privacy is heightened where the court’s public records are made available through the internet. Although the Rule does not expressly prohibit all use of personal identifiers and other private information, such as home addresses, it is the policy of the Court that parties not include home addresses and other private information in any court filings unless it is necessary to the matter being litigated or is otherwise expressly required by statute or other Rules of the Court, such as, for example, Rules 16(a)(2), 10-I(b), and 4(l)(2).

COMMENT

Several changes are made to Federal Rule of Civil Procedure 5. Deleted from paragraph (a) is the provision that no service need be made upon parties in default for failure to appear. It is required, for example, that a copy of a Rule 55-II(a)(3) affidavit be sent to a defendant who is in default. If new or additional claims are asserted against parties in default, then such parties must be served in the manner provided in Rule 4. Unlike the federal rule which permits courts to make exceptions to the requirement that every pleading subsequent to the original complaint be served upon each of the parties because of the large number of defendants, the local rule would allow the Court to make such exceptions in all cases. Paragraph (d) specifies the time within which papers must be filed with the Court and provides that discovery papers or deposition transcripts shall not be filed unless relevant to a motion or opposition or authorized to be filed by order of the Court. Paragraph (e) requires that any party filing a motion, any paper related to a motion or a pretrial statement, and other papers described in SCR Civil 16(d) and (e), deliver a chambers copy of such motion or papers to the judge assigned to the case via a designated depository at the Courthouse. If the original paper has been mailed, the copy can likewise be mailed. Note, as to this matter, original papers should never unless ordered otherwise, be filed with a judge.

Rule 45. Subpoena

(a) IN GENERAL.
(1) Form and Contents.

(A) Requirements—In General. Every subpoena must:

(i) state the name of the court;

(ii) state the title of the action, its civil action number, the calendar number, when known, and if assigned to a specific judge or magistrate judge, the name of that judge or magistrate judge;

(iii) command each person to whom it is directed to do the following at a specified time and place within the District of Columbia, unless the parties and person subpoenaed otherwise agree or the court, upon application, fixes another convenient location: attend and testify; produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control; or permit the inspection of premises; and

(iv) set out the text of Rule 45(c) and (d).

(B) Command to Attend a Deposition—Notice of the Recording Method. A subpoena commanding attendance at a deposition must state the method for recording the testimony.

(C) Combining or Separating a Command to Produce or to Permit Inspection; Specifying the Form for Electronically Stored Information. A command to produce documents, electronically stored information, or tangible things or to permit the inspection of premises may be included in a subpoena commanding attendance at a deposition, hearing, or trial, or maybe set out in a separate subpoena. A subpoena may specify the form or forms in which electronically stored information is to be produced.

(D) Command to Produce; Included Obligations. A command in a subpoena to produce documents, electronically stored information, or tangible things require the responding person to permit inspection, copying, testing, or sampling of the materials.

(3) Issued by Whom. The clerk must issue a subpoena, signed but otherwise in blank, to a party who requests it. That party must complete it before service. An attorney authorized to practice in the District of Columbia also may issue and sign a subpoena.

(4) Notice to Other Parties Before Process Service. If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party.

(b) PROCESS SERVICE.

(1) By Whom and How; Tendering Fees. Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person’s attendance, tendering the fees for one day’s attendance and the mileage allowed by law. Fees and mileage need not be tendered when the subpoena issues on behalf of the United States or the District of Columbia or any officers or agencies of either.

(2) Process Service in the District of Columbia. Subject to Rule 45(c)(3)(A)(ii), a subpoena may be served at any place:

(A) within the District of Columbia;

(B) outside the District of Columbia but within 25 miles of the place specified for the deposition, hearing, trial, production, or inspection; or

(3) Process Service in a Foreign Country. 28 U.S.C. § 1783 governs issuing and serving a subpoena directed to a United States national or resident who is in a foreign country.

(4) Proof of Service. Process Service, when necessary, requires filing with the clerk of the court a statement showing the date and manner of process service and the names of the persons served. The statement must be certified by the process server.

(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court must enforce this duty and impose an appropriate sanction—which may include lost earnings and reasonable attorney’s fees—on a party or attorney who fails to comply.

(2) Command to Produce Materials or Permit Inspection.

(A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for deposition, hearing, or trial.

(B) Objections. A person commanded to produce documents, electronically stored information, or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or sampling any or all of the materials or to inspecting the premises—or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply:

(i) At any time, on notice to the commanded person, the serving party may move the court for an order compelling production or inspection.

(ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.

(3) Quashing or Modifying a Subpoena.

(A) When Required. On timely motion, the court must quash or modify a subpoena that:

(i) fails to allow reasonable time to comply;

(ii) requires a person who is neither a party nor a party’s officer to travel more than 25 miles from where that person resides, is employed, or regularly transacts business in person—except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place to the place of trial;

(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or

(iv) subjects a person to undue burden.

(B) When Permitted. To protect a person subject to or affected by a subpoena, the court may, on motion, quash or modify the subpoena if it requires:

(i) disclosing a trade secret or other confidential research, development, or commercial information;

(ii) disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the expert’s study that was not requested by a party; or

(iii) a person who is neither a party nor a party’s officer to incur substantial expense to travel more than 25 miles to attend the trial.

(C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:

(i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and

(ii) ensures that the subpoenaed person will be reasonably compensated. (d) DUTIES IN RESPONDING TO A SUBPOENA.

(1) Producing Documents or Electronically Stored Information. These procedures apply to produce documents or electronically stored information:

(A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.

(B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.

(C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form.

(D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

(2) Claiming Privilege or Protection.

(A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation materials must: (i) expressly make the claim; and

(ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.

(B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information under seal to the court for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.

(e) TRANSFERRING A SUBPOENA-RELATED MOTION. A subpoena-related motion may be transferred to the court where the action is pending if the person subject to the subpoena consents or if the court finds exceptional circumstances. To enforce its order, the court where the action is pending may transfer the order to the court where the motion was made.

(f) CONTEMPT. The court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it. A nonparty’s failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(c)(3)(A)(ii).

COMMENT TO 2017 AMENDMENTS

This rule conforms to the 2013 amendments to Federal Rule of Civil Procedure 45 with the following exceptions: 1) subsection (a)(2) of the federal rule, which states that “[a] subpoena must issue from the court where the action is pending,” has been omitted as inconsistent with language in the Uniform Interstate Depositions and Discovery Act (D.C. Code §§ 13-441 to -448 (2012 Repl.)) that instructs the Superior Court clerk to “issue a subpoena for service upon the person to which the foreign subpoena is directed”; 2) the amendment to permit service throughout the United States has been omitted as inconsistent with D.C. Code § 11-942 (2012 Repl.); 3) new section (c) of the federal rule has been rejected in order to maintain the Superior Court rule’s focus on place of service, which is also the focus of D.C. Code § 11-942 (2012 Repl.); 4) language in new section (e) (section (f) in the federal rule) has been modified to reflect omission of federal subsection (a)(2); and 5) the second sentence in section (f) of the federal rule, which authorizes an attorney to file papers and appear in a district court where s/he may not be barred, has been rejected as locally inapplicable.

COMMENT

Identical to Federal Rule of Civil Procedure 45, as amended in 2007, except for: (1) references to 100-mile limits in the federal rule have been changed to 25 miles, which preserves the geographic proportionality originally expressed by Congress in D.C. Code § 11-942; (2) the omission of the inapplicable subsection (a)(2); (3) the addition of language in subsection (a)(1)(A)(iii) providing that the deposition, production, or inspection of documents must be in the District of Columbia unless otherwise agreed or ordered by the court; and (4) the substitution of specific local language for inapplicable federal language in subsections (a)(1)(A)(i)–(ii), (a)(3), (b)(2), and (c)(3)(A)(ii).

This rule provides a means for issuing deposition subpoenas for nonresidents of the District of Columbia in cases which qualify but does not preclude the alternatives of filing with the court a motion for appointment of an examiner under Rule 28-I or resorting directly to the courts of another jurisdiction under its rules and statutes.

Subpoenas issued by attorneys under subsection (a)(3) must be substantially in the format of Civil Action Form 14.

Rule 5-I. Proof of Service

(a) IN GENERAL. Except as provided in Rule 5-I(b) or as otherwise provided by statute, proof of service for filings served under Rule 5 must be filed before any other action is taken on that filing. The proof must show the date and manner of service on the parties and delivery to the judge and may be made by:

(1) written acknowledgment;

(2) affidavit of the person making service or delivery;

(3) certificate of a member of the Bar of this court; or

(4) other proof satisfactory to the court.

(b) ELECTRONICALLY-FILED PAPER. No proof of service is required when a paper is served using the court’s electronic filing system.

(c) FAILURE TO MAKE PROOF; AMENDING PROOF. Failure to make proof will not affect the validity of service. The court may at any time allow the proof to be amended or supplied unless to do so would result in material prejudice to a party.

COMMENT TO 2019 AMENDMENTS

Consistent with the 2018 amendments to Federal Rules of Civil Procedure 5, this rule was amended to eliminate the proof of service requirement where a paper was served with the court’s electronic filing system.

COMMENT TO 2017 AMENDMENTS

Stylistic changes were made to this rule to conform with the 2007 amendments to the Federal Rules of Civil Procedure.

For information on serving legal papers visit www.undisputedlegal.com or call (800) 774-6922 representatives are available Monday-Friday 8 am – 8 pm EST. If you found this article helpful please consider giving a donation. Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and visit us again!