ALABAMA RULES OF CIVIL PROCEDURE

Introduction

In the state of Alabama, no license is required. However, an Alabama process server must be one of the following: a sheriff, clerk, or an individual eighteen years of age or older who is not associated with the defendants party. An Alabama process server must also be designated by order of the court to perform service of process.

If service of process is declined in anyway (meaning the pleadings, subpoena, or other legal document is refused by the named defendant), the clerk can mail a copy of the pleadings via United States Postal Service or other postal carrier to the defendant at the defendants verified home address. Service is then deemed complete.

Rule 4. Process: General and Miscellaneous Provisions

Summons or Other Process

Issuance

2. Form

3. Copy of Complaint or Other Document

Plaintiff and Defendant Defined
Instructions and Form

Limits of Effective Service

Upon Whom Process Served

Individual
Minor
Incompetent Not Confined
Incompetent Confined
Incarcerated Person
Corporation
Partnership
Unincorporated Organization or Association
Professional Association, Professional Corporation, or Limited Liability Company
State
County
Municipal Corporation
Other Governmental Entity

Amendment

Service Refused

Multiple Defendants; Incomplete Service; Dismissal of Fictitious Defendants

Effect of Availability of Alternative or Dual Modes of Service of Process

Acceptance or Waiver of Service

Rule 4.1 Process: Methods of In-State Service

Methods of Service

Delivery by a Process Server

1. By Sheriff or Constable

2. By Designated Person

3. How Served and Returned

4. Failure of Service

Service by Certified Mail

1. When Proper

2. How Served

3. When Effective

4. Failure of Delivery

Rule 4.2 Process: Basis For and Methods of Out-Of-State Service

Basis for Out-of-State Service

1. When Proper

2. Sufficient Contacts

3. "Person" Defined

Methods of Out-of-State Service

1. Certified Mail

2. Delivery by a Process Server

Rule 4.3 Process: Service By Publication

Scope of Rule

Residence Known; When Publication Appropriate

Avoidance of Service

Procedure for Publication in Actions Governed by This Rule

1. Affidavit Necessary

2. How Published

3. Contents of Publication

4. When Complete

5. Proof of Service

Alternative to Publication in Certain Domestic Proceedings

1. When Proper

2. How Served

3. When Effective

Rule 4.4 Process: Basis For and Methods of Service in a Foreign Country

Basis for Service in a Foreign Country

Methods of Service in a Foreign Country

1. Certified Mail or Its Equivalent

2. Delivery by a Process Server

3. Letters Rogatory

4. Pursuant to Law of Foreign Country

5. By Order of Court

Rule 4.5 Subpoena

Form; issuance

Service

Protection of persons subject to subpoenas

Duties in responding to subpoena

Contempt

SUMMONS OR OTHER PROCESS ISSUANCE

Upon the filing of the complaint or other document required to be served in the manner of an original complaint the clerk shall forthwith issue the required summons or other process for service upon each defendant. Upon request of the plaintiff separate or additional summons shall issue at any time against any defendant.

FORM

The summons, or other process or each of them in cases involving multiple defendants, shall be signed by the clerk, contain the name of the court and the name of the first party on each side with an appropriate indication of other parties in cases involving multiple parties, be directed to the defendant or each defendant in cases involving multiple defendants, state the name and address of the plaintiff's attorney, if any, otherwise the plaintiff's address, and the time within which these rules require the defendant to appear and defend, and shall notify the defendant that, in case of the defendant's failure to do so, judgment by default will be rendered against the defendant for the relief demanded in the complaint.

COPY OF COMPLAINT OR OTHER DOCUMENT

A copy of the complaint or other document to be served shall be attached to each summons or other process. The plaintiff shall furnish the clerk with sufficient copies of the complaint or other document to be served.

PLAINTIFF AND DEFENDANT DEFINED

For the purpose of issuance and service of summons or other process, "plaintiff" shall include any party seeking the issuance of service of summons, and "defendant" shall include any party upon whom service of summons or other process is sought.

INSTRUCTIONS AND FORM

The plaintiff shall furnish the clerk with instructions for service of the complaint or other document and, when requested by the clerk, the plaintiff shall also furnish sufficient properly completed copies of the summons or other process. When the plaintiff has requested service by certified mail, the plaintiff, at the request of the clerk, shall also furnish properly completed postal forms necessary for such service.

LIMITS OF EFFECTIVE SERVICE

All process may be served anywhere in this state and, when authorized by law or by these rules, may be served outside this state.

UPON WHOM PROCESS SERVED

Service of process, except service by publication as provided in Rule 4.3, shall be made as follows:

INDIVIDUAL

Upon an individual, other than a minor or an incompetent person, by serving the individual or by leaving a copy of the summons and the complaint 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 and the complaint to an agent authorized by appointment or by law to receive service of process;

MINOR

Upon a minor by serving any one of the following: the father, the mother, the guardian, the individual having care of the minor or with whom the minor lives, or the spouse, if the minor is married, and, if the minor is over the age of twelve years, by also serving the minor personally;

INCOMPETENT NOT CONFINED

Upon an incompetent person by serving the incompetent and that person's guardian but, if no guardian has been appointed, by serving the incompetent and a person with whom the incompetent lives or a person who cares for the incompetent;

INCOMPETENT CONFINED

Upon an incompetent person not having a guardian and confined in any institution for the mentally ill or mentally deficient, by serving the superintendent of the institution or similar official or person having the responsibility for custody of the incompetent person;

INCARCERATED PERSON

Upon an individual incarcerated in any penal institution or detention facility within this state, by serving the individual, except that when the individual to be served is a minor, by serving any one of the following: the father, the mother, the guardian, the individual having care of the minor, or the spouse, if the minor is married, and, if the minor is over the age of twelve (12) years by serving the minor personally;

CORPORATION

Upon a corporation, either domestic or foreign, by serving the agent authorized by appointment or by law to receive service of process or by serving the corporation by certified mail at any of its usual places of business or by serving an officer or an agent of the corporation

PARTNERSHIP

Upon a partnership, a limited partnership, or a limited partnership association, by serving the entity by certified mail at any of its usual places of business or by serving a partner, limited partner, or manager or member;

UNINCORPORATED ORGANIZATION OR ASSOCIATION

Upon an unincorporated organization or association by serving it in its entity name by certified mail at any of its usual places of business or by serving an officer or agent of any such organization or association or an officer or agent of any branch or local office of the organization or association;

PROFESSIONAL ASSOCIATION, PROFESSIONAL CORPORATION, OR LIMITED LIABILITY COMPANY

Upon a professional association, a professional corporation, or a limited liability company, by serving the association, corporation, or company in the entity's name by certified mail at the place where the entity's offices are maintained or by serving a shareholder, or by serving the agent authorized by appointment or by law to receive service of process;

STATE

Upon this state or any one of its departments, offices, and institutions, by serving the officer responsible for the administration of the department, office, or institution, and by serving the attorney general of this state;

COUNTY

Upon a county or upon any of its offices, agencies, districts, departments, institutions, or administrative units, by serving the chairman or presiding officer or member of the governing body of such county.

MUNICIPAL CORPORATION

Upon a municipal corporation or upon any of its offices, departments, agencies, authorities, institutions, or administrative units, by serving the mayor or the presiding officer or councilman, commissioner, or other member of the municipal corporation.

OTHER GOVERNMENTAL ENTITY

Upon any governmental entity not mentioned above, by serving the person, officer, group, or body responsible for the administration of that entity or by serving the appropriate legal officer, if any, representing the entity. Service upon any person who is a member of the "group" or "body" having responsibility for the administration of the entity shall be sufficient.

AMENDMENT

The court, within its discretion and upon such terms as are just, may at any time allow or approve the amendment of any process or proof of service thereof, unless the amendment would cause material prejudice to the substantial rights of the party against whom the process was issued.

SERVICE REFUSED

If service of process is refused, and the certified mail receipt or the return of the person serving process states that service of process has been refused, the clerk shall send by ordinary mail a copy of the summons or other process and complaint or other document to be served to the defendant at the address set forth in the complaint or other document to be served. Service shall be deemed complete when the fact of mailing is entered of record.

MULTIPLE DEFENDANTS; INCOMPLETE SERVICE; DISMISSAL OF FICTITIOUS DEFENDANTS

When there are multiple defendants and the summons (or other document to be served) and the complaint have been served on one or more, but not all, of the defendants, the plaintiff may proceed to judgment as to the defendant or defendants on whom process has been served and, if the judgment as to the defendant or defendants who have been served is final in all other respects, it shall be a final judgment. After the entry of judgment, if the plaintiff is able to obtain service on a defendant or defendants not previously served (except, however, defendants designated as fictitious parties as allowed by Rule 9(h), who shall be deemed to have been dismissed voluntarily when the case was announced ready for trial against other defendants sued by their true names), the court shall hear and determine the matter as to such defendant or defendants in the same manner as if such defendant or defendants had originally been brought into court, but such defendant or defendants shall be allowed the benefit of any payment or satisfaction which may have been made on the judgment previously entered in the action.

EFFECT OF AVAILABILITY OF ALTERNATIVE OR DUAL MODES OF SERVICE OF PROCESS

There shall be no objection to the service of process or notice to litigants, that two or more modes of service of notice are provided by law or under these rules; but service of notice perfected in any one manner or mode which is provided for by law or under these rules shall be deemed sufficient, notwithstanding other modes or manner of service and notice are provided by law or under these rules.

ACCEPTANCE OR WAIVER OF SERVICE

A defendant or the defendant's attorney may accept or waive service of process, provided that said acceptance or waiver is in writing and signed by the defendant and a credible witness. (dc) District Court Rule. Rule 4 applies in the district courts. (Amended 6/17/75; Amended 10/14/76, effective 1/16/77; Amended 1/4/82, eff. 3/1/82; Amended 1/21/86, eff. 9/1/87; Amended eff. 6/20/89; Amended eff. 8/1/92; Amended eff. 10/1/95. Committee Comments See Committee Comments following Rule 4.4.---- Rule 4.1 Process: Methods of In-State Service.

METHODS OF SERVICE

All service of process within this state shall be made as provided in this rule except when service by publication is available pursuant to Rule 4.3. Service within this state under this rule shall include delivery by a process server and service by certified mail; and each of the foregoing methods of service shall be deemed to confer in personam jurisdiction. Unless otherwise requested or permitted by these rules, service of process within this state shall be made by delivery by a process server.

DELIVERY BY A PROCESS SERVER,

BY SHERIFF OR CONSTABLE

When process issued from any court subject to the provisions of these rules is to be delivered personally, the clerk of the court shall deliver or mail the process and sufficient copies of the process and complaint, or other documents to be served, to the sheriff or constable of the county in which the party to be served resides or may be found.

BY DESIGNATED PERSON

As an alternative to delivery by the sheriff, process issuing from any court governed by these rules may be delivered by the clerk to any person not less than eighteen (18) years of age, who is not a party and who has been designated by order of the court to make service of process. HOW SERVED AND RETURNED. The person serving process shall locate the person to be served and shall deliver a copy of the process and accompanying documents to the person to be served. When the copy of the process has been delivered, the person serving process shall endorse that fact on the process and return it to the clerk, who shall make the appropriate entry on the docket sheet relating to the action. The return of the person serving process in the manner described herein shall be prima facie evidence that process has been served.

FAILURE OF SERVICE

When the person serving process is unable to serve a copy of the process within thirty (30) days, the person serving process shall endorse that fact and the reason therefore on the process and return the process and copies to the clerk who shall make the appropriate entry on the docket sheet of the action. In the event of failure of service, the clerk shall forthwith notify, by mail, the attorney of record or if there is no attorney of record, the party at whose instance process was issued. The clerk shall enter the fact of notification on the docket sheet of the action. Failure to make service within the thirty (30)-day period and failure to make proof of service do not affect the validity of service.

SERVICE BY CERTIFIED MAIL, WHEN PROPER

When the plaintiff files a written request with the clerk for service by certified mail, service of process shall be made by that method. HOW SERVED. In the event of service by certified mail, the clerk shall place a copy of the process and complaint or other document to be served in an envelope and shall address the envelope to the person to be served with instructions to forward. The clerk shall affix adequate postage, and place the sealed envelope in the United States mail as certified mail with instructions to forward, return receipt requested, with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. When the person to be served is an individual, the clerk shall also request restricted delivery, unless otherwise ordered by the court. The clerk shall forthwith enter the fact of mailing on the docket sheet of the action and make a similar entry when the return receipt is received.

WHEN EFFECTIVE

Service by certified mail shall be deemed complete and the time for answering shall run from the date of delivery to the named addressee or the addressee's agent as evidenced by signature on the return receipt.

FAILURE OF DELIVERY

If the receipt shows failure of delivery to the addressee or the addressee's agent, the clerk shall follow the notification procedure set forth in subsection (b)(4) of this rule. Failure to make service within the thirty-day period and failure to make proof of service do not affect the validity of service. (dc) District Court Rule. Rule 4.1 applies in the district courts. (Adopted 10/14/76, effective 1/16/77; Amended 8/1/92; Amended eff. 10/1/95.) Committee Comments See Committee Comments following Rule 4.4. -------- Rule 4.2 Process: Basis For and Methods of Out-Of-State Service

BASIS FOR OUT-OF-STATE SERVICE WHEN PROPER

Appropriate basis exists for service of process outside of this state upon a person in any action in this state when (A) the person is, at the time of the service of process, either a nonresident of this state or a resident of this state who is absent from the state, and (B) the person has sufficient contacts with this state, as set forth in subdivision (a)(2) of this rule, so that the prosecution of the action against the person in this state is not inconsistent with the constitution of this state or the Constitution of the United States, or, the person is sued in the capacity of executor, administrator, or other personal representative of an estate for the acts or omissions of a decedent or ward, and the person so sued does not otherwise have sufficient contacts with this state in that capacity, but the decedent or ward would have been deemed to have sufficient contacts with this state if the action could have been maintained against the decedent or ward.

SUFFICIENT CONTACTS

A person has sufficient contacts with the state when that person, acting directly or by agent, is or may be legally responsible as a consequence of that person's:

A. transacting any business in this state;

B. contracting to supply services or goods in this state;

C. causing tortious injury or damage by an act or omission in this state including but not limited to actions arising out of the ownership, operation or use of a motor vehicle, aircraft, boat or watercraft in this state;

D. causing tortious injury or damage in this state by an act or omission outside this state if the person regularly does or solicits business, or engages in any other persistent course of conduct or derives substantial revenue from goods used or consumed or services rendered in this state;

E. causing injury or damage in this state to any person by breach of warranty expressly or impliedly made in the sale of goods outside this state when the person might reasonably have expected such other person to use, consume, or be affected by the goods in this state, provided that the person also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;

F. having an interest in, using, or possessing real property in this state;

G. contracting to insure any person, property, or risk located within this state at the time of contracting;

H. living in the marital relationship within this state notwithstanding subsequent departure from this state, as to all obligations arising from alimony, custody, child support, or property settlement, if the other party to the marital relationship continues to reside in this state; or

I. otherwise having some minimum contacts with this state and, under the circumstances, it is fair and reasonable to require the person to come to this state to defend an action. The minimum contacts referred to in this subdivision (I) shall be deemed sufficient, notwithstanding a failure to satisfy the requirement of subdivisions (A)-(H) of this subsection (2), so long as the prosecution of the action against a person in this state is not inconsistent with the constitution of this state or the Constitution of the United States. "PERSON" DEFINED. This term "person" as used herein includes an individual, that person's executor, administrator, or other personal representative, or a corporation, partnership, association, or any other legal or commercial entity.

METHODS OF OUT-OF-STATE SERVICE

All service of process outside of this state shall be made as set forth below except when service by publication is available pursuant to Rule 4.3. Service outside of this state under this rule shall include service by certified mail and delivery by a process server; and each method shall be deemed to confer in personam jurisdiction. Unless otherwise requested or permitted by these rules, service of process outside this state shall be made by certified mail.

CERTIFIED MAIL.

1. How Served. The clerk shall place a copy of the process and complaint or other document to be served in an envelope and shall address the envelope to the person to be served at that person's last known address with instructions to forward. The clerk shall affix adequate postage and place the sealed envelope in the United States mail as certified mail return receipt requested with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. When the person to be served is an individual, the clerk shall also request restricted delivery, unless otherwise ordered by the court. The clerk shall forthwith enter the fact of mailing on the docket sheet of the action and make a similar entry when the return receipt is received.

2. When Effective. Service by certified mail shall be deemed complete and the time for answering shall run from the date of delivery of process as evidenced by the return receipt.

3. Failure of Delivery. If the return receipt shows failure of delivery, the clerk shall forthwith notify, by mail, the attorney of record, or if there is no attorney of record, the party at whose instance process was issued. In the event that the return receipt shows failure of delivery, service is complete when the serving party or the serving party's attorney, after notification by the clerk, files with the clerk an affidavit setting forth facts indicating the reasonable diligence utilized to ascertain the whereabouts of the party to be served, and service by publication is made under Rule 4.3(c).

DELIVERY BY A PROCESS SERVER

1. When Proper. When the plaintiff files a written request with the clerk for service by delivery by a process server, service of the process and accompanying documents may be delivered to a "person" as set forth in subparagraph (a) of this rule by a person designated by order of the court to make service of process.

2. How Served and Returned. Service herein may be made by any person not less than eighteen (18) years of age who is not a party and who has been designated by order of the court. On request, the clerk shall deliver the summons to the plaintiff or the plaintiff's attorney for transmission to the person who will make the service. Proof of service may be made as prescribed by Rule 4.1(b)(3) or by order of the court. ---------------------Rule 4.3 Process: Service By Publication

SCOPE OF RULE

This rule applies as follows:

1. To a claim historically equitable involving property under the control of the court (e.g., administration of an estate, interpleader, partition) or marital status which said claim has heretofore been deemed appropriate for service by publication where the identity or residence of a defendant is unknown or, where a resident defendant has been absent from that defendant's residence for more than thirty days since the filing of the complaint and the method of service by publication in such instances is not specifically provided by statute; and, 2. To a claim, whether legal or equitable, against a defendant who avoids service of process as described in subparagraph (c) of this rule. This rule does not supersede specific procedure for publication as set forth in certain statutes governing special proceedings (e.g., attachment, in rem action to quiet title) and, in such proceedings, the specific statutory procedure for publication and all other requirements appearing therein shall govern except to the extent that subparagraph (b) of this rule may be applicable. In no event shall an in personam judgment be entered on service by publication except as provided in subparagraph (c) of this rule.

RESIDENCE KNOWN; WHEN PUBLICATION APPROPRIATE

When the residence of a defendant is known and the action is one in which service by publication is permitted, service of process must first be attempted by one of the methods of service other than publication as is provided by Rule 4.1, if the defendant is a resident of this state, or Rule 4.2, if the defendant is not a resident of this state or is a resident of this state who is absent from the state, or Rule 4.4, if service on the defendant is to be effected in a foreign country.

AVOIDANCE OF SERVICE

When a resident defendant avoids service and that defendant's present location or residence is unknown and the process server has endorsed the fact of failure of service and the reason therefore on the process and returned same to the clerk or where the return receipt shows a failure of service, the court may, on motion, order service to be made by publication. When a defendant is a domestic corporation or a foreign corporation having one of its principal places of business in this state and the process server has endorsed the fact that the process cannot be served because of the failure of the defendant to elect officers or appoint agents, or because of the absence of officers or agents from the state for a period of thirty (30) days from the filing of the complaint or because the officers or agents are unknown, then such defendant shall be deemed to have avoided service and the court may, on motion, order service on such defendant to be made by publication.

PROCEDURE FOR PUBLICATION IN ACTIONS GOVERNED BY THIS RULE AFFIDAVIT NECESSARY

Before service by publication can be made in an action where the identity or residence of a defendant is unknown, or when a defendant has been absent from that defendant's residence for more than thirty days since the filing of the complaint or where the defendant avoids service, an affidavit of a party or the party's counsel must be filed with the court averring that service of summons or other process cannot be made because either the residence is unknown to the affiant and cannot with reasonable diligence be ascertained, or, the identity of the defendant is unknown, or, the resident defendant has been absent for more than thirty (30) days since the filing of the complaint, or, the defendant avoids service, averring facts showing such avoidance.

HOW PUBLISHED

Upon the filing of the affidavit the clerk shall direct that service of notice be made by publication in a newspaper of general circulation in the county in which the complaint is filed. If no newspaper of general circulation is published in the county, then publication shall be in a newspaper of general circulation published in an adjoining county.

CONTENTS OF PUBLICATION

The publication shall

1. contain a summary statement of the object of the complaint and demand for relief;

2. notify the person to be served that that person is required to answer within thirty (30) days after the last publication on or before a date certain specified in the notice which said date shall be thirty (30) days after the last publication; and

3. be published at least once a week for four successive weeks. In a divorce action, publication of a notice in substantial compliance with the following form shall be deemed sufficient:

NOTICE OF DIVORCE ACTION

John Doe, whose whereabouts is unknown, must answer Mary Doe's petition for divorce and other relief by July 1, 1975, or, thereafter, a judgment by default may be rendered against him in Case No. , Circuit Court of County. Done the 30th day of April, 1975B

RICHARD ROE, Clerk of the Circuit Court of County.

JOE DOAKS

123 Main Street

Anywhere, Alabama

Attorney for Mary Doe

WHEN COMPLETE

Service shall be complete at the date of the last publication.

PROOF OF SERVICE

After the last publication, the publisher or the publisher's agent shall file with the court an affidavit showing the fact of publication together with a copy of the notice of publication. The affidavit and copy of the notice shall constitute proof of service.

ALTERNATIVE TO PUBLICATION IN CERTAIN DOMESTIC PROCEEDINGS WHEN PROPER

When service of process by publication in domestic proceedings is otherwise proper under this rule and the affidavit made necessary by subparagraph (d)(1) of this rule has been filed, service of process may be made by first class mail in lieu of publication when the party requesting such service has also filed an affidavit setting forth

1. substantial hardship in the payment of the cost of publication and,

2. all of the known addresses of the defendant for the preceding two years or, if the defendant's whereabouts have been unknown for said period, the last known address of the defendant and, if known, the address of defendant's next-of-kin or some other person who may know the defendant's whereabouts.