MAINE RULES OF CIVIL PROCEDURE
Introduction
In the state of Maine, no process server license is
required. Process of service must be
completed by officer who will give the pleadings to the defendant, or an individual
of suitable age and discretion residing in the defendants domiciliary
establishment. No service of process is
permitted on Sundays.
Table of Contents
ONE FORM OF
ACTION
COMMENCEMENT
OF ACTION
PROCESS
ATTACHMENT
TRUSTEE
PROCESS
SERVICE
AND FILING OF PLEADINGS AND OTHER PAPERS
TIME
ONE FORM OF
ACTION
There shall be one form of action to
be known as "civil action."
COMMENCEMENT
OF ACTION
Except as otherwise provided in these
rules, a civil action is commenced (1) by the service of a summons and
complaint, or (2) by filing a complaint with the court. When method (1) is used, the complaint must
be filed with the court within 20 days after completion of service. When method
(2) is used, the return of service shall be filed with the court within 90 days
after the filing of the complaint. If
the complaint or the return of service is not timely filed, the action may be
dismissed on motion and notice, and in such case the court may, in its
discretion, if it shall be of the opinion that the action was vexatiously
commenced, tax a reasonable attorney fee as costs in favor of the defendant, to
be recovered of the plaintiff or the plaintiff's attorney.
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 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 and of the complaint for service upon the
defendant.
(c) Service. Service of the summons and complaint may be made as follows:
(1)
By mailing a copy of the summons and of the complaint (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 and complaint 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 and complaint 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 and of the complaint 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 and of the complaint 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 by leaving a copy of the summons and of the complaint at the
defendant's dwelling house or usual place of abode; or to be made by
publication pursuant to subdivision (g) of this rule, if the court deems
publication to be more effective.
(2)
Upon a minor, by delivering a copy of the summons and of the complaint
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 and of the
complaint 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 and of the complaint to one
of the county commissioners or their clerk or the county treasurer.
(5)
Upon a town, by delivering a copy of the summons and of the complaint to the
clerk or one of the selectmen or assessors.
(6)
Upon a city, by delivering a copy of the summons and of the complaint to the
clerk, treasurer, or manager.
(7)
Upon the United States, by delivering a copy of the summons and of the
complaint 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 and of the
complaint 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 and of the complaint 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 and of the complaint 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 and of the
complaint to any officer, director, or manager thereof and upon any public
body, agency or authority by delivering a copy of the summons and the complaint
to any member thereof.
(8)
Upon a domestic private corporation (a) by delivering a copy of the summons and
of the complaint 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, to the Secretary of State,
provided that the plaintiff's attorney shall also send a copy of the summons
and of the complaint 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 and of the complaint
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 and of the complaint 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
and of the complaint 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
and of the complaint 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
and of the complaint 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 and of the
complaint 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 and of the complaint 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 and of the complaint 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 and of
the complaint 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 and of the complaint 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 and complaint 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
and complaint 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)
Divorce Cases. Service of the summons
and complaint may be made in an action under Rule 80(a) 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 and complaint was sent to the defendant by ordinary mail.
(g)
Service by Publication.
(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 by publication in an action described in
subdivision (f) of this rule, unless a statute provides another method of
notice, or when the person to be served is one described in subdivision (e) of
this rule.
(2)
Contents of Order. An order for service
by publication 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; and (iii) the substance of the summons prescribed by subdivision
(a) of this rule. The order shall also direct its publication once a week for 3
successive weeks in a designated newspaper of general circulation in the county
where the action is pending; 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.
(3)
Time of Publication; When Service Complete.
The first publication of the summons shall be made within 20 days after
the order is granted. Service by publication is complete on the twenty-first
day after the first publication. The
plaintiff shall file with the court an affidavit that publication has been
made.
(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
and complaint 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.
ATTACHMENT
(a)
Availability of Attachment. In any
action under these rules, real estate, goods and chattels and other property
may, in the manner and to the extent provided by law, but subject to the
requirements of this rule, be attached and held to satisfy the judgment for
damages and costs which the plaintiff may recover. Attachment under this rule shall not be available before judgment
in any action against a consumer for a debt arising from a consumer credit
transaction as defined in the Maine Consumer Credit Code.
(b)
Writ of Attachment: Form. The writ of
attachment shall bear the signature or facsimile signature of the clerk, be
under the seal of the court, contain the name of the court, the names and
residences of the parties and the date of the complaint, be directed to the
sheriffs of the several counties or their deputies, and command them to attach
the goods or estate of the defendant to the value of a specified amount ordered
by the court, or to attach specific property of the defendant designated by the
court, and to make due return of the writ with their doings thereon. The writ
of attachment shall also state the name of the justice or judge who entered the
order approving attachment of property, if any, and the date thereof.
(c)
Same: Service. The writ of attachment
may be procured in blank from the clerk and shall be filled out by the
plaintiff's attorney as provided in subdivision (b) of this rule. The writ of attachment shall be served by a
sheriff or a deputy within the sheriff's county. The plaintiff's attorney shall deliver to the officer making the
attachment the original writ of attachment upon which to make return and a copy
thereof.
No
property may be attached unless such attachment for a specified amount is
approved by order of the court. Except
as provided in subdivision (g) of this rule, the order of approval may be
entered only after notice to the defendant and hearing and upon a finding by
the court that it is more likely than not that the plaintiff will recover
judgment, including interest and costs, in an amount equal to or greater than
the aggregate sum of the attachment and any liability insurance, bond, or other
security, and any property or credits attached by other writ of attachment or
by trustee process shown by the defendant to be available to satisfy the
judgment.
An
attachment of property shall be sought by filing with the complaint a motion
for approval of the attachment. The
motion shall be supported by affidavit or affidavits meeting the requirements
set forth in subdivision (i) of this rule. Except as provided in subdivision
(g) of this rule, the motion and affidavit or affidavits with the notice of
hearing thereon shall be served upon the defendant in the manner provided by
Rule 4 at the same time the summons and complaint are served upon that
defendant. In the case of an attachment approved ex parte as provided in subdivision
(g) of this rule, the defendant shall also be served with a copy of the writ of
attachment with the officer's endorsement thereon of the date or dates of
execution of the attachment or, if attachment has been perfected by filing
under 14 M.R.S.A. § 4154, with a copy of the order of approval with the
acknowledgment of the officer receiving the filing endorsed thereon.
A
defendant opposing a motion for approval of attachment shall file material in
opposition as required by Rule 7(c). If
the defendant is deemed to have waived all objection to the motion as provided
in Rule 7(c) for failure to file opposition material within the time therein
provided or as extended, the court shall, without hearing, upon a finding that
the plaintiff is entitled to an attachment under the terms of this subdivision
(c), enter an order of approval of attachment in an appropriate amount.
Any
attachment shall be made within 30 days after the order approving the writ of
attachment. When attachments are made
subsequent to service of the summons and complaint upon the defendant, a copy
of the writ of attachment with the officer's endorsement thereon of the date or
dates of the attachments shall be promptly served upon the defendant in the
manner provided by Rule 5. When an
attachment made subsequent to the service of the summons and complaint has been
perfected by filing under 14 M.R.S.A. §
4154, a copy of the order of approval, with the acknowledgment of the officer
receiving the filing endorsed thereon, shall be promptly served upon the
defendant in the same manner.
(d)
Approval of Limited Attachment or Substituted Security.
(1)
Attachment of Specific Property. In the order approving an attachment, the
court shall specify that the attachment is to issue solely against particular
property or credits upon a showing by the defendant (A) that the property or
credits specified are available for attachment and would, if sold to satisfy
any judgment obtained in the action, yield to the plaintiff an amount at least equal
to the amount for which attachment is approved in accordance with the criteria
of subdivision (c), and (B) that the absence of such a limitation will result
in hardship to the defendant.
(2)
Alternative Security for a Single Defendant.
At the hearing on a motion for approval of an attachment against the
property of a single defendant, the defendant may tender cash or bond at least
equal to the amount of any attachment to be approved in accordance with the
criteria of subdivision (c). If the
court finds that the defendant has tendered cash in sufficient amount, it shall
order that amount to be deposited with the court as provided in Rule 67 to be
held as security for any judgment that the plaintiff may recover. If the court finds that the defendant has
tendered a bond of sufficient amount and duration and with sufficient sureties,
the court shall order the bond to be filed with the court. A surety upon a bond filed under this rule
is subject to the terms and conditions of Rule 65(c). Upon such deposit or filing, the court shall further order that
any prior attachment against the defendant to satisfy a judgment on the claim
for which security has been tendered shall be dissolved. Thereafter, no further attachment shall
issue against the defendant except on motion of the plaintiff and a showing
that the cash deposited or bond filed has become inadequate or unavailable to
satisfy the judgment.
(3)
Single Security for Multiple Defendants.
At the hearing for approval of attachment against the property of two or
more defendants alleged to be jointly and severally liable to the plaintiff,
one or more of the defendants may tender cash or bond sufficient, in the
aggregate, to satisfy the total amount the plaintiff would be entitled to recover
upon execution against all such defendants.
Upon the findings required by paragraph (2) of this subdivision for a
single defendant, the court may order the cash to be deposited or the bond
filed with the court on the same conditions and with the same effect provided
in that paragraph.
(e)
Attachment on Counterclaim, Cross-Claim or Third-Party Complaint. An attachment may be made by a party
bringing a counterclaim, a cross-claim, or a third-party complaint in the same
manner as upon an original claim.
(f)
Subsequent or Additional Attachment. If
no writ of attachment has issued, or if the time period prescribed in
subdivision (c) of this rule for making attachments has expired, the court on
motion may issue an order of approval for attachment of real estate, goods and
chattels or other property. The provisions of subdivisions (c), (d), and (g) of
this rule apply to the motion and any attachment ordered thereunder, except
that notice if appropriate shall be served upon the defendant in the manner provided
in Rule 5.
(g)
Ex Parte Hearings on Attachments. An
order approving attachment of property for a specific amount may be entered ex
parte only in an action commenced by filing the complaint with the court
together with a motion for approval of the attachment as provided in
subdivision (c) of this rule. The
hearing on the motion shall be held forthwith.
Such order shall issue if the court finds that it is more likely than
not that the plaintiff will recover judgment in an amount equal to or greater
than the aggregate sum of the attachment and any insurance, bond, or other
security, and any property or credits attached by other writ of attachment or
by trustee process known or reasonably believed to be available to satisfy the
judgment, and that either (i) there is a clear danger that the defendant if
notified in advance of attachment of the property will remove it from the state
or will conceal it or will otherwise make it unavailable to satisfy a judgment,
or (ii) there is immediate danger that the defendant will damage or destroy the
property to be attached. The motion for
such ex parte order shall be accompanied by a certificate by the plaintiff's
attorney of the amount of any insurance, bond, or other security, and any other
attachment or trustee process which the attorney knows or has reason to believe
will be available to satisfy any judgment against the defendant in the action.
The motion, in the filing of which the plaintiff's attorney shall be subject to
the obligations of Rule 11, shall be supported by affidavit or affidavits
meeting the requirements set forth in subdivision (i) of this rule.
(h)
Dissolution or Modification of Attachments.
On 2 days' notice to the plaintiff or on such shorter notice as the
court may prescribe, any person having an interest in property that has been
attached pursuant to an ex parte order entered under subdivision (g) of this
rule may appear, without thereby submitting to the personal jurisdiction of the
court, and move the dissolution or modification of the attachment, and in that
event the court shall proceed to hear and determine such motion as
expeditiously as the ends of justice require.
At such hearing the plaintiff shall have the burden of justifying any finding
in the ex parte order that the moving party has challenged by affidavit.
Upon
motion and notice and a showing by any defendant that specific property or
sufficient cash or bond is available to satisfy a judgment as provided in
subdivision (d) of this rule, the court may modify an order of attachment,
whether issued ex parte or after hearing, to limit the attachment to particular
property or to order cash or bond to be held by the court as security for the
judgment, and to dissolve the prior attachment as to all other property of the
defendant. If a prior attachment has been perfected as to property specified in
the modified order, the modified order shall relate back to the original
attachment.
Nothing
herein shall be construed to abolish or limit any means for obtaining
dissolution, modification or discharge of an attachment that is otherwise
available by law.
(i)
Requirements for Affidavits. Affidavits
required by this rule shall set forth specific facts sufficient to warrant the
required findings and shall be upon the affiant's own knowledge, information or
belief; and, so far as upon information and belief, shall state that the
affiant believes this information to be true.
TRUSTEE
PROCESS
(a)
Availability of Trustee Process. In any personal action under these rules
except actions only for specific recovery of goods and chattels, for malicious
prosecution, for slander by writing or speaking, or for assault and battery,
trustee process may be used, in the manner and to the extent provided by law,
but subject to the requirements of this rule, for the purpose of securing
satisfaction of the judgment for damages and costs which the plaintiff may
recover, provided, however, that no person shall be adjudged trustee for any
amount due from that person to the defendant for earnings. The term
"earnings" means compensation paid or payable for personal services,
whether denominated as wages, salary, commissions, bonuses or otherwise, and
includes periodic payments pursuant to a pension or retirement program. Trustee process under this rule shall not be
available before judgment in any action against a consumer for a debt arising
from a consumer credit transaction as defined by Maine Consumer Credit Code.
(b)
Summons to Trustee: Form. The summons to a trustee shall bear the
signature or facsimile signature of the clerk, be under the seal of the court
and contain the name of the court and the names of the parties, be directed to
the trustee, state the name and address of the plaintiff's attorney, a
specified amount for which the goods or credits of the defendant are attached
on trustee process or specific goods or credits designated by the court for
attachment, and the time within which these rule require the trustee to make
disclosure, and shall notify the trustee that in case of failure to do so the
trustee will be defaulted and adjudged trustee as alleged. The trustee summons shall also state the
name of the justice or judge who entered the order approving attachment on
trustee process and the date thereof.
(c)
Same: Service. The trustee summons may be procured in blank
from the clerk and shall be filled out by the plaintiff's attorney as provided
in subdivision (b) of this rule. The trustee summons shall be served by a
sheriff or a deputy within the sheriff's county. The plaintiff's attorney shall deliver to the officer making
service the original trustee summons upon which to make return of service and a
copy thereof for service upon the trustee.
The trustee summons shall be served in like manner and with the same
effect as other process.
No
trustee summons may be served unless attachment on trustee process for a
specified amount has been approved by order of the court. Except as provided in
subdivision (i) of this rule, the order of approval may be entered only after notice
to the defendant and hearing and upon a finding by the court that it is more
likely than not that the plaintiff will recover judgment, including interest
and costs, in an aggregate sum equal to or greater than the amount of the
trustee process and any insurance, bond, or other security, and any property or
credits attached by writ of attachment or by other trustee process shown by the
defendant to be available to satisfy the judgment.
Trustee
process shall be sought by filing with the complaint a motion for approval of
attachment on trustee process. The motion shall be supported by affidavit or
affidavits meeting the requirements set forth in Rule 4A(i). Except as provided in subdivision (i) of
this rule, the motion and affidavit or affidavits with notice of hearing
thereon shall be served upon the defendant in the manner prescribed in Rule 4
at the same time the summons and complaint are served upon the defendant.
A
defendant opposing a motion for approval of attachment on trustee process shall
file material in opposition as required by Rule 7(c). If the defendant is deemed to have waived all objection to the
motion as provided in Rule 7(c) for failure to file opposition material within
the time therein provided or as extended, the court shall, without hearing,
upon a finding that the plaintiff is entitled to an attachment under the terms
of this subdivision (c), enter an order of approval of attachment in an
appropriate amount.
Any
trustee process shall be served within 30 days after the date of the order
approving the attachment. Promptly after the service of the trustee summons
upon the trustee or trustees, a copy of the trustee summons with the officer's
endorsement thereon of the date or dates of service shall be served upon the
defendant in the manner provided in either Rule 4 or Rule 5.
(d)
Approval of Limited Attachment on Trustee Process or Substituted Security.
(1)
Attachment of Specific Property. In the
order approving an attachment on trustee process, the court shall specify that
the attachment is to issue solely against particular goods or credits upon a
showing by the defendant (A) that the goods or credits specified are available
for attachment on trustee process and would, if applied to satisfy any judgment
obtained in the action, yield to the plaintiff an amount at least equal to the
amount for which attachment on trustee process is approved in accordance with
the criteria of subdivision (c), and (B) that the absence of such a limitation
will result in hardship to the defendant.
(2)
Alternative Security for a Single Defendant.
At the hearing on a motion for approval of an attachment on trustee
process against the goods or credits of a single defendant, the defendant may
tender cash or bond at least equal to the amount of any attachment to be
approved in accordance with the criteria of subdivision (c). If the court finds that the defendant has
tendered cash in sufficient amount, it shall order that amount to be deposited
with the court as provided in Rule 67 to be held as security for any judgment
that the plaintiff may recover. If the
court finds that the defendant has tendered a bond of sufficient amount and
duration and with sufficient sureties, the court shall order the bond to be
filed with the court. A surety upon a bond filed under this rule is subject to
the terms and conditions of Rule 65(c).
Upon such deposit or filing, the court shall further order that any
prior attachment on trustee process against the defendant to satisfy a judgment
on the claim for which security has been tendered shall be dissolved. Thereafter, no further attachment on trustee
process shall issue against the defendant except on motion of the plaintiff and
a showing that the cash deposited or bond filed has become inadequate or unavailable
to satisfy the judgment.
(3)
Single Security for Multiple Defendants.
At the hearing for approval of attachment on trustee process against the
goods or credits of two or more defendants alleged to be jointly and severally
liable to the plaintiff, one or more of the defendants may tender cash or bond
sufficient, in the aggregate, to satisfy the total amount the plaintiff would
be entitled to recover upon execution against all such defendants. Upon the
findings required by paragraph (2) of this subdivision for a single defendant,
the court may order the cash to be deposited or the bond filed with the court
on the same conditions and with the same effect provided in that paragraph.
(e)
Disclosure by Trustee; Subsequent Proceedings.
A trustee shall serve that trustee's disclosure under oath within 20
days after the service of the trustee summons upon that trustee, unless the
court otherwise directs. The proceedings after service of the trustee's
disclosure shall be as provided by law.
When a trustee reports for examination, notice thereof shall be served
upon the attorney for the plaintiff, and upon motion the court shall fix a time
for the disclosure to be made. Before
the disclosure is presented to the court for adjudication, there shall be
minuted upon the back thereof the name of the attorney for the plaintiff, the
name of the trustee with the date of the service of the summons upon that
trustee, and the docket number of the action.
(f)
Adjudication and Judgment. The proceedings for adjudication on the disclosure
of the trustee and for the rendition and execution of judgment and the
imposition of costs shall be as provided by law.
(g)
Trustee Process on Counterclaim, Cross-Claim or Third-Party Complaint. Trustee process may be used by a party
bringing a counterclaim, a cross-claim, or a third-party complaint in the same
manner as upon an original claim, provided that the trustee resides or, if a
corporation, maintains a usual place of business, in the county where the
action is pending. If the counterclaim is compulsory under Rule 13(a), the
party stating it may use trustee process, even though the trustee does not
reside or maintain a usual place of business in the county where the action is
pending.
(h)
Subsequent or Additional Trustee Process.
If no trustee process has issued, or if the time period prescribed in
subdivision (c) of this rule for serving trustee process has expired, the court
on motion may issue an order of approval for an additional attachment on
trustee process. The provisions of
subdivisions (c), (d), and (i) of this rule apply to the motion and any trustee
process ordered thereunder, except that notice if appropriate shall be served
upon the defendant in the manner provided in Rule 5.
(i)
Ex Parte Hearings on Trustee Process.
An order approving trustee process for a specified amount may be entered
ex parte only in an action commenced by filing the complaint with the court
together with a motion for approval of
attachment on trustee process as provided in subdivision (c) of this
rule. The hearing on the motion shall
be held forthwith. Such order shall
issue if t court finds that it is more likely than not that the plaintiff will
recover judgment in an amount equal to or greater than the aggregate sum of the
trustee process and any insurance, bond or other security, or property or
credits attached by writ of attachment or by other trustee process known or
reasonably believed to be available to satisfy the judgment and that either (i)
there is a clear danger that the defendant if notified in advance of the
attachment on trustee process will withdraw the goods and credits from the
hands and possession of the trustee and remove them from the state or conceal
them, or otherwise make them unavailable to satisfy a judgment, or (ii) there
is immediate danger that the defendant will dissipate the credits, or damage or
destroy the goods, to be attached on trustee process. A maximum of one hundred dollars of demand bank accounts of the
defendant held by any one trustee shall, however, be exempt from trustee
process approved by an ex parte order under this subdivision. The motion for an ex parte order under this
subdivision shall be accompanied by a certificate by the plaintiff's attorney
of the amount of any insurance, bond, or other security, and any other
attachment or trustee process which the attorney knows or has reason to believe
will be available to satisfy any judgment against the defendant in the
action. The motion, in the filing of
which the plaintiff's attorney shall be subject to the obligations of Rule 11,
shall be supported by affidavit or affidavits meeting the requirements set
forth in Rule 4A(i).
(j)
Dissolution or Modification of Trustee Process. On 2 days' notice to the plaintiff or on such shorter notice as
the court may prescribe, any person having an interest in goods or credits that
have been attached on trustee process pursuant to an ex parte order under
subdivision (h) of this rule may appear, without thereby submitting to the
personal jurisdiction of the court, and move the dissolution or modification of
the trustee process, and in that event the court shall proceed to hear and
determine such motion as expeditiously as the ends of justice require. At such hearing the plaintiff shall have the
burden of justifying any finding in the ex parte order that the moving party
has challenged by affidavit.
Upon
motion and notice and a showing by any defendant that specific property or
sufficient cash or bond is available to satisfy a judgment as provided in
subdivision (d) of this rule, the court may modify an order of attachment on
trustee process, whether issued ex parte or after hearing, to limit the
attachment to particular goods or credits or to order cash or bond to be held
by the court as security for the judgment, and to dissolve the prior attachment
as to all other goods or credits of the defendant. If a prior attachment on trustee process has been perfected as to
goods or credits specified in the modified order, the modified order shall
relate back to the original attachment.
Nothing
herein shall be construed to abolish or limit any means for obtaining
dissolution, modification or discharge of trustee process that is otherwise
available by law.
SERVICE
AND FILING OF PLEADINGS AND OTHER PAPERS
(a)
Service: When Required. Except as otherwise provided in these rules,
every order required by its terms to be served, every pleading subsequent to the
original complaint unless the court otherwise orders because of numerous
defendants, every paper relating to discovery required to be served upon a
party unless the court otherwise orders, every written motion other than one
which may be heard ex parte, and every written notice, appearance, notice of
change of attorneys, pretrial memorandum, demand, offer of judgment,
designation of record and statement of points on appeal, and similar paper
shall be served upon each of the parties, but no service need be made on
parties in default for failure to appear except that pleadings asserting new or
additional claims for relief against them shall be served upon them in the
manner provided for service of summons in Rule 4.
(b)
Same: How Made. Whenever under these rules service is
required or permitted to be made upon a party represented by an attorney, the
service shall be made upon the attorney unless service upon the party
personally is ordered by the court.
When an attorney has filed a limited appearance under Rule 11(b),
service upon the attorney is not required.
Service upon an attorney who has ceased to represent a party is a
sufficient compliance with this subdivision until written notice of change of
attorneys has been served upon the other parties. Service upon an attorney or upon a party shall be made by
delivering a copy to the attorney or to the party or by mailing it to the last
known address or, if no address is known, by leaving it with the clerk of the
court. Delivery of a copy within this rule
means: handing it to the attorney or to
the party; or leaving it at the office
of the attorney or of the party with the person in charge thereof; or, if there is no one in charge, leaving it
in a conspicuous place therein, or, if the office is closed or the person to be
served has no office, leaving it at the person's dwelling house or usual place
of abode with some person of suitable age and discretion then residing
therein. Service by mail is complete
upon mailing.
(c)
Same: Numerous Defendants. In any action in which there are unusually
large numbers of defendants, the court, upon motion or of its own initiative,
may order that service of the pleadings of the defendant and replies thereto
need not be made as between the defendants and that any cross-claim,
counterclaim, or matter constituting an avoidance or affirmative defense
contained therein shall be deemed to be denied or avoided by all other parties
and that the filing of any such pleading and service thereof upon the plaintiff
constitutes due notice of it to the parties.
A copy of every such order shall be served upon the parties in such
manner and form as the court directs.
(d)
Filing: No Proof of Service
Required. Subject to the provisions of
Rule 26(f), all papers after the complaint required to be served upon a party
shall be filed with the court either before service or within a reasonable time
thereafter. Such filing by a party
shall constitute a representation by the party, subject to the obligations of
Rule 11, that a copy of the paper has been or will be served upon each of the
other parties as required by subdivision (a) of this rule. No further proof of service is required
unless an adverse party raises a question of notice.
(e) Filing With the Court Defined. The filing of pleadings and other papers
with the court as required by these rules shall be made by filing them with the
clerk of the court except that a justice or judge may permit the papers to be
filed with that justice or judge, in which event the justice or judge shall
note thereon the filing date and forthwith transmit them to the office of the
clerk. After hours or other office
filings are subject to Rule 5(g).
(f) Filing of Papers Not in Compliance with
Rules, Orders or Statute. Filings that
are received but which are not signed, or are not accompanied at the time of
filing by a legally required element, including but not limited to, a filing
fee, appeal fee, registry recording fee and envelope or summary sheet, or, if
filed by an attorney, do not have the attorney's Maine Bar Registration Number,
shall be returned by the clerk as incomplete.
The clerk will not docket the attempted filing but will retain a copy of
the attempted filing and the notice of return for six months. The offeror may refile the documents when
all elements are complete. The filing
will be docketed when the complete filing is received.
(g) After Hours and Other Office Filings.
(1) Clerks of courts may not, unless authorized
by a judge or justice, accept filings for other courts, or accept pleadings or
other documents filed with or left for the clerk after normal business
hours. Unless the party or counsel has
filed the pleading or document directly with a judge or justice, or the clerk
has received explicit instructions from a judge or justice to accept an
after-hours filing as filed on the date it is made, the clerk shall date stamp
the filing, and docket it as filed, on the next regular business day.
(2) Judges or justices may, for good cause
shown, accept filings made after regular business hours, accept filings for
other courts, or may make arrangements with a clerk for the clerk to accept a
filing after regular business hours. In
such a matter, the judge, justice or clerk shall note the judge's authorization
on the pleading or document, along with the date and time of actual
receipt. The receiving official shall
promptly transmit the filing to the proper court, where the filing shall be
docketed as filed on the date originally received by the judge, justice, or
clerk. Judges or justices may discuss
the need for such filings with the offering party or counsel, and such
discussions are deemed not to be ex parte communications, or to require notice
to opposing parties or counsel.
(h) Pleading Summary Sheets.
