Bill Text: NC S300 | 2011-2012 | Regular Session | Amended
Bill Title: Miscellaneous Service/Process Amendments
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2011-06-27 - Ch. SL 2011-332 [S300 Detail]
Download: North_Carolina-2011-S300-Amended.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2011
S 2
SENATE BILL 300*
House Committee Substitute Favorable 6/15/11
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Short Title: Miscellaneous Service/Process Amendments. |
(Public) |
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Sponsors: |
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Referred to: |
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March 10, 2011
A BILL TO BE ENTITLED
AN ACT to (1) allow service by signature confirmation or designated delivery service in small claim actions assigned to magistrates and in administrative cases, (2) clarify that the sixty‑day time frame for serving a summons under rule 4 of the rules of civil procedure applies to all summonses under rule 4(J) and (j1), (3) require that a copy of a motion to terminate parental rights that is servEd on a parent be sent to that parent's attorney of record, if any, (4) require that a party's attorney of record, if any, must be served when service is made under rule 5(b) of the rules of civil procedure, in addition to any service on the party, and (5) clarify that an attorney may be served under rule 5(b) by mail, as recommended by the general statutes commission.
The General Assembly of North Carolina enacts:
SERVICE BY DESIGNATED DELIVERY SERVICE IN SMALL CLAIMS CASES
SECTION 1.1. G.S. 7A‑217 reads as rewritten:
"§ 7A‑217. Methods of subjecting person of defendant to jurisdiction.
When by order or rule a small claim action is assigned to a
magistrate, the defendant may be subjected to the jurisdiction of the court
over his person the court may obtain jurisdiction over the person of the
defendant by the following methods:
(1) By delivering a copy of the summons and of the
complaint to him the defendant or by leaving copies thereof at
the defendant's dwelling house or usual place of abode with some person of
suitable age and discretion then residing therein. When the defendant is under
any legal disability, he the defendant may be subject subjected
to personal jurisdiction only by personal service of process in the manner
provided by law.G.S. 1A‑1, Rule 4(j)(2).
(2) When the defendant is not under any legal
disability, he the defendant may be served by registered or
certified mail mail, signature confirmation, or designated delivery
service as provided in G.S. 1A‑1, Rule 4(j). Proof of service is
as provided in G.S. 1A‑1, Rule 4(j2).
(3) When the defendant is under no legal disability, he
the defendant may be subjected to the jurisdiction of the court over
his person by his the person of the defendant by written
acceptance of service, service or by his voluntary
appearance.
(4) In summary ejectment cases only, service as provided in G.S. 42‑29 is also authorized."
SERVICE BY DESIGNATED DELIVERY IN ADMINISTRATIVE CASES
SECTION 2.1. G.S. 150B‑23(c) reads as rewritten:
"§ 150B‑23. Commencement; assignment of administrative law judge; hearing required; notice; intervention.
…
(c) Notice shall be given personally or by
certified mail. by one of the methods for service of process under G.S. 1A‑1,
Rule 4(j) or Rule 4(j3). If given by registered or certified mail, it
by signature confirmation as provided by the United States Postal
Service, or by designated delivery service authorized pursuant to 26 U.S.C. §
7502(f)(2) with delivery receipt, notice shall be deemed to have been given
on the delivery date appearing on the return receipt. receipt, copy
of the proof of delivery provided by the United States Postal Service, or
delivery receipt. If giving of notice cannot be accomplished either
personally or by certified mail, by a method under G.S. 1A‑1,
Rule 4(j) or Rule 4(j3), notice shall then be given in the manner provided
in G.S. 1A‑1, Rule 4(j1).
…."
SECTION 2.2. G.S. 150B‑36(b3) reads as rewritten:
"(b3) Except as provided in G.S. 150B‑34(c),
the agency shall adopt the decision of the administrative law judge unless the
agency demonstrates that the decision of the administrative law judge is
clearly contrary to the preponderance of the admissible evidence in the record.
If the agency does not adopt the administrative law judge's decision as its
final decision, the agency shall set forth its reasoning for the final decision
in light of the findings of fact and conclusions of law in the final decision,
including any exercise of discretion by the agency. The agency may consider
only the official record prepared pursuant to G.S. 150B‑37 in making
a final decision. A copy of the decision shall be served upon each party personally
or by certified mail by one of the methods for service of process under G.S. 1A‑1,
Rule 5(b). If service is by registered, certified, or first‑class mail,
by signature confirmation as provided by the United States Postal Service, or by
designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery
receipt, the copy shall be addressed to the party at the latest address
given by the party to the agency, and a agency. Service by one of the
additional methods provided in G.S. 1A‑1, Rule 5(b), is effective as
provided therein and shall be accompanied by a certificate of service as
provided in G.S. 1A‑1, Rule 5(b1). G.S. 1A‑1, Rule 6(e),
applies if service is by first‑class mail. A copy shall be furnished
to his the party's attorney of record and the Office of
Administrative Hearings."
SECTION 2.3. G.S. 150B‑38(c) reads as rewritten:
"(c) Notice shall be given personally or by
certified mail. by one of the methods for service of process under G.S. 1A‑1,
Rule 4(j) or Rule 4(j3). If given by registered or certified mail, by
signature confirmation as provided by the United States Postal Service, or by
designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with
delivery receipt, notice shall be deemed to have been given on the delivery
date appearing on the return receipt. receipt, copy of proof of
delivery provided by the United States Postal Service, or delivery receipt. If
notice cannot be given personally or by certified mail, by one of the
methods for service of process under G.S. 1A‑1, Rule 4(j) or Rule
4(j3), then notice shall be given in the manner provided in G.S. 1A‑1,
Rule 4(j1)."
SECTION 2.4. G.S. 150B‑42(a) reads as rewritten:
"(a) After compliance with the provisions of G.S. 150B‑40(e),
if applicable, and review of the official record, as defined in subsection (b)
of this section, an agency shall make a written final decision or order in a
contested case. The decision or order shall include findings of fact and
conclusions of law. Findings of fact shall be based exclusively on the evidence
and on matters officially noticed. Findings of fact, if set forth in statutory
language, shall be accompanied by a concise and explicit statement of the
underlying facts supporting them. A decision or order shall not be made except
upon consideration of the record as a whole or such portion thereof as may be
cited by any party to the proceeding and shall be supported by substantial
evidence admissible under G.S. 150B‑41. A copy of the decision or
order shall be served upon each party personally or by certified mail by
one of the methods for service of process under G.S. 1A‑1, Rule 5(b).
If service is by registered, certified, or first‑class mail, by signature
confirmation as provided by the United States Postal Service, or by designated
delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery
receipt, the copy shall be addressed to the party at the latest address
given by the party to the agency and a agency. Service by one of the
additional methods provided in G.S. 1A‑1, Rule 5(b), is effective as
provided therein and shall be accompanied by a certificate of service as
provided in G.S. 1A‑1, Rule 5(b1). G.S. 1A‑1, Rule 6(e),
applies if service is by first‑class mail. A copy shall be furnished
to his the party's attorney of record."
ALL SUMMONSES UNDER RULE 4 TO BE SERVED WITHIN 60 DAYS
SECTION 3.1. G.S. 1A‑1, Rule 4(c), reads as rewritten:
"(c) Summons – Return. – Personal service or
substituted personal service of summons as prescribed by Rule 4(j)(1) a and
b Rules 4(j) and (j1) must be made within 60 days after the date of
the issuance of summons. When a summons has been served upon every party named
in the summons, it shall be returned immediately to the clerk who issued it,
with notation thereon of its service.
Failure to make service within the time allowed or failure to return a summons to the clerk after it has been served on every party named in the summons shall not invalidate the summons. If the summons is not served within the time allowed upon every party named in the summons, it shall be returned immediately upon the expiration of such time by the officer to the clerk of the court who issued it with notation thereon of its nonservice and the reasons therefor as to every such party not served, but failure to comply with this requirement shall not invalidate the summons."
REQUIRING SERVICE ON ATTORNEYS OF RECORD UNDER RULE 5(B) AND IN TERMINATION OF PARENTAL RIGHTS BY MOTION
SECTION 4.1. G.S. 7B‑1102 reads as rewritten:
"§ 7B‑1102. Pending child abuse, neglect, or dependency proceedings.
(a) When the district court is exercising jurisdiction over a juvenile and the juvenile's parent in an abuse, neglect, or dependency proceeding, a person or agency specified in G.S. 7B‑1103(a) may file in that proceeding a motion for termination of the parent's rights in relation to the juvenile.
(b) A motion pursuant to subsection (a) of this section and the notice required by G.S. 7B‑1106.1 shall be served in accordance with G.S. 1A‑1, Rule 5(b), except:
(1) Service must be in accordance with G.S. 1A‑1, Rule 4, if one of the following applies:
a. The person or agency to be served was not served originally with summons.
b. The person or agency to be served was served originally by publication that did not include notice substantially in conformity with the notice required by G.S. 7B‑406(b)(4)e.
c. Two years has elapsed since the date of the original action.
(2) In any case, the court may order that service of the motion and notice be made pursuant to G.S. 1A‑1, Rule 4.
For purposes of this section, the parent of the juvenile shall not be deemed to be under disability even though the parent is a minor.
(b1) If a parent who is served under G.S. 1A‑1, Rule 4, with a motion under this section has an attorney of record, a copy of the motion and the notice served upon the parent shall also be sent to the parent's attorney.
(c) When a petition for termination of parental rights is filed in the same district in which there is pending an abuse, neglect, or dependency proceeding involving the same juvenile, the court on its own motion or motion of a party may consolidate the action pursuant to G.S. 1A‑1, Rule 42."
SECTION 4.2. G.S. 1A‑1, Rule 5(b), reads as rewritten:
"(b) Service – How made. – A pleading setting forth
a counterclaim or cross claim shall be filed with the court and a copy thereof
shall be served on the party against whom it is asserted or on the party's
attorney of record. record as provided by this subsection. With
With respect to all pleadings subsequent to the
original complaint and other papers required or permitted to be served, service
with due return may be made in the manner provided for service and return of
process in Rule 4 and may be made upon either the party or, unless service upon
the party personally is shall be made upon the party's attorney of
record and, if ordered by the court, upon the party's attorney of
record. With court, also upon the party. If the party has no attorney of
record, service shall be made upon the party. With respect to such other
pleadings and papers, service upon the attorney or upon a party with
due return may be made in a manner provided for service and return of process
in Rule 4. Service under this subsection may also be made by one of the
following methods:
(1) Upon a party's attorney of record:
a. By delivering a copy to the attorney.
party or by mailing it to the party at the party's last known address
or, if no address is known, by filing it with the clerk of court. Delivery
of a copy within this rule sub‑subdivision means handing it
to the attorney or to the party, attorney, leaving it at the
attorney's office with a partner or employee, or by sending it to the
attorney's office by a confirmed telefacsimile transmittal for receipt by 5:00
P.M. Eastern Time on a regular business day, as evidenced by a telefacsimile
receipt confirmation. If receipt of delivery by telefacsimile is after 5:00
P.M., service will be deemed to have been completed on the next business day.
b. By mailing a copy to the attorney's office.
(2) Upon a party:
a. By delivering a copy to the party. Delivery of a copy within this sub‑subdivision means handing it to the party.
b. By mailing a copy to the party at the party's last known address or, if no address is known, by filing it with the clerk of court.
Service by mail shall be complete upon deposit of the pleading or paper enclosed in a post‑paid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service.
(b1) Service – Certificate of Service. – A certificate of service shall accompany every pleading and every paper required to be served on any party or nonparty to the litigation, except with respect to pleadings and papers whose service is governed by Rule 4. The certificate shall show the date and method of service or the date of acceptance of service and shall show the name and service address of each person upon whom the paper has been served. If one or more persons are served by facsimile transmission, the certificate shall also show the telefacsimile number of each person so served. Each certificate of service shall be signed in accordance with and subject to Rule 11 of these rules."
EFFECTIVE DATES AND APPLICABILITY
SECTION 5. This act becomes effective October 1, 2011. Section 1.1 of this act applies to small claims actions filed on or after that date. Section 2.1 and Section 2.3 of this act apply to notices given on or after that date. Section 2.2 and Section 2.4 of this act apply to decisions or orders served on or after that date. Section 3.1 of this act applies to summonses issued on or after that date. Section 4.1 of this act applies to motions filed on or after that date. Section 4.2 of this act applies to service made under G.S. 1A‑1, Rule 5(b), on or after that date.
