MAINE RULES OF CIVIL PROCEDURE

1. Summons: Form
2. Summons: Issuance
3. Service
4. Summons: Personal Service
5. Personal Service Outside State
6. Service by Mail in Certain Actions
7. Service by Alternate: Motion Required
8. Return of Service
9. Amendment
10. Alternate Provisions for Service in a Foreign Country           

RULE 4. PROCESS
(a) Summons: Form.

The summons shall bear the signature or facsimile
signature of the clerk; be under the seal of the court; contain the name of the
court and the names of the parties; be directed to the defendant; state the
name and address, including email address, of the plaintiff’s attorney and the
time within which these rules require the defendant to appear and defend;
and shall notify the defendant that in case of failure to do so judgment by
default will be rendered against the defendant for the relief demanded in the complaint.

(b) Same: Issuance.

The summons may be procured in blank from the
clerk and shall be filled out by the plaintiff’s attorney as provided in
subdivision (a) of this rule. The plaintiff’s attorney shall deliver to the person
who is to make service the original summons upon which to make return of
service and a copy of the summons, complaint, and notice regarding Electronic
Service for service upon the defendant. The notice regarding Electronic
Service shall instruct parties who are represented by counsel that they are
subject to the requirements of Electronic Service under Rule 5; shall notify
unrepresented parties of their right to opt in to Electronic Service, including
the technological requirements to opt in; and shall provide them with
instructions for opting in.

(c) Service.

Service of the summons, complaint, and notice regarding 
Electronic Service may be made as follows:
(1) By mailing a copy of the summons, complaint, and notice
regarding Electronic Service (by first-class mail, postage prepaid) to the
person to be served, together with two copies of a notice and
acknowledgment form and a return envelope, postage prepaid, addressed to
the sender. If no acknowledgment of service under this paragraph is received
by the sender within 20 days after the date of mailing, service of the
summons, complaint, and notice regarding Electronic Service shall be made
under paragraph (2) or (3) of this subdivision.
(2) By a sheriff or a deputy within the sheriff’s county, or other
person authorized by law, or by some person specially appointed by the court
for that purpose. Special appointments to serve process shall be made freely
when substantial savings in travel fees will result.
(3) By any other method permitted or required by this rule or by
statute. 

(d) Summons: Personal Service.

The summons, complaint, and notice
regarding Electronic Service shall be served together. Personal service within
the state shall be made as follows:
(1) Upon an individual other than a minor or an incompetent
person, by delivering a copy of the summons, complaint, and notice regarding
Electronic Service to the individual personally or by leaving copies thereof at
the individual’s dwelling house or usual place of abode with some person of
suitable age and discretion then residing therein or by delivering a copy of the
summons, complaint, and notice regarding Electronic Service to an agent
authorized by appointment or by law to receive service of process, provided
that if the agent is one designated by statute to receive service, such further
notice as the statute requires shall be given. The court, on motion, upon a
showing that service as prescribed above cannot be made with due diligence,
may order service to be made pursuant to subdivision (g) of this rule.
(2) Upon a minor, by delivering a copy of the summons,
complaint, and notice regarding Electronic Service personally (a) to the minor
and (b) also to the minor’s guardian if the minor has one within the state,
known to the plaintiff, and if not, then to the minor’s father or mother or other
person having the minor’s care or control, or with whom the minor resides, or
if service cannot be made upon any of them, then as provided by order of the
court.
(3) Upon an incompetent person, by delivering a copy of the
summons, complaint, and notice regarding Electronic Service personally (a) to
the guardian of the incompetent person or a competent adult member of the
incompetent person’s family with whom the incompetent person resides, or if
the incompetent person is living in an institution, then to the director or chief
executive officer of the institution, or if service cannot be made upon any of
them, then as provided by order of the court and (b) unless the court
otherwise orders, also to the incompetent person.
(4) Upon a county, by delivering a copy of the summons,
complaint, and notice regarding Electronic Service to one of the county
commissioners or their clerk or the county treasurer.
(5) Upon a town, by delivering a copy of the summons, complaint,
and notice regarding Electronic Service to the clerk or one of the selectmen or
assessors.
(6) Upon a city, by delivering a copy of the summons, complaint,
and notice regarding Electronic Service to the clerk, treasurer, or manager.
(7) Upon the United States, by delivering a copy of the summons,
complaint, and notice regarding Electronic Service to the United States
attorney for the district of Maine or to an assistant United States attorney or
clerical employee designated by the United States attorney in a writing filed
with the clerk of the United States District Court for the district of Maine and
by sending a copy of the summons, complaint, and notice regarding Electronic
Service by registered or certified mail to the Attorney General of the United
States at Washington, District of Columbia, and in any action attacking the
validity of an order of an officer or agency of the United States not made a
party, by also sending a copy of the summons, complaint, and notice regarding
Electronic Service by registered or certified mail to such officer or agency
provided that any further notice required by statute or regulation shall also be
given.
Upon an officer or agency of the United States, by serving the
United States and by delivering a copy of the summons, complaint, and notice
regarding Electronic Service to such officer or agency, provided that any
further notice required by statute or regulation shall also be given. If the
agency is a corporation the copy shall be delivered as provided in paragraph
(8) or (9) of this subdivision of this rule.
Upon any other public corporation, by delivering a copy of the
summons, complaint, and notice regarding Electronic Service to any officer,
director, or manager thereof and upon any public body, agency or authority by
delivering a copy of the summons, complaint, and notice regarding Electronic
Service to any member thereof.
(8) Upon a domestic private corporation (a) by delivering a copy
of the summons, complaint, and notice regarding Electronic Service to any
officer, director or general agent; or, if no such officer or agent be found, to
any person in the actual employment of the corporation; or, if no such person
be found, then pursuant to subdivision (g) of this Rule, provided that the
plaintiff’s attorney shall also send a copy of the summons, complaint, and
notice regarding Electronic Service to the corporation by registered or
certified mail, addressed to the corporation’s principal office as reported on
its latest annual return; or (b) by delivering a copy of the summons,
complaint, and notice regarding Electronic Service to any agent or attorney in
fact authorized by appointment or by statute to receive or accept service on
behalf of the corporation, provided that any further notice required by the
statute shall also be given.
(9) Upon a corporation established under the laws of any other
state or country (a) by delivering a copy of the summons, complaint, and
notice regarding Electronic Service to any officer, director or agent, or by
leaving such copies at an office or place of business of the corporation within
the state; or (b) by delivering a copy of the summons, complaint, and notice
regarding Electronic Service to any agent or attorney in fact authorized by
appointment or by statute to receive or accept service on behalf of the
corporation, provided that any further notice required by the statute shall also
be given.
(10) Upon a partnership subject to suit in the partnership name in
any action, and upon all partners whether within or without the state in any
action on a claim arising out of partnership business, (a) by delivering a copy
of the summons, complaint, and notice regarding Electronic Service to any
general partner or any managing or general agent of the partnership, or by
leaving such copies at an office or place of business of the partnership within
the state; or (b) by delivering a copy of the summons, complaint, and notice
regarding Electronic Service to any agent, attorney in fact, or other person
authorized by appointment or by statute to receive or accept service on behalf
of the partnership, provided that any further notice required by the statute
shall also be given.
(11) Upon the State of Maine by delivering a copy of the summons,
complaint, and notice regarding Electronic Service to the Attorney General of
the State of Maine or one of the Attorney General’s deputies, either
(a) personally or (b) by registered or certified mail, return receipt requested;
and in any action attacking the validity of an order of an officer or agency of
the State of Maine not made a party, by also sending a copy of the summons,
complaint, and notice regarding Electronic Service by ordinary mail to such
officer or agency. The provisions of Rule 4(f) relating to completion of service
by mail shall here apply as appropriate.
(12) Upon an officer or agency of the State of Maine by the
method prescribed by either paragraph (1) or (7) of this subdivision as
appropriate, and by also sending a copy of the summons, complaint, and
notice regarding Electronic Service by ordinary mail to the Attorney General
of the State of Maine.
(13) Upon all trustees of an express trust, whether within or
without the state, in any action on a claim for relief against the trust, except an
action by a beneficiary in that capacity, (a) by delivering a copy of the
summons, complaint, and notice regarding Electronic Service to any trustee,
or by leaving such copies at an office or place of business of the trust within
the state; or (b) by delivering a copy of the summons, complaint, and notice
regarding Electronic Service to any agent or attorney in fact authorized by
appointment or by statute to receive or accept service on behalf of the trust,
provided that any further notice required by the statute shall also be given.
(14) Upon another state of the United States, by the method
prescribed by the law of that state for service of process upon it. 

(e) Personal Service Outside State.

A person who is subject to the
jurisdiction of the courts of the state may be served with the summons,
complaint, and notice regarding Electronic Service outside the state, in the
same manner as if such service were made within the state, by any person
authorized to serve civil process by the laws of the place of service or by a
person specially appointed to serve it. An affidavit of the person making
service shall be filed with the court stating the time, manner, and place of
service. Such service has the same force and effect as personal service within
the state. 

(f) Service by Mail in Certain Actions.

(1) Outside State. Where service cannot, with due diligence, be
made personally within the state, service of the summons, complaint, and
notice regarding Electronic Service may be made upon a person who is subject
to the jurisdiction of the courts of the state by delivery to that person outside
the state by registered or certified mail, with restricted delivery and return
receipt requested, in the following cases: where the pleading demands a
judgment that the person to be served be excluded from a vested or
contingent interest in or lien upon specific real or personal property within
the state, or that such an interest or lien in favor of either party be enforced,
regulated, defined or limited, or otherwise affecting the title to any property.
(2) Family Division Actions. Service of the summons, complaint,
and notice regarding Electronic Service or a post-judgment motion may be
made in an action pursuant to Chapter XIII of these Rules upon a person who
is subject to the jurisdiction of the courts of the state by delivery to that
person, whether in or outside the state, by registered or certified mail, with
restricted delivery and return receipt requested.
(3) Service Completion. Service by registered or certified mail
shall be complete when the registered or certified mail is delivered and the
return receipt signed or when acceptance is refused, provided that the
plaintiff shall file with the court either the return receipt or, if acceptance was
refused, an affidavit that upon notice of such refusal a copy of the summons,
complaint, and notice regarding Electronic Service was sent to the defendant
by ordinary mail. 

(g) Service by Alternate Means; Motion Required.

(1) When Service May Be Made. The court, on motion upon a
showing that service cannot with due diligence be made by another
prescribed method, shall order service (i) to be made by leaving a copy of the
order authorizing service by alternate means, the summons, complaint, and
notice regarding Electronic Service at the defendant’s dwelling house or usual
place of abode; or (ii) by publication unless a statute provides another method
of notice; or (iii) to be made electronically or by any other means not
prohibited by law.
Any such motion shall be supported by (i) a draft, proposed order
to provide the requested service by alternate means, and (ii) an affidavit
showing that:
(A) The moving party has demonstrated due diligence in
attempting to obtain personal service of process in a manner otherwise
prescribed by Rule 4 or by applicable statute;
(B) The identity and/or physical location of the person to be
served cannot reasonably be ascertained, or is ascertainable but it appears the
person is evading process; and
(C) The requested method and manner of service is reasonably
calculated to provide actual notice of the pendency of the action to the party
to be served and is the most practical manner of effecting notice of the suit.
(2) Contents of Order. An order for service by alternate means
shall include (i) a brief statement of the object of the action; (ii) if the action
may affect any property or credits of the defendant described in subdivision
(f) of this rule, a description of any such property or credits; (iii) the substance
of the summons prescribed by subdivision (a) of this rule; and (iv) a finding
by the court that the party seeking service by alternate means has met the
requirements in subdivision (g)(l)(A)-(C) of this rule. If the order is one
allowing service by publication pursuant to subsection (g)(1)(ii), it shall also
direct its publication once a week for 3 successive weeks in a designated
newspaper of general circulation in the county or municipality and state most
reasonably calculated to provide actual notice of the pendency of the action to
the party to be served; and the order shall also direct the mailing to the
defendant, if the defendant’s address is known, of a copy of the order as
published. If the order is one allowing service by electronic or other alternate
means pursuant to subsection (g)(1)(iii), it may include directives about
adequate safeguards to be employed to assure that service can be
authenticated and will be received intact, with all relevant documents and
information.
(3) Time of Publication or Delivery; When Service Complete. When
service is made by publication pursuant to subsection (g)(1)(ii), the first
publication of the summons shall be made within 20 days after the order is
granted. Service by alternate means hereunder is complete on the twenty-
first day after the first service or as provided in the court’s order. The plaintiff
shall file with the court an affidavit demonstrating that publication or
compliance with the court’s order has occurred. 

(h) Return of Service.

The person serving the process shall make proof
of service thereof on the original process or a paper attached thereto for that
purpose, and shall forthwith return it to the plaintiff’s attorney. The plaintiff’s
attorney shall, within the time during which the person served must respond
to the process, file the proof of service with the court. If service is made under
paragraph (c)(1) of this rule, return shall be made by the plaintiff’s attorney
filing with the court the acknowledgment received pursuant to that
paragraph. The attorney’s filing of such proof of service with the court shall
constitute a representation by the attorney, subject to the obligations of Rule
11, that the copy of the complaint mailed to the person served or delivered to
the officer for service was a true copy. If service is made by a person other
than a sheriff or the sheriff’s deputy or another person authorized by law, that
person shall make proof thereof by affidavit. The officer or other person
serving the process shall endorse the date of service upon the copy left with
the defendant or other person. Failure to endorse the date of service shall not
affect the validity of service. 

(i) Amendment.

At any time in its discretion and upon such terms as it
deems just, the court 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. 

(j) Alternative Provisions for Service in a Foreign Country.

(1) Manner. When service is to be effected upon a party in a
foreign country, it is also sufficient if service of the summons, complaint, and
notice regarding Electronic Service is made: (A) in the manner prescribed by
the law of the foreign country for service in that country in an action in any of
its courts of general jurisdiction; or (B) as directed by the foreign authority in
response to a letter rogatory, when service in either case is reasonably
calculated to give actual notice; or (C) upon an individual, by delivery to the
individual personally, and upon a corporation or partnership or association,
by delivery to an officer, a managing or general agent; or (D) by any form of
mail requiring a signed receipt, to be addressed and dispatched by the clerk of
the court to the party to be served; or (E) as directed by order of the court.
Service under (C) or (E) above may be made by any person who is not a party
and is not less than 18 years of age or who is designated by order of the court
or by the foreign court. On request, the clerk shall deliver the summons to the
plaintiff for transmission to the person or the foreign court or officer who will
make the service.
(2) Return. Proof of service may be made as prescribed by
subdivision (h) of this rule, or by the law of the foreign country, or by order of
the court. When service is made pursuant to subparagraph (1)(D) of this
subdivision, proof of service shall include a receipt signed by the addressee or
other evidence of delivery to the addressee satisfactory to the court.
Advisory Note – July 2018
The amendment to Rule 4(d)(1) corrects an oversight in a package of
amendments promulgated effective July 1, 2018. See 2018 Me. Rules 08. The
amended language requires that a notice regarding Electronic Service be
served upon an individual other than a minor or an incompetent person along
with a copy of the summons and complaint.
Advisory Note – July 2018
The amendments to Rule 4, together with amendments to Rules 3, 5(b),
11, and 101 of the Maine Rules of Civil Procedure, is part of a package of
simultaneous amendments to require parties to civil actions who are
represented by attorneys to serve pleadings and other papers electronically
upon one another or by delivering copies pursuant to Rule 5(b)(1) following
service of the summons and complaint under Rule 4. Parties who are not
represented by an attorney may opt in to Electronic Service.
A more detailed description of Electronic Service and the procedures for
complying with its requirements is stated in the Advisory Note to Rule 5.
Advisory Note – November 2011
Service of process amendments adopted as part of the Model Registered
Agents Act have removed any obligation of the Secretary of State to act as
default agent for service of process. See 5 M.R.S. § 113. This amendment to
Rule 4(d)(8) recognizes that change. It also adds a reference to Rule 4(g) as
the default service choice to seek approval for an alternative means of service
if service cannot be accomplished pursuant to subdivision (d)(8).
Advisory Committee Note
July 1, 2010
Rule 4 has been amended to reflect the concerns expressed by the Law
Court in Gaeth v. Deacon 2009 ME 9, 964 A.2d 621, that service by alternative
means, including publication, afford due process to the person to be served in
accordance with the Maine and United States Constitutions. In the course of
that opinion the Court also addressed the limits of service by print publication
in the electronic age.
The Constitution does not require any particular means of service of
process, only that the method selected be reasonably calculated to provide
actual notice and an opportunity to respond. Lewien v. Cohen, 432 A.2d 800,
804-05 (Me. 1981) (citing, inter alia, Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306 (1950)). Service of process serves the dual purposes of giving
adequate notice of the pendency of an action, and providing the court with
personal jurisdiction over the party properly served. Gaeth, 2009 ME 9, ¶ 20,
964 A.2d at 626 (citing Brown v. Thaler, 2005 ME 75, ¶ 10, 880 A.2d 1113,
1116). The allowable means for serving process are governed primarily by
court rule. 14 M.R.S. § 701. Presently, service by publication may be ordered
when the defendant is an individual residing either within, Rule 4(d)(1), or
outside, Rule 4(e) & (f)(1), the state, or when a person is a party to a Family
Division action brought pursuant to Chapter XIII of these Rules, Rule 4(f)(2).
These amendments group together all forms of service that require a
court order and, upon motion supported by affidavit that the party has been
unable to effect service by any other means, that no other means of effecting
service are practicable and that service by the method requested is reasonably
calculated to provide actual notice of the suit, allow for service to be made:
(1) by leaving a copy of the summons and complaint at the defendant’s
dwelling house or usual place of abode [presently codified at Rule 4(d)(1)]; or
(2) by publication; or
(3) by other alternative means, including electronic means. The
amendment makes clear that a court has the authority, in proper
circumstances, to consider a request seeking to use an individual’s usual place
of “virtual abode,” which might include Internet web sites with means of
contact, email access, social networking sites, or any other alternative avenues
where it is reasonably certain to provide a person with actual notice of the
suit.
The motion for service by alternate means must be supported by a draft
order making the necessary findings and specifying the proposed method of
alternative service.
Before a party can obtain an order allowing service by any alternate
means, that party must first demonstrate that he or she has exhausted all
reasonable attempts to make service in one of the other ways prescribed by
Rule 4 (or by applicable statute) that are designed to provide actual notice of
the action to the party to be served. Whether attempts at locating a party are
reasonable will of necessity depend on the situation; likewise, whether a
search is limited to one jurisdiction or many may depend on the nature of the
parties and claims. Within the framework of any given set of facts, a party
seeking an order approving service by publication or other alternate means
may seek to show which of the following actions s/he has taken in attempting
to serve the party: checked publicly available databases (including computer
databases) such as tax records, voting rolls, criminal history records, credit
records, telephone directories, divorce or death records, utility records, post
office records, and motor vehicle registry records in the jurisdiction where the
defendant is most likely to be found. In addition to demonstrating that he has
made a reasonable search of available public data, a party seeking an order for
publication or service by alternate means should also satisfy the court that he
or she has made reasonable efforts to locate the current address of the party
to be served by checking private sources: known relatives, former employers,
former educational institutions, and former neighbors. Once the party
seeking the order for publication or service by alternate means has shown,
through affidavit, that he or she has demonstrated due diligence and
exhausted all reasonable efforts to provide actual notice of the action to the
party to be served, the court must still fashion an order which is reasonably
calculated to provide actual notice of the pending proceeding.
The amended rule, consistent with Gaeth, recognizes that service by
publication in a newspaper should be a last resort, used only after the party
has exhausted other means more likely to achieve notice in this day and age.
When considering an order for service by publication a court may potentially
exclude the county where the suit is pending and/or where the plaintiff
resides and instead focus upon the county or municipality (which may not
even be within the State of Maine) where newspaper publication is most likely
to provide actual notice to the defendant or to his family. Even if service by
publication is permitted, the court may still require that notice be attempted
or that notice of the publication be provided to the party to be served through
other alternative means, including regular mail, certified mail or electronic
mail sent both to the party to be served and even conceivably to relatives,
employers, or educational institutions recently attended by the party.
Advisory Note
July 1, 2009
The amendment to Rule 4(f) changes only the heading of paragraph 2 to
recognize the Rule’s applicability to Family Division Actions under Chapter
XIII.
Advisory Notes
June 2008
Rule 4(f)(2) is amended [effective January 1, 2009] to recognize that
Rule 80 is abrogated and to cite to Chapter XIII of these Rules that now
governs most Family Division and domestic relations actions. The
amendment also recognizes that post-judgment motions may be served by
this service by certified mail alternative.
Advisory Committee’s Notes
December 4, 2001
Rule 4(f) is amended to permit service by registered or certified mail in
action arising under Rule 80(a) regardless of whether the person to be served
is in or outside the state. The former rule permitted such service only upon
persons outside the state and only in actions for divorce or annulment. The
intent of the amendment is to afford litigants, many of whom are pro se, an
easy and inexpensive means of serving initial process.
Advisory Committee’s Notes
May 1, 2000
In subdivision (1) and subdivision (2), the term “minor” is substituted
for the term “infant.”
Advisory Committee’s Notes
1993
Rule 4(d)(10) is amended for conformity to recent statutory changes.
When Rule 4(d)(10) was adopted in 1967, Maine was among those
states which did not recognize the “entity” theory of partnership. Thus, an
action against a partnership on a partnership liability could be brought only
against the individual partners. Rule 4(d)(10) was intended to simplify
service of process in such an action by eliminating the necessity of personal
service upon every partner named as a defendant in favor of service upon one
partner or a general or managing agent of the partnership. See M.R. Civ. P.
4(d)(10) advisory committee’s note, 1 Field, McKusick & Wroth, Maine Civil
Practice 53-55 (2d ed. 1970); Thurston v. Continental Casualty Co., 567 A.2d
922, 923-24 (Me. 1989).
Subsequently, the Legislature has provided specifically that both
general and limited partnerships may sue and be sued in the partnership
name. 31 M.R.S.A. §§ 160-A, 290-A, enacted by P.L. 1987, ch. 92. Accordingly,
the present amendment expressly extends the service provisions of Rule
4(d)(10) to “a partnership subject to suit in the partnership name.” Service
upon such a partnership may be had “in any action,” whether or not the claim
can be said to have arisen “out of partnership business.”
The rule continues to provide a means for service upon partners
individually in a claim that does arise out of partnership business. This
provision thus permits service against members of a partnership established
in a state which does not recognize the entity theory. Service under the rule
will also support jurisdiction against all partners as to their personal liability
under the general law of partnership for claims that cannot be satisfied out of
the partnership property. Note that the present rule is one of service of
process only. While partners are not indispensable parties in an action on a
partnership liability, they and the partnership are bound by a judgment only if
formally named and joined as parties to the action. See 1 Field, McKusick &
Wroth, supra § 4.4. The service provisions of the rule apply whether the
partnership and partners are joined or are sued in separate actions.
In clause (a) of the rule, the amendment limits service to “general”
partners. Limited partners, who under the Revised Uniform Limited
Partnership Act, 31 M.R.S.A. §§ 401-527, are not individually liable for the
obligations of the partnership and do not participate in control of the
partnership business, do not have sufficient stake or responsibility to assure
that service upon them will be adequate notice to general partners. See
31 M.R.S.A. § 433; cf. id. § 409(1).
Clause (b) of the rule incorporates as an alternative means of service
upon a limited partnership the provisions of the Revised Uniform Limited
Partnership Act for service upon a statutory agent. Thus, under 31 M.R.S.A. §-
409(l)(B), (C), service may be had upon the registered agent or any liquidating
trustee of the partnership. If no registered agent has been appointed, or can
be found, then the Secretary of State, by virtue of 31 M.R.S.A. § 409(2), is
deemed the agent of the partnership for service of process. Similarly, under
31 M.R.S.A. § 410, the Secretary of State is deemed to be the agent for service
of process upon a nonresident general partner. Similar provisions are made
for service on foreign limited partnerships by 31 M.R.S.A. §§ 500-502.
The service provisions of the Revised Uniform Limited Partnership Act
contain savings for other methods of service. See 31 M.R.S.A. § 409(3)
(domestic limited partnership); § 500(4) (foreign limited partnership
authorized to do business in the state); § 501(2) (foreign limited partnership
not authorized to do business in the state). While there is no similar saving in
31 M.R.S.A. § 410 for service upon nonresident general partners of domestic
limited partnerships, the methods therein prescribed are not in terms
exclusive of service under Rule 4(d)(10)(a).
Advisory Committee’s Notes
1992
Rule 4(c)(1) is amended to clarify the intent of the rule. As promulgated
in 1990, Rule 4(c)(1) provided that, if no acknowledgement of service by mail
is received by plaintiff within 20 days, service may be made by an officer or
specially appointed person under Rule 4(c)(2). The amendment, substituting
“shall” for “may,” follows Federal Rule 4(c)(2)(C)(ii), upon which the Maine
rule was based. The intention is to make clear that the original service by mail
is invalid if no acknowledgment is received, and that service under paragraph
(2) or (3) must be employed if jurisdiction of the defendant is to be obtained.
Rule 4(c)(3) is added to clarify the relationship between service by
ordinary mail with acknowledgement under Rule 4(c)(1) and other methods.
Service under Rule 4(c)(1) is an option that may be used initially against any
defendant in lieu of the special service methods permitted or required by
Rules 4(d)-(g), (j), and applicable statutes. Plaintiff may, however, choose at
the outset to bypass Rule 4(c)(1) and make service initially by a method
specifically provided by rule or statute for the type of defendant in question,
which may be personal service or another method such as registered or
certified mail. If service is attempted under Rule 4(c)(1) but fails for lack of
acknowledgement, plaintiff must resort to either personal service or another
method as appropriate in order to obtain jurisdiction.
Advisory Committee’s Notes
1991
Rule 4(c), providing that service of process is to be made by a sheriff, a
deputy, another person authorized by law, or a person especially appointed
by the court, is replaced by new Rule 4(c). Under the new provisions, service
of the summons and complaint may be made by mail with written
acknowledgement of receipt. Simultaneous amendments to Rules 4A(c) and
4B(c) make clear that writs of attachment and summonses on trustee process
must be served by a sheriff or deputy.
The change is intended to make service both more efficient and more
economical. In many counties, delays occur because of the backlog of civil
process in sheriffs’ offices. In addition, the costs of service, which may be
significant in cases involving multiple parties, can be reduced by making
service by mail freely available to Maine litigants. Such service is now
available in the federal and many state courts, and in Maine, under Rule 4(f),
may be used against out-of-state defendants. Since the party serving the
summons and complaint bears the burden of establishing that service has
been made and the risk of loss if service is ineffective, it may be assumed that
parties will continue to resort to service by officer in difficult cases.
Rule 4(c)(1) provides that in the first instance service of summons and
complaint may be made by the party or any person acting for the party by
ordinary first-class mail. The sender must include with the summons and
complaint two copies of a form of notice designed to alert the recipient to the
procedure and an acknowledgement of receipt of service to be returned by the
recipient in a postage-paid envelope provided for that purpose. If the sender
does not receive the acknowledgement within twenty days of the mailing of
the summons and complaint, the sender has the option of making service in
hand under paragraph (2) of the subdivision. A form of notice and
acknowledgement is being added to the Appendix of Forms as Form 3.20 by
simultaneous amendment. Note that the acknowledgement must be received
within 20 days of the mailing date, while the time for answer under Rule 12(a)
is still 20 days from the date of service. In this case, the date on which the
defendant mails the acknowledgement, which constitutes acceptance of this
form of service, is the date of service for purposes of the time for answer.
Rule 4(c)(2) carries forward the language of former Rule 4(c)
permitting service by a sheriff, a deputy, or “other person authorized by law,”
which includes constables and police and other governmental officers
specifically authorized by statute. See e.g. 12 M.R.S.A. § 6025 (marine patrol
officers); 34-A M.R.S.A. § 3231(H) (warden of the state prison). The clause in
the present rule referring to the subpoena is deleted because Rule 4(c) will
now apply only to service of summons and complaint. The provisions of the
present rule for special appointment for service remain in effect.
Rule 4(h) is amended to conform to the provisions of new Rule 4(c) by
providing for return of service when service is made by mail.
Advisory Committee’s Notes
1990
Rule 4(d)(14) is added to make clear that service of process may
properly be made under the Maine Rules of Civil Procedure upon one of the
other 49 states of the United States in an appropriate case when that state
requires service to be made upon it in a manner not otherwise provided in
Rule 4(d). Service under this provision may be made outside Maine in
accordance with Rule 4(e). The provision of Rule 4(j) for service upon any
party in a foreign country by means appropriate under the law of that country
would reach a result similar to that under Rule 4(d)(14) if a foreign country
were a party.
Advisory Committee’s Notes
1987
Rule 4(c) is amended to eliminate constables from the enumeration of
those generally empowered to serve civil process. By statute, a constable’s
power to serve process is limited to his own town or “an adjoining plantation.”
14 M.R.S.A. § 703. The rule as originally promulgated carried the implication
that a constable could serve process anywhere within the state. Under the
amended rule, a constable may still serve process in a proper case as an “other
person authorized by law.”
Advisory Committee’s Notes
1985
Rule 4(d)(8)(a) is amended to eliminate the requirement that, when
service is made upon a domestic private corporation by delivery to the
Secretary of State, the copy of the process sent to the corporation by
registered or certified mail be sent return receipt requested, with instructions
to deliver to addressee only. Since postal regulations require that an
individual be named for delivery to addressee only, and there may be no
current officer or director of a corporation that still has assets, the
requirement may frustrate service. In this situation, the mailing is simply a
backup to service upon the Secretary of State as statutory agent of the
corporation and is not required by the statute. Therefore, elimination of the
addressee-only requirement will cause no real diminution in the notice
afforded. See 13-A M.R.S.A. § 305(2).
Advisory Committee’s Notes
1981
Rule 4(e) is amended to make the rule more reflective of the present
state of the law. As originally promulgated, the rule envisioned only two
situations in which personal service might be had outside the state: service
upon a domiciliary and service under the long-arm statute, 14 M.R.S.A. §704-
A. Accordingly, the original rule limited such service expressly to cases
involving domiciliaries and cases within the scope of the long-arm statute’s
language of submission to the jurisdiction. Plainly, there are other situations
where out-of-state service is constitutionally valid, as well as appropriate-e.g.,
jurisdiction by consent, or jurisdiction under jurisdictional provisions other
than the long-arm statute, such as those in the Maine Business Corporations
Act, 13-A M.R.S.A. § 306, or the Probate Code, 18-A M.R.S.A. §§ 4-301, 3-602, 5-
208.
Rule 4(f) is amended to conform the rule to the effect of the decision in
Shaffer v. Heitner, 433 U.S. 186 (1977). Related amendments are being made
in Rules 4A(f) and 4B(h).
In Shaffer, the Court overruled a line of cases founded on Pennoyer v.
Neff, 95 U.S. 714 (1878), and exemplified by Harris v. Balk, 198 U.S. 215
(1905), which had held that, by the attachment of the tangible or intangible
property of a nonresident defendant within the state, the courts of a state
acquired jurisdiction to render a judgment subjecting that property to a claim
against the defendant, regardless of the connection of the claim with the
property or the state. Rule 4(f) as originally promulgated provided a means of
service in three such situations. See 1 Field, McKusick, and Wroth, Maine Civil
Practice 4.11, 4A.6 (2d ed. 1970). Shaffer holds that this form of “quasi in
rem” jurisdiction violates due process, and that a state can exercise
jurisdiction over the property of a nonresident defendant only if he has
sufficient contacts with the state to sustain jurisdiction of his person in the
action.
Rule 4(f) in its original form was in effect a grant of jurisdiction over the
property or status of the defendant in the three situations therein provided
for, without regard to the contacts of the defendant. The effect of the present
amendment is to limit service by mail to situations where jurisdiction is
otherwise proper—that is, borrowing the language of Rule 4(e) as
simultaneously amended, where defendant is “subject to the jurisdiction of
the courts of the state.” Thus the mere presence of property or a pending
adjudication of marital status, within the state will no longer of itself be a
basis for such service. In such cases, however, where the defendant has
sufficient contacts with Maine related to the transaction in suit, so that service
under the long-arm statute and Rule 4(e) would be proper, service may be had
outside the state by mail in the two situations provided in amended Rule 4(f):
(1) Where title or other interest in real or personal property is involved; (2)
where the action is for divorce or annulment. Ordinarily, in these situations,
there will be contacts. See Shaffer v. Heitner, supra, at 207-08.
Advisory Committee’s Note
September 1, 1980
This rule is amended to provide a simple and efficient means of
effectuating service on the United States or an agency thereof in a Maine court.
The amendment is taken with only minor changes from Federal Rule 4(d)(4)
and (5). Since federal statutes and regulations may contain provision for
specific forms of service in particular classes of cases, language has been
added similar to that in Rules 4(d)(8)-(10), (13), requiring that any form of
notice specified in such a provision also be given.
Advisory Committee’s Note
December 1, 1975
This amendment is made to conform to a change in the Postal
Regulations effective February 13, 1975, which makes obsolete the present
language of Rule 4(f) requiring “return receipt requested, with instructions to
deliver to addressee only.” The new regulation provides for “Restricted
Delivery.” Mail so marked may be delivered either to the addressee or to a
person he specifically authorizes in writing to receive his Restricted Delivery
mail. Authorization may be given by use of Form 3801, Standing Delivery
Order, or by a letter to the postmaster. The sender may request on P.S. Form
3811 a Restricted Delivery return receipt for delivery to addressee only
showing either (1) to whom and date delivered, or (2) to whom, date, and
where delivered. Either form would satisfy this amendment.
Advisory Committee’s Note
December 1, 1975
This amendment is designed to accomplish with respect to express
trusts what Rule 4(d)(10) has done with respect to partnerships. Under
Maine law a trust is not an “entity” which may sue and be sued as such. The
trustees must sue and be sued and a judgment can be rendered only against
them. This amendment does not change the requirement of joinder but
eliminates the necessity of individual service upon each trustee. The purpose
is to provide in actions on claims against a trust a means of serving process
upon trustees that is less difficult and expensive than individual service, while
fully satisfying the constitutional requirements of due process.
In these days the use of business trusts is increasing, notably in the field
of real estate development, and it is as appropriate to simplify service here as
in the case of partnerships. There is, moreover, no reason to differentiate
between the trust created to undertake business activity and any other form
of express trust, including testamentary trusts. Requiring the trust to be
“express” prevents applicability of the amendment to implied or constructive
trusts created by operation of law. The amendment will enable a plaintiff to
use the simplified service on claims arising out of relations between the trust
and third persons, such as tort or contract claims. The exclusion of actions by
beneficiaries suing as such is to prevent the amendment from being used
when the internal affairs of the trust are involved and the individual liability
of a trustee may come in issue. Nor does the amendment provide for service
on claims against trustees for breach of trust, for objectives such as
restoration to the trust estate of assets wrongfully diverted from it.
Advisory Committee’s Note
April 15, 1975
Paragraphs (11) and (12) are added to Rule 4(d) in order to specify the
methods for making service upon the State of Maine and any officer or agency
of the State. Service upon the State is made by service upon the Attorney
General. This is parallel to Federal Civil Rule 4(d)(4). See also Rule 4(d)(2) of
the Vermont Rules of Civil Procedure. Like the Federal Rule the new Maine
Rule requires that in any action attacking the validity of an order of an officer
or agency of the State of Maine not made a party, a copy of the summons and
of the complaint just be mailed to that officer or agency. The new Maine rule,
however, does go further than the Federal Rule in simplifying the form of
service by permitting registered or certified mail upon the Attorney General
(rather than personal service), and by permitting service by ordinary mail
upon a state officer or agency which is not a party.
For service upon a State officer or agency Rule 4(d)(12) incorporates
the existing procedure for service under either paragraph (1) or (7) with the
added requirement that a copy of the summons and complaint also be sent by
ordinary mail to the Attorney General. The evident purpose of both
paragraphs (11) and (12) is to assure early notice to the Attorney General,
who is charged with the defense of many such actions.
Advisory Committee’s Note
November 1, 1969
A certificate of election of a corporation’s clerk previously was filed in
the registry of deeds in the county or district where the corporation was
located or where it had a place of business or a general agent, but by 1965
Laws, c. 61, § 1 such certificates of election are now filed in the office of the
Secretary of State. Accordingly, the “last resort” method of service upon a
domestic private corporation by delivery to the registry of deeds has become
inappropriate. Furthermore, it is doubtful whether the existing provision of
Rule 4(d) (8) satisfies the requirements of due process. It can be said of
delivery to a filing office even more truly than of publication that “it would be
idle to pretend that [it] alone . . . is a reliable means of acquainting interested
parties of the fact that their rights are before the courts.” Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S.Ct. 652, 658, 94 L.Ed. 865
(1950).
To meet these defects in the existing rule the “last resort” method of
service is changed to be delivery to the Secretary of State accompanied by
mailing of a copy of the summons and of the complaint to the corporation at
its principal office as reported on its latest annual return. This provision is
comparable to that of Section 3–5(b) of the proposed Maine Business
Corporation Act (West Pub. Co. 1969). That proposed Act directs the
Secretary of State to cause the mailing immediately. Since it is thought that
the rules cannot direct the Secretary of State to take action, responsibility for
the mailing under the rule is left to the attorney for the plaintiff.
Advisory Committee’s Note
December 31, 1967
Many substantial business enterprises are conducted today by
partnerships. Many doing business in Maine, as, for example, accounting and
insurance and stock brokerage firms, have a large number of partners, many
or even most of whom reside outside the state. The new Rule 4(d) (10) is
intended to afford, in actions arising out of partnership business, a means for
serving process upon partners that is less difficult and expensive than the
present ones, and that, at the same time, complies fully with the constitutional
requirements of due process.
In Maine, where the common law of partnerships still prevails, suits by
and against partnerships cannot be in a common name, but rather must be in
the names of partners. Until Maine adopts the “entity theory” by rule or
statute, the “persons composing [the partnership] must sue and be sued; and
a judgment can only be rendered against them.” Macomber v. Wright, 35 Me.
156, 157 (1852).
The new Rule 4(d) (10) does not change the Macomber v. Wright rule. It
does not eliminate the necessity to name as defendants all partners whom the
plaintiff wishes to hold on a partnership liability. However, it does eliminate
the necessity of making personal service upon each and every one of the
partners who are named as defendants. For the procedural purpose of service
of process, the partners are treated by the amendment much the same as if
they had elected the corporate form of doing business rather than the
partnership. Compare subdivisions (d) (8) and (d) (9). Service upon one
partner (or upon a general or managing agent of the partnership) will be
effective as service upon all partners sued on a partnership liability.
Under the existing procedure, service may be made upon a partner only
by service upon him personally by the method provided in Rule 4(d) (1),
subject to other methods being available in limited circumstances. Even if all
members of the partnership are Maine residents such requirements for
service are onerous in the case of any partnership of more than two or three
partners. When many of the partners reside outside the state, even though
personal service upon such non-resident partners is expressly authorized by
Maine’s “long-arm” statute (the 1959 Jurisdiction Act) as to most causes of
action arising in Maine (14 M.R.S.A. § 704), the complications involved in
getting personal service upon many different partners, often residing in many
different states, can for practical purposes deny justice to meritorious claims
against the partnership.
On causes of action arising out of the doing within Maine by one partner
or an agent of the partnership of any of the acts listed in the 1959 Jurisdiction
Act, such as the transaction of any business or the commission of a tortious
act, all partners are by that Act declared to have submitted themselves to the
jurisdiction of the courts of this state. The particular mode for serving process
provided by the Act is expressly stated not to limit or affect “the right to serve
any process in any other manner now or hereafter provided by law.”
14 M.R.S.A. § 704(4). The Committee is confident that the method for making
service provided in the new subdivision (d) (10) satisfies due process. Cf.
Henry L. Doherty & Co. v. Goodman, 294 U.S. 623, 55 S.Ct. 553, 79 L.Ed. 1097
(1935). The Federal Rules and the rules of states following the entity theory of
partnerships permit process to be served as prescribed in the new
subdivision. See F.R. 4(d) (3); N.J.Rule 4.4-4(e); Minn.Rule 4.03(b);
McKinney’s N.Y. CPLR § 310. There is no factual or substantive law difference
that would make such service adequate in giving the partners due notice of
the action under the entity theory, but would render such service inadequate
in Maine with its common law concept of the partnership. Indeed Maine
already permits service upon partners by less than personal service upon all,
in two limited situations: (1) Rule 4B (c), preserving the substance of a prerules statute, makes service of trustee process on one partner an effective
attachment as to any of the defendant’s property in the hands of the firm; and
(2) Rule 4(j) (1), added in 1966 after careful study by both those concerned
with federal rulemaking and those here in Maine, permits service upon a
partnership in a foreign country by delivery to a managing or general agent.
In this day of mammoth partnerships, it may be difficult for the
plaintiff’s attorney to determine the names of all the parties. With the new
subdivision (d) (10), it would appear permissible for him then to caption his
suit by the style “John Smith v. James Jones, Henry Richards and all other
persons who are partners of James Jones and Henry Richards in the
partnership known as `Jones & Company’.” The plaintiff could, through
discovery against Jones and Richards determine the names of all other
partners and could amend his complaint prior to trial so as to include those
defendants specifically. The original service upon either Jones or Richards or
a general or managing agent of the partnership would have been effective to
give them the constitutionally required notice of the action and of its
application to them.
Reporter’s Notes
December 1, 1959
This rule is a combination of Federal Rule 4, existing Maine statutes, and
new provisions designed to simplify and improve methods of serving process.
Rule 4(a) prescribes the form of the summons and is substantially the
same as Federal Rule 4(b). See Form 1 in the Appendix of Forms. The
reference to the facsimile signature of the clerk is inserted to make it clear
that R.S.1954, Chap. 106, Sec. 9 [now 4 M.R.S.A. § 108], is not superseded by
the rule. Alternate Form 1 in the Appendix of Forms is provided so that the
clerk in one county may issue a summons for the commencement of an action
in another county. Alternate Forms 2 and 2A are provided for the same
reason.
Rule 4(b) places upon the plaintiff’s attorney the obligation to fill out
the summons, which he procures in blank from the clerk, and to make the
necessary copies of both summons and complaint. It is also provided that in
all cases the plaintiff’s attorney shall deliver the papers to the officer for
service. This departs from the Federal Rules, which require the clerk to
prepare the summons and deliver it to the officer for service. It does not seem
desirable to put this additional burden upon the clerk’s office.
Rule 4(c) provides for service by presently authorized officers or by a
person specially appointed by the court, the latter being taken from Federal
Rule 4(c).
The general statutes relating to method of service of process, R.S.1954,
Chap. 112, Sec. 17ff, have been repealed and service of process will in general
be governed by Rule 4(d) to (i), inclusive.
Rule 4(d) (1) changes the requirements for personal service upon an
individual by eliminating the possibility that the process may be left at the last
and usual place of abode without delivery of it to any person. The present
practice of sliding the process under the door of an empty house is subject to
possible abuse. The last sentence provides, however, that the court may order
service to be made by leaving the process at the defendant’s dwelling house
or usual place of abode upon a showing that the prescribed service cannot be
made with due diligence. This is designed to cover the situation where the
officer might have to make repeated attempts to serve a defendant who was
trying to evade service. It is intended as an alternative for rare cases and
contemplates a substantial showing by the plaintiff. Because of the possibility
that leaving the process at an empty house might in the particular
circumstances be less effective than publication, the court may order service
by the latter method (which would normally be accompanied by mailing the
published notice to the defendant’s address).
Service by reading the writ or original summons to the defendant, as
provided in R.S.1954, Chap. 112, Sec. 18, is not preserved in the rule.
The reference to service on an agent “authorized by appointment or by
law to receive service”, taken from Federal Rule 4(d) (1), covers the situation
where a defendant individual has made an actual appointment, whether
voluntary or under compulsion of a statute such as R.S.1954, Chap. 84, Sec. 10
[now 32 M.R.S.A. § 4002] (non-resident real estate brokers and salesmen). It
also covers situations where no appointment has been made in fact, but where
the doing of an act within the state is given the effect of appointing a public
official as agent for service. R.S.1954, Chap. 22, Sec. 70, as amended [now
29 M.R.S.A. § 1911] (non-resident operators of motor vehicles and aircraft), is
such a statute. When service is on a statutory agent, such further notice as the
statute requires shall be given.
Rule 4(d) (2) to (9), inclusive, incorporates to a large extent the
repealed statutes for service of process, but with some simplifications and
modifications. As in the case of individuals, corporations may be served
through an agent authorized by appointment or statute to receive such service
on behalf of the corporation. This has the effect of retaining the numerous
provisions scattered through the Revised Statutes which either require the
designation of an agent for service of process as a condition of engaging in
business activity in the state or provide that service upon a named public
official shall be sufficient. Any further notice required by the statute shall also
be given. These requirements for service and notice vary from statute to
statute without apparent reason, but it has seemed preferable to retain them
as they are rather than to substitute a single uniform method of service.
Rule 4(e) also provides that service may be made outside the state upon
a person who has submitted to the jurisdiction of the courts of the state. The
word “person” includes a corporation. R.S.1954, Chap. 10, Sec. 22 (XIV) [now
1 M.R.S.A. § 72]. Taken in connection with 1959 Laws, c. 317, § 125, which
becomes R.S.1954, Chap. 112, Sec. 21, as amended [now 14 M.R.S.A. § 704] this
provision significantly extends the jurisdiction of the courts of Maine.
The purpose is to make a non-resident who comes into Maine and
commits a tort or fails to perform a contract answerable for that wrong in the
Maine courts even though he departs from the state before he can be served
with process. It is an extension of the principle of the familiar non-resident
motor vehicle statute (R.S.1954, Chap. 22, Sec. 70 [now 29 M.R.S.A. § 1911]).
Under the 1959 amendment, a defendant can be personally served outside the
state and a personal judgment rendered against him, on which he can of
course be sued in his home state. At present jurisdiction cannot be obtained
over such a non-resident without personal service in the state; but if his
property can be attached, judgment good only against that property can be
had. Martin v. Bryant, 108 Me. 253, 80 A. 702 (1911).
This statute is borrowed with slight change from Illinois Revised
Statutes, Chap. 110, Par. 17, the constitutionality of which has been upheld in
that state, Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673 (1957), and it is
believed that the United States Supreme Court would also uphold it.
International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154 (1945) ; McGee
v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199 (1957) ; and see Smyth v.
Twin State Improvement Corp., 116 Vt. 569, 80 A.2d 664 (1951) (upholding a
Vermont statute making the commission of a single tort a basis of jurisdiction
over a foreign corporation). Moreover, it seems eminently fair to provide that
a person who comes to Maine and commits a wrongful act shall by so doing
submit himself to the jurisdiction of the Maine courts, rather than to require
the Maine resident whom he has wronged to pursue him to his home state.
Maine being the place of the wrong, it is presumably the most convenient
place to assemble the witnesses for trial.
Rule 4(f) deals with service by mail outside the state. It is limited to
cases (1) where the plaintiff has made an attachment or served a trustee writ
within the state, (2) where the object of the action is to affect the defendant’s
title to real or personal property within the state, or (3) in divorce or
annulment actions. In these cases the out-of-state service is not the basis for a
personal judgment, but it satisfies due process requirements of notice so that
a judgment affecting the defendant’s property or status is effective. Plurede v.
Levasseur, 89 Me. 172, 36 A. 110 (1896) (notice of enforcement of lien). If the
address of a person to be served is unknown or if the rights of unknown
claimants are involved, publication under Rule 4(g) can be used. In such a case
publication satisfies due process.
Rule 4(g) deals with service by publication, which is permitted only
upon a showing that service cannot be made by another prescribed method.
These rules recognize, as Mr. Justice Jackson did in Mullane v. Central Hanover
Bank and Trust Co., 339 U.S. 306, 315, 70 S.Ct. 652, 658 (1950), that “it would
be idle to pretend that publication alone . . . is a reliable means of acquainting
interested parties of the fact that their rights are before the courts.” The
typical situation for service by publication will be when the whereabouts of
the person to be served cannot be ascertained with due diligence.
Rule 4(h) provides that the proof of service shall be made on the
original process and that the person making the service shall return it to the
plaintiff’s attorney, who has the duty to file it with the court within the time
during which the defendant must answer the complaint. Since it is the
attorney’s responsibility to make sure that the service and proof thereof were
proper, it seems wise to have the process returned to him instead of having
the officer return it to the court. It is not necessary that the original complaint
be delivered to the officer who serves the copy. See the third sentence of Rule
4(h).
Rule 4(i) is not covered by any existing statute, but is consistent with
the general common law rule, and apparently with Maine practice. Cf. Glidden
v. Philbrick, 56 Me. 222 (1868); Fairfield v. Paine, 23 Me. 498 (1844).