Original
The Online Conference for Process Servers. March 26th & 27th.
Early-bird registration available for a limited time.
The Trusted Network of Process Servers

North Dakota Rules of Civil Procedure

Does a process server have to be licensed in North Dakota?

No. Visit ServeNow.com’s Become a Process Server page for more information.

North Dakota Process Server Licensing Requirements

Service of all process may be made: within the state by any person of legal age not a party to nor interested in the action; and outside the state by any person who may make service under the law of this state or under the law of the place in which service is made or who is designated by a court of this state.

North Dakota Rules of Civil Procedure

Please note that lobbyists are active in the state of North-Dakota and laws concerning civil procedure and process serving can change. Therefore the information listed below may have been amended. For updated process serving legislation, please visit the North Dakota State Legislature web site. North Dakota State Legislature web site.

Rule 4. Persons Subject to Jurisdiction – Process – Service

Rule 45. Subpoena

Rule 4. Persons Subject to Jurisdiction-Process-Service

Definition of Person.

As used in this rule, “person”, whether or not a citizen or domiciliary of this state and whether or not organized under the laws of this state, includes: an individual, executor, administrator or other personal representative; any other fiduciary; any two or more persons having a joint or common interest; a partnership; an association; a corporation; and any other legal or commercial entity.

Jurisdiction Over Person.

Process.

Personal Service.

Service by Publication.

Service Upon a Person in a Foreign Country.

Unless otherwise provided by law, service upon an individual, other than an infant or an incompetent person, may be effected in a place not within any judicial district of the United States:

When Service by Publication or Outside State Complete.

Service by publication is complete upon the expiration of fifteen days after the first publication of the summons. Personal service of the summons and complaint upon the defendant out of state is complete upon the expiration of fifteen days after the date of service.

Amendment.

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

Proof of Service.

Proof of service of the summons and of the complaint or notice, if any, accompanying the same or of other process, must be made as follows:

Content of Proof of Service.

The certificate, affidavit or admission of service mentioned in subdivision (h) of this rule must state the date, time, place and manner of service. If the process, pleading, order of court, or other paper is served personally by a person other than the sheriff or person designated by law, the affidavit of service must also state that the server is of legal age and not a party to the action nor interested in the action, and that the server knew the person served to be the person named in the papers served and the person intended to be served.

Content of Affidavit of Mailing or Delivery via a Third-party Commercial Carrier.

An affidavit of mailing or delivery required by this rule must state a copy of the process, pleading, order of court, or other paper to be served was deposited by the affiant, with postage or shipping prepaid, in the mail or with a third-party commercial carrier and directed to the party shown in the affidavit to be served at the party’s last reasonably ascertainable address. The affidavit must contain the date and place of deposit and indicate the affiant is of legal age. The return receipt, if any, must be attached to the affidavit.

Effect of Mail or Delivery Refusal.

If a summons and complaint or other process is mailed or sent with delivery restricted and requiring a receipt signed by the addressee, the addressee’s refusal to accept the mail or delivery constitutes delivery. Return of the mail or delivery bearing an official indication on the cover delivery was refused by the addressee is prima facie evidence of the refusal.

EXPLANATORY NOTE

Rule 4 was amended, effective 1971; January 1, 1976; January 1, 1977; January 1, 1979; September 1, 1983; March 1, 1986; March 1, 1990; March 1, 1996; March 1, 1998; March 1, 1999.

Rule 4 governs civil jurisdiction and service of process. In contrast, Rule 5 applies to service of papers other than process.

Rule 4 was amended, effective March 1, 1999, to allow delivery via a third-party commercial carrier as an alternative to the Postal Service. The requirement for a “third-party” is consistent with the rule’s requirement for personal service by a person not a party to nor interested in the action. The requirement for a “commercial carrier” means it must be the regular business of the carrier to make deliveries for profit. A law firm may not act as its own commercial carrier service for service of process. Finally, the phrase “commercial carrier” is not intended to include or authorize electronic delivery. Service via e-mail or facsimile transmission is not permitted by Rule 4.

Originally, Rule 4 concerned process, with no mention of jurisdiction. In 1971, what are now subdivisions (a) [Definition of Person] and (b) [Jurisdiction Over Person] were added. They were taken from the Uniform Interstate and International Procedure Act. Many changes were also made to subdivision (d) [previously (c) ] concerning personal service, several of which were taken from that Act. Subdivision (c) was amended, effective March 1, 1998, to provide a defendant with the means to compel the plaintiff to file the action.

Subdivision (d) was amended, effective March 1, 1998, to allow personal service by delivering a copy of the summons to an individual’s spouse.

A problem may arise with service by mail or delivery by third-party commercial carrier, under subdivisions (d)(2) or (d)(3) (C) when the person to be served refuses delivery. This refusal of delivery is tantamount to receipt of the mail or delivery for purposes of service. On the other hand, if the mail or delivery is unclaimed, no service is made. Subdivision (l) was added in 1983, effective September 1, 1983, to make it clear that refusal of delivery by the addressee constitutes delivery.

Statutes governing special procedures often conflict with these rules. As an example, N.D.C.C. 32-19-32 concerning the time period for mailing the summons and complaint after publication in a mortgage foreclosure conflicts with Rule 4(e)(4). In this situation, Rules 4(d)(4) and 81(a) recognize that provisions of the statute prevail.

A new subdivision (f) was added, effective March 1, 1996, to provide procedures for service upon a person in a foreign country. The new procedures follow Rule 26(f), Fed.R.Civ.P. The letter designation of each subdivision was changed accordingly.

SOURCES: Joint Procedure Committee Minutes of April 30-May 1, 1998, pages 3, 8, and 11; January 29-30, 1998, pages 17-18; September 25-26, 1997, page 2; January 30, 1997, pages 6-7, 10-12; September 26-27, 1996, pages 14-16; January 26-27, 1995, pages 7-8; April 20, 1989, page 2; December 3, 1987, pages 1-4 and 11; May 21-22, 1987, page 5; November 29, 1984, pages 3-5; September 30-October 1, 1982, pages 15-18; April 15-16, 1982, pages 2-5; December 11-12, 1980, page 2; October 30-31, 1980, page 31; January 17-18, 1980, pages 1-3; November 29-30, 1979, page 2; October 27-28, 1977, page 10; April 8-9, 1976, pages 5-9; Rule 4, FRCivP.

STATUTES AFFECTED: SUPERSEDED: Sections 28-0502, 28-0503, 28-0504, 28-0505, 28-0601, 28-0602, 28-0603, 28-0604, 28-0605, 28-0606, 28-0607, 28-0608, 28-0609, 28-0610, 28-0616, 28-0619, 28-0620, 28-0621, 28-0622, 28-0623, 28-0624, 28-0625, 28-0626, 28-0627, 28-0628, 28-0629, 28-0632, 28-3001, NDRC 1943, and Chapters 28-06, 28-06.1, N.D.C.C. CROSS REFERENCE: Rules 5 (Service and Filing of Pleadings and Other Papers), 45 (Subpoena), and 81 (Applicability In General), N.D.R.Civ.P.; Rule 8.4 (Summons in Action for Divorce or Separation), N.D.R.Ct.. [Effective March 1, 1999]


Rule 45. Subpoena

Form; Issuance

Service; Notice.

Protection of person subject to subpoenas:

Duties in Responding to Subpoena.

Contempt.

Failure by any person without adequate excuse to obey a subpoena served upon that person may be a contempt of the court from which the subpoena issued. An adequate cause for failure to obey exists when a subpoena purports to require a non-party to attend or produce at a place not within the limits provided by paragraph (c) (3).

Notice.

All subpoenas commanding pretrial or prehearing production, inspection or copying must contain the following notice:

“You may object to this subpoena by sending or delivering a written objection, stating your valid reason, to {Insert the name and address of the party, or attorney representing the party seeking production, inspection or copying}. Any objection must be received within 10 days after you receive the subpoena. If the time specified in the subpoena for compliance is less than 10 days, any objection must be received at least 24 hours before the time specified for compliance.

If you make a timely objection, you do not need to comply with this subpoena unless the court orders otherwise. You will be notified if the party serving the subpoena seeks a court order compelling compliance with this subpoena. You will then have the opportunity to contest enforcement.

Failure to obey this subpoena, without making a timely objection, and stating a valid reason, may be contempt of court.”

EXPLANATORY NOTE

Rule 45 was amended, effective July 1, 1981; January 1, 1988; January 1, 1995; March 1, 1997; March 1, 1999.

Rule 45 was revised, effective January 1, 1995, in response to the 1991 federal revision. Significant changes to North Dakota’s rule include the following: (1) An action must be filed before a subpoena may issue; (2) A subpoena may compel a non-party to produce evidence independent of any deposition; (3) A subpoena may compel the inspection of premises in the possession of a non-party upon order of the court for good cause shown; and (4) Notice must be printed on a subpoena advising of the right to object when pretrial or prehearing production or inspection is commanded. The scope of discovery under Rule 26 is not intended to be altered by the revision.

Subdivision (f) was amended, effective March 1, 1999, to allow an objection to a subpoena to be sent via a commercial carrier as an alternative to mail.

SOURCES: Joint Procedure Committee Minutes of January 29-30, 1998, page 20; January 25-26, 1996, page 20; January 27-28, 1994, pages 11-16; April 29-30, 1993, pages 4-8, 18-20; January 28-29, 1993, pages 2-7; May 21-22, 1987, page 3; February 19-20, 1987, pages 3-4; October 30-31, 1980, pages 26-29; November 29-30, 1979, page 12; Rule 45, FRCivP.

STATUTES AFFECTED: SUPERSEDED: Sections 31-0113, 31-0120, 31-0121, 31-0302, 31-0303, 31-0305, 31-0306, 31-0310, 31-0311, 31-0312, 31-0314, NDRC 1943; Section 31-05-22, N.D.C.C. CROSS REFERENCE: Rules 26 (General Provisions Governing Discovery), 30 (Depositions Upon Oral Examination), and 31 (Depositions of Witnesses Upon Written Questions), N.D.R.Civ.P.; Rule 17 (Subpoena) N.D.R.Crim.P.

You should contact an North Dakota Process Server if you have specific questions about Process Serving in North Dakota.