MONTANA RULES OF CIVIL PROCEDURE
In the state of Montana,
no process server license is required.
However, any process server who does more than ten services of process
in a single calendar year must obtain a registration certificate. In addition, the
certificate allows a process server to act as a levying officer. The registration requires a surety bond of
$10,000 per individual and $100,000 for each process serving firm. Process servers cannot levy on an amount
that is in excess of their original bond.
All applicants must also pass a written examination based on the
Handbook for Process Servers, which is currently published by the Montana
Department of Commerce.
Montana requires that all pleadings be personally served upon the
defendant.
Rule 4A. Definition of person.
Rule 4B. Jurisdiction of
persons.
Summons -- issuance.
Summons -- form.
Rule 4D. Service.
Personal service within the
state.
Rule 4E. Time limit for issuance
and service of process.
Rule 5(a). Service -- when
required.
Rule 5(b). Service -- how made.
Rule 5(c). Service -- numerous
defendants.
Rule 5(d). Filing; certificate
of service.
Rule 5(e). Filing with the court
defined.
Rule 5(f). Proof of service.
Rule 6(a). Computation.
Rule 6(b). Enlargement.
Rule 6(c). Unaffected by
expiration of term.
Rule 6(d). For motions --
affidavits.
Rule 6(e). Additional time after
service by mail.
Rule 45(a). Form--issuance.
Rule 45(b). Service.
As used in this rule, the word "person," whether or not a
citizen or resident of this state and whether or not organized under the laws
of this state, includes an individual whether operating in the individual's own
name or under a trade name; an individual's agent or personal representative; a
corporation; a limited liability company; a business trust; an estate; a trust;
a partnership; an unincorporated association; and any two or more persons
having a joint or common interest or any other legal or commercial entity.
(1) Subject to jurisdiction. All persons found within the state of
Montana are subject to the jurisdiction of the courts of this state. In
addition, any person is subject to the jurisdiction of the courts of this state
as to any claim for relief arising from the doing personally, through an
employee, or through an agent, of any of the following acts:
(a) the transaction of any business within this
state;
(b) the commission of any act which results in
accrual within this state of a tort action;
(c) the ownership, use or possession of any
property, or of any interest therein, situated within this state;
(d) contracting to insure any person, property or
risk located within this state at the time of contracting;
(e) entering into a contract for services to be
rendered or for materials to be furnished in this state by such person; or
(f) acting as director, manager, trustee, or
other officer of any corporation organized under the laws of, or having its
principal place of business within this state, or as personal representative of
any estate within this state.
(2) Acquisition of jurisdiction. Jurisdiction may
be acquired by our courts over any person through service of process as herein
provided; or by the voluntary appearance in an action by any person either
personally, or through an attorney, or through any other authorized officer,
agent or employee.
Rule 4C. Process.
Upon or after filing the complaint,
the plaintiff or, if the plaintiff is represented by an attorney, the
plaintiff's attorney shall present a summons to the clerk for issuance. If the
summons is in proper form, the clerk shall issue it and deliver it to the
plaintiff or to the plaintiff's attorney who shall thereafter deliver it for
service upon the defendant in the manner prescribed by these rules. Issuance
and service of the summons shall be accomplished within the times prescribed by
Rule 4E of these rules. Upon request, the clerk shall issue separate or
additional summons against any parties designated in the original action, or
against any additional parties who may be brought into the action, which
separate or additional summons shall also be served in the manner and within
the times prescribed by these rules. The party requesting issuance of the
summons shall bear the burden of having it properly issued and served and filed
with the clerk.
The summons shall be signed by 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, 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. In an
action brought to quiet title to real estate, there shall be added to the
foregoing, the following: "This action is brought for the purpose of
quieting title to land situated in ... County, Montana, and described as
follows: (Here insert descriptions of land.)." For exceptions to this form
of summons see 4D(4) "Other service," set forth hereinafter.
(1) By whom served. (a) Service of all process shall be made in
the county where the party to be served is found by a sheriff, deputy sheriff,
constable, or any other person over the age of 18 not a party to the action.
(b) (i) A summons and complaint may also be
served upon a defendant who is an individual other than a minor or an
incompetent person or upon a domestic or foreign corporation or partnership or
other unincorporated association by mailing a copy of the summons and complaint
(by first class mail, postage prepaid) to the person to be served, together
with two copies of a notice and acknowledgment conforming substantially to form
18-A and a return envelope, postage prepaid, addressed to the sender. If no
acknowledgment of service under this subdivision of this rule is received by
the sender within 20 days after the date of mailing the summons and complaint,
service of such summons and complaint shall be made by one of the persons
mentioned in Rule 4D(1)(a) in the manner prescribed by Rule 4D(2) and Rule
4D(3).
(ii) Unless good cause is shown for not doing so,
the court shall order the payment of costs of the personal service by the
person served if such person does not complete and return within 20 days after
mailing, the notice and acknowledgment of receipt of summons.
(iii) The notice and acknowledgment of receipt of
summons and complaint shall be signed and dated. Service of summons and
complaint will be deemed complete on the date of signature of the defendant as
shown on the acknowledgment.
The summons and complaint shall be served together. The plaintiff
shall furnish the person making service with such copies as are necessary.
Service shall be made as follows: (a) Upon an
individual other than an infant or an incompetent person, by delivering a copy
of the summons and of the complaint to the individual personally 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.
(b) Upon a minor over the age of 14 years, by
delivering a copy of the summons and complaint to the minor personally, and by
leaving a copy thereof at the minor's dwelling house or usual place of abode
with some adult of suitable discretion then residing therein, or by delivering
a copy of the summons and complaint to an agent authorized by appointment or by
law to receive service of process. (c) Upon a minor under the age of 14 years,
by delivering a copy of the summons and complaint to the minor's guardian, if
the minor has one within the state, and if not, then to the minor's father or
mother or other person or agency 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. (d) Upon a person who has
been adjudged of unsound mind by a court of this state, or for whom a guardian
has been appointed in this state by reason of incompetency, by delivering a
copy of the summons and complaint to the person's guardian, if there be a
guardian residing in this state appointed and acting under the laws of this state.
If there be no such guardian, the court shall appoint a guardian ad litem for
the incompetent person, with or without personal service on the incompetent, as
the court may direct. When a party is alleged to be of unsound mind, but has
not been so adjudged by a court of this state, such party may be brought into
court by service of process personally upon that party. The court may also stay
any action pending against a person on learning that such person is of unsound
mind. (e) Upon a domestic corporation, limited liability company, partnership
or other unincorporated association, or upon a foreign corporation, limited
liability company, partnership or other unincorporated association, established
by the laws of any other state or country, and having a place of business
within this state or doing business herein either permanently or temporarily,
or which was doing business herein either permanently, or temporarily at the
time the claim for relief accrued: (i) by delivering a copy of the summons and
complaint to an officer, director, manager, member of a member-managed limited
liability company, superintendent or managing or general agent, or partner, or
associate for such corporation, limited liability company, partnership, or
association; or by leaving such copies at the office or place of business of
the corporation, limited liability company, partnership, or association within
the state with the person in charge of such office; or (ii) by delivering a
copy of the summons and complaint to the registered agent of said corporation
or limited liability company named on the records of the secretary of state, or
to any other agent or attorney in fact authorized by appointment or by statute
to receive or accept service on behalf of the corporation, limited liability
company, partnership, or association, provided that if the agent or attorney in
fact is one designated by statute to receive service, such further notice as
the statute requires shall also be given; or (iii) if the sheriff shall make
return that no person upon whom service may be made can be found in the county,
then service may be made by leaving a copy of the summons and complaint at any
office of the corporation, limited liability company, partnership, or
unincorporated association within this state with the person in charge of such
office; or (iv) if the suit is against a corporation or limited liability
company whose charter or right to do business in the state has expired or been
forfeited, by delivering a copy thereof to any one of the persons who have
become trustees for the corporation or limited liability company and its
stockholders or members.
(f) When a claim for relief is pending in any
court of this state against a corporation or limited liability company
organized under the laws of this state, or against a corporation or limited
liability company organized under the laws of any other state or country, that
has filed a copy of its charter in the office of the secretary of state of
Montana and qualified to do business in Montana; or against a corporation or
limited liability company organized under the laws of any other state or
country which is subject to the jurisdiction of the courts of this state under
the provisions of Rule 4B above, even though such corporation or limited liability
company has never qualified to do business in Montana; or against a national
banking corporation which, through insolvency or lapse of charter, has ceased
to do business in Montana; and none of the persons designated in D(2)(e)
immediately above can with the exercise of reasonable diligence be found within
Montana, the party causing summons to be issued shall exercise reasonable
diligence to ascertain the last known address of any such person. If, after
exercising reasonable diligence, the party causing summons to be issued is
unsuccessful in serving said parties, an affidavit must be filed with the clerk
of court in which the claim for relief is pending reciting that none of the
persons designated in D(2)(e) can after due diligence be found within Montana
upon whom service of process can be made, and reciting the last known address
of any such person, or reciting that after the exercise of reasonable diligence
no such address for any such person could be found. The sum of $10 will be
deposited with said clerk to be paid to the secretary of state as a fee for
each of said defendants for whom the secretary of state is to receive said
service; and where service is requested at more than one address, an additional
$10 shall be paid for each party to be served at each additional address. The
clerk of court shall issue an order directing process to be served upon the
secretary of state of the state of Montana or, in the secretary of state's
absence from the secretary of state's office, upon the deputy secretary of
state of the state of Montana. Such affidavit shall be sufficient evidence of
the diligence of inquiry made by affiant, if the affidavit recites that
diligent inquiry was made, and the affidavit need not detail the facts
constituting such inquiry. Whenever service is also to be made through
publication as provided in 4D(5), or upon other persons as provided in 4D(6),
the affidavit herein required may be combined in the same instrument with the
affidavit required under 4D(5)(c) and 4D(6). The said clerk of court shall then
mail to the secretary of state the original summons, one copy of the summons
and one copy of the affidavit for the files of the secretary of state, one copy
of the summons attached to a copy of the complaint for each of the defendants to
be served by service upon the secretary of state, and the fee for service, to
the office of the secretary of state. The secretary of state shall mail copy of
the summons and complaint by certified or registered mail with a return receipt
requested to the last known address of any of the persons designated in D(2)(e)
above, if known, or, if none such is known and it is a corporation not
organized in Montana, to the secretary of state of the state in which such
corporation or limited liability company was originally incorporated, if known;
and the secretary of state shall make a return as hereinafter provided under
Rule 4D(6). When service is so made, it shall be deemed personal service on
such corporation or limited liability company, and the said secretary of state,
or a deputy when the secretary is absent from the secretary of state's office,
is hereby appointed agent of such corporation or limited liability company for
service of process in cases hereinbefore mentioned. In any action where due
diligence has been exercised to locate and serve any of the persons designated
in D(2)(e) above, service shall be deemed complete upon said corporation or
limited liability company regardless of the receipt of any return receipt or
advice of refusal of the addressee to receive the process mailed, as is
hereinafter required by 4D(6); provided, however, that except in those actions
where any of the persons designated in D(2)(e) above have been located and
served personally as hereinabove provided, then service by publication shall
also be made as provided hereafter in 4D(5)(d) and 4D(5)(h); the first
publication must be made within 60 days from the date the original summons is
mailed to the secretary of state as herein provided, and if said first
publication is not so made, the action shall be deemed dismissed as to any such
party intended to be served by such publication; and service shall be complete
upon the date of the last publication of
summons. When service of process is made as herein
provided, and there is no appearance thereafter made by any attorney for such
corporation or limited liability company, service of all other notices required
by law to be served in such action may be served upon the secretary of
state. (g) Upon a city, village, town,
school district, county, or public agency or board of any such public bodies,
by delivering a copy of the summons and complaint to any commissioner, trustee,
board member, mayor or head of the legislative department thereof. (h) Upon the state, or any state board or state
agency, by delivering a copy of the summons and complaint to the attorney
general and to any other party which may be prescribed by
statute. (i) Upon an estate by delivering a copy of the summons and
complaint to the personal representative thereof; upon a trust by delivering a
copy of the summons and complaint to any trustee thereof. (3)
Personal service outside the state. Where service upon any person cannot, with
due diligence, be made personally within this state, service of summons and
complaint may be made by service outside this state in the manner provided for
service within this state, with the same force and effect as though service had
been made within this state. Where service by publication is permitted as
hereinafter provided, personal service of a summons and complaint upon the
defendant out of the state shall be equivalent to and shall dispense with the
procedures and the publication and mailing provided for hereafter in 4(5)(c),
4(5)(d) and 4(5)(e) of this rule. (4) Other service. All process in any
form of action shall be served in the manner specified in this rule with the
exception that whenever a statute of this state or an order of the court or a
citation by the court made pursuant thereto provides for the service of a
notice or of an order or of a citation in lieu of summons upon any person,
service shall be made under the circumstances and in the manner prescribed by
the statute or order or citation; and with the further exception that all
persons are required to comply with the provisions hereafter prescribed in
D(5)(h), and with the provisions of 33-1-603, 33-1-613, 33-1-614, 33-2-314,
33-2-315, 70-28-207, 70-28-208, 70-28-209, and 70-28-212, Montana Code
Annotated, when the action pertains to the provisions of such sections.
Service by publication -- when permitted -- effect --
manner -- proof.
(a) When permitted. A defendant, whether known or
unknown, who has not been served under the foregoing subsections of this rule can
be served by publication in the following situations only:
(i) When the subject of the action is real or
personal property in this state and the defendant has or claims a lien or
interest, actual or contingent, therein, or the relief demanded consists wholly
or partially in excluding the defendant from any interest therein. This
subsection shall apply whether any such defendant is known or unknown.
(ii) When the action is to foreclose, redeem from
or satisfy a mortgage, claim or lien upon real or personal property within this
state.
(iii) When the action is for dissolution or for a
declaration of invalidity of a marriage of a resident of this state or for
modification of a decree of dissolution granted by a court of this state.
(iv) When the defendant has property within this
state which has been attached or has a debtor within this state, who has been
garnished. Jurisdiction under this subsection may be independent of or
supplementary to jurisdiction acquired under subsections (5)(a)(i), (5)(a)(ii),
and (5)(a)(iii) herein.
(b) Effect of service by publication. When
a defendant, whether known or unknown, has been served by publication as
provided in this rule, any court of this state having jurisdiction may render a
decree which will adjudicate any interest of such defendant in the status,
property, or thing acted upon, but it may not bind the defendant personally to
the personal jurisdiction of the court unless some ground for the exercise of
personal jurisdiction exists.
(c) Filing of pleading and affidavit for service
by publication; and order for publication. Before service of the summons by
publication is authorized in any case, there shall be filed with the clerk in
the district court of the county in which the action is commenced (i) a
pleading setting forth a claim in favor of the plaintiff and against the
defendant in one of the situations defined in (5)(a) above; and (ii) in
situations defined in (5)(a)(i), (5)(a)(ii), (5)(a)(iii), upon return of the
summons showing the failure to find any defendant designated in the complaint,
an affidavit stating that such defendant resides out of the state, or has
departed from the state, or cannot, after due diligence, be found within the
state, or conceals defendant's person to avoid the service of summons; or, if
the defendant is a domestic or foreign corporation, that none of the persons
designated in D(2)(e) above can, after due diligence, be found within the
state; or, if the defendant is an unknown claimant, by showing that the affiant
has made diligent search and inquiry for all persons who claim, or might claim
any right, title, estate, or interest in, or lien, or encumbrance upon, such
property, or any thereof, adverse to plaintiff's ownership, or any cloud upon
plaintiff's title thereto, whether such claim or possible claim be present or
contingent, including any right of dower, inchoate or accrued, and that the
affiant has specifically named as defendants in such action all such persons
whose names can be ascertained; such affidavit shall be sufficient evidence of
the diligence of any inquiry made by the affiant, if the affidavit recite the
fact that diligent inquiry was made, and it need not detail the facts
constituting such inquiry, and if desired, it may be combined in one instrument
with the affidavit required under 4D(2)(f), or 4D(6); and (iii) in the
situation defined in (5)(a)(iv) above, there must be first presented to the
court proof that a valid attachment or garnishment has been effected. Upon
complying herewith, the plaintiff may obtain an order for the service of
summons to be made upon the defendants by publication, which order may be
issued by either the judge or the clerk of the court.
(d) Number of publications. Service of the
summons by publication may be made by publishing the same three times, once
each week for 3 successive weeks, in a newspaper published in the county in
which the action is pending, if a newspaper is published in such county, and if
no newspaper is published in such county then in a newspaper published in an
adjoining county and having a general circulation therein.
(e) Mailing summons and complaint. A
copy of the summons for publication and complaint, at any time after the filing
of the affidavit for publication and not later than 10 days after the first
publication of the summons, shall be deposited in some post office in this
state, postage prepaid, and directed to the defendant at defendant's place of
residence unless the affidavit for publication states that the residence of the
defendant is unknown. If the defendant is a corporation, and personal service
cannot with due diligence be effected within Montana on any of the persons
designated in D(2)(e) above, then service may be completed on said corporation
by service upon the secretary of state in the manner, and following the
procedure outlined in D(2)(f) above.
(f) Time when first publication or service
outside state must be made. The first publication of summons, or personal
service of the summons and complaint upon the defendant out of the state, must
be made within 60 days after the filing of the affidavit for publication. If
not so made, the action shall be deemed dismissed as to any party intended to
be served by such publication.
(g) When service by publication or outside state
complete. Service by publication is complete on the date of the last
publication of the summons, or in case of personal service of the summons and
complaint upon the defendant out of the state, on the date of such service.
(h) Additional information to be published. In
addition to the form of summons prescribed above in "C. Process, (2)
Summons--form," the published summons shall state in general terms the
nature of the action, and in all cases where publication of summons is made in
an action in which the title to, or any interest in or lien upon real property
is involved, or affected, or brought into question, the publication shall also
contain a description of the real property involved, affected or brought into
question thereby, and a statement of the object of the action.
(6) (a) Service on secretary of state. Whenever
service is to be made upon certain corporations as provided hereinabove in
D(2)(f) and D(5)(e), the requirements of said D(2)(f) must be complied with. In
all other cases, unless otherwise provided by statute, whenever the secretary
of state of the state of Montana has been appointed, or is deemed by law to
have been appointed, as the agent to receive service of process for any person
who cannot with due diligence be found or served personally within Montana, the
party, or the party's attorney, shall make an affidavit stating the facts
showing that the secretary of state is such agent, and stating the residence
and last known post-office address of the person to be served. Such affidavit
shall be filed with the clerk of court in which the claim for relief is
pending, accompanied by sufficient copies of the affidavit, summons and
complaint for service upon the secretary of state. The sum of $10 will be deposited
with said clerk to be paid to the secretary of state as a fee for each of said
defendants for whom the secretary of state is to receive such service; and
where service is requested at more than one address an additional $10 shall be
paid for each party to be served at each additional address. The clerk shall
forward the original summons, one copy of the summons and one copy of the
affidavit for the files of the secretary of state, and one copy of the summons
attached to copy of the complaint for each of the defendants to be served by
service upon the secretary of state, and the fee, to the office of the
secretary of state.
Such service on the secretary of state shall be
sufficient personal service upon the person to be served, provided that notice
of such service and a copy of the summons and complaint are forthwith sent by
registered or certified mail by the secretary of state or a deputy to the party
to be served at that party's last known address, marked "Deliver to
Addressee Only" and "Return Receipt Requested," and provided
further that such return receipt shall be received by the secretary of state
purporting to have been signed by said addressee, or the secretary of state
shall be advised by the postal authority that delivery of said registered or
certified mail was refused by said addressee, except in those cases where
compliance is excused under the provisions of D(2)(f) above. The date upon
which the secretary of state receives said return receipt, or receives advice
by the postal authority that delivery of said registered or certified mail was
refused by the addressee, shall be deemed the date of service.
As an alternative to sending the summons and
complaint by registered or certified mail, as herein provided, the secretary of
state, or a deputy, may cause copy of the summons and complaint to be served by
any qualified law enforcement officer, in accord with the procedure set out in
D(1), (2) or (3) of this rule. The secretary of state, or a
deputy, shall make an original and two copies of an affidavit reciting: (1) the
fact of service upon the secretary of state by the clerk of court, including
the day, and hour of such service; (2) the fact of mailing a copy of the
summons and complaint and notice to the defendant, including the day and hour
thereof, except in those cases where the secretary of state is relieved from
doing so under the provisions of D(2)(f) in which cases the affidavit shall so
recite; and (3) the fact of receipt of a return from the postal department
including the date, and hour thereof, and attaching to the affidavit a copy of
such return. The secretary of state, or a deputy, shall then transmit the
original summons, and original affidavit along with copy of the notice to the
defendant where such notice was required, to the clerk of court in which the
claim for relief is pending, and it shall be filed in the claim for relief by
said clerk of court; and the secretary of state shall also transmit to the
attorney for the plaintiff copy of the affidavit of the secretary of state
along with copy of the notice to the defendant where such notice was required.
The secretary of state shall keep on file in the secretary of state's office a
copy of the summons, a copy of the affidavit served on the secretary of state
by the clerk of court, and a copy of the affidavit executed and issued by the
secretary of state.
(b) Continuance to allow defense. In any of the
cases provided for in Rule 4D(2)(f) above, or provided for hereinabove in
4D(6)(a), the court in which the claim for relief is pending may order such
continuance as may be necessary to afford reasonable opportunity to defend the
action.
(7) Amendment. At any time, in its discretion,
and upon such notice and 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. (8) Proof of service. Proof
of the service of the summons and of the complaint or notice, if any,
accompanying the same must be as follows:
(a) If served by the sheriff or other officer,
the sheriff's or other officer's certificate thereof;
(b) If by any other person, that person's
affidavit thereof;
(c) In case of publication an affidavit of the
publisher and an affidavit of the deposit of a copy of the summons and
complaint in the post office as required by law, if the same shall have been
deposited; or (d) The written admission of the defendant showing the date
and place of service.
(e) If service is made under Rule 4D(1)(b) above,
return shall be made by the sender's filing with the court the acknowledgment
received pursuant to such subdivision. Failure to make proof of service does
not affect the validity of the service.
The certificate or affidavit of service mentioned in this subdivision
must state the time, date, place, and manner of service.
(9) Contents of affidavit of service. Whenever a
process, pleading, order of court, or other paper is served personally by a
person other than the sheriff or person designated by law, the affidavit of
service when made, shall state that the person so serving is of legal age, and
the date and place of making the service. It also shall state that the person making
such service knew the person served to be the person named in the papers served
and the person intended to be served.
(10) Procedure where only part of defendants are
served. If the summons is served on one or more, but not all, of the defendants,
the plaintiff may proceed to trial and judgment against the defendant or
defendants on whom the process is served, and may at any time thereafter have a
summons against the defendant not served with the first process to cause that
defendant to appear in said court to show cause why that defendant should not
be made a party to such judgment. Upon such defendant being duly served with
such process, the court shall hear and determine the matter in the same manner
as if such defendant had been originally brought into court, and such defendant
shall also be allowed the benefit of any payment or satisfaction which may have
been made on the judgment before recovered.
(1) A plaintiff shall have 3 years after filing a complaint to
have a summons issued and accomplish service. Unless appearance has been made
by the defendant(s), the court, upon motion or on its own initiative, shall
dismiss an action without prejudice if a plaintiff fails to either have the
summons issued or fails to accomplish service within 3 years from the date of
the filing of a complaint. The plaintiff shall file the summons with the clerk
of the court within 30 days after service, however, failure to do so shall not
affect the validity of service or serve as a basis for dismissal of said
action.
(2) A plaintiff who names a fictitious defendant
in the complaint, pursuant to 25-5-103, MCA, may amend the complaint to
substitute a real defendant for the fictitious defendant within 3 years of
filing the original complaint in the action. The 3 year time period set forth
in subparagraph (1) of this rule for issuance and service begins to run, as to
the newly identified defendant, from the date of the filing of the original
complaint. (3) The time limit imposed by subparagraphs (1) and (2) above
shall apply to all lawsuits in which the original complaints were filed on or
after January 1, 2000. The provisions of Rule 41(e), M.R.Civ.P., replaced by
this rule, shall apply to all lawsuits in which the original complaint was
filed before January 1, 2000.
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, demand, offer of judgment,
designation of record on appeal, and similar paper shall be served upon each of
the parties. 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.
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 is ordered by the court. Service upon
the attorney or upon a party shall be made by delivering a copy to the attorney
or the party or by mailing it to the attorney or the party at the attorney's or
the party's 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 attorney's or the party's
office with a clerk or other 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 that 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.
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 defendants 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.
All papers after the complaint required to be served upon a party,
together with a certificate of service, shall be filed with the court within a
reasonable time after service except that depositions upon oral examinations,
depositions upon written questions, interrogatories, requests for documents,
requests for admissions, and answers and responses shall not be routinely
filed. However, when any motion is filed relating to discovery, the parties
filing the motion shall at the same time attach to the motion all of the
documents relevant to the motion if the documents have not been previously
filed. If for any reason a party believes that any of the foregoing named
documents should be filed, the party may make an ex parte request that the
document be filed, stating the reasons for filing. Proof of service of a notice
to take a deposition shall continue to be filed.
The filing of papers with the court as required by these rules
shall be made by filing them with the clerk of the court, except that the judge
may permit the papers to be filed with the judge, in which event the judge shall
note thereon the filing date and forthwith transmit them to the office of the
clerk. Papers may be filed by facsimile or other electronic means, provided the
original document must be filed with the clerk within five business days of the
receipt of the facsimile copy or the filing will be treated as void.
Proof of service shall be made by an affidavit of the party or the
party's attorney making service, or by the certificate of the party's resident
attorney making service or by an acknowledgment in writing from the party or
attorney served, and such affidavit, certificate or acknowledgment shall be
filed within 10 days after service. Failure to make proof of service does not
affect the validity of the service.
In computing any period of time prescribed or allowed by these
rules, by order of court, or by any applicable statute, the day of the act,
event, or default after which the designated period of time begins to run is
not to be included. The last day of the period so computed is to be included,
unless it is a Saturday, Sunday or a legal holiday, or, when the act to be done
is the filing of a paper in court, a day on which weather or other conditions
have made the office of the clerk of the district court inaccessible, in which
event the period runs until the end of the next day which is not one of the
aforementioned days. When the period of time prescribed or allowed is less than
11 days, intermediate Saturdays, Sundays and holidays shall be excluded in the
computation. A half holiday shall be considered as other days and not as a
holiday.
When by these rules or by a notice given thereunder or by order of
court an act is required or allowed to be done at or within a specified time,
the court for cause shown may at any time in its discretion (1) with or without
motion or notice order the period enlarged if request therefor is made before
the expiration of the period originally prescribed or as extended by a previous
order or (2) upon motion made after the expiration of the specified period
permit the act to be done where the failure to act was the result of excusable
neglect; but it may not extend the time for taking any action under Rules 50(b)
and (c)(2), 52(b), 59(b), (d), (e) and (g), and 60(b), except to the extent and
under the conditions stated in them.
The period of time provided for the doing of any act or the taking
of any proceeding is not affected or limited by the continued existence or
expiration of a term of court. The continued existence or expiration of a term
of court in no way affects the power of a court to do any act or take any
proceeding in any civil action which has been pending before it.
A written motion, other than one which may be heard ex parte, and
notice of the hearing thereof shall be served not later than 5 days before the
time specified for the hearing, unless a different period is fixed by these
rules or by order of the court. Such an order may for cause shown be made on ex
parte application. When a motion is supported by affidavit, the affidavit shall
be served with the motion; and, except as otherwise provided in Rule 59(c),
opposing affidavits may be served not later than 1 day before the hearing,
unless the court permits them to be served at some other time.
Whenever a party has the right or is required to do some act or take
some proceedings within a prescribed period after the service of a notice or
other paper upon the party and the notice or paper is served upon the party by
mail, 3 days shall be added to the prescribed period.
(1) Every subpoena shall
(A) state the name of the court from
which it is issued; and
(B) state the title of the action, the name of
the court in which it is pending, and its civil action number;
and (C) command each person to whom it is directed to attend and
give testimony or to produce and permit inspection and copying of designated
books, documents, or tangible things in the possession, custody or control of
that person, or to permit inspection of premises, at a time and place therein
specified; and (D) set forth the text of subparagraphs (c) and (d) of this
rule. A command to produce evidence or to permit inspection may be joined with
a command to appear at trial or hearing or at deposition, or may be issued
separately.
(2) A subpoena shall issue from the court in
which the action is pending.
(3) The clerk shall issue a subpoena, signed but
otherwise in blank, to a party requesting it, who shall complete it before
service. An attorney as officer of the court may also issue and sign a subpoena
on behalf of a court in which the action is pending. (4) A party or
an attorney responsible for the issuance and service of a subpoena seeking
health care information, as defined by 50-16-504(6), Montana Code Annotated,
shall comply with the provisions of 50-16-535 and 50-16-536, Montana Code
Annotated.
(1)
A subpoena may be served by any person who is not a party and is not less than
18 years of age. Service of a subpoena upon a person named therein shall be
made by delivering a copy thereof to such person and, if the person's
attendance is commanded, by tendering to that person the fees for one day's
attendance and the mileage allowed by law. Prior notice of any commanded
production of documents and things or inspection of premises before trial shall
be served on each party in the manner prescribed by rule 5(b).
(2) Subject to the provisions of clause (ii) of
subparagraph (c)(3)(A) of this rule, a subpoena
(A) for attendance at a hearing or trial may be
served at any place within the state and may require the person subpoenaed to
appear at the hearing or trial irrespective of the person's place of residence,
place of employment, or where such person regularly transacts business in
person;
(B) for the production of documentary evidence
and/or the taking of a deposition may require a person to attend an examination
or produce documentary evidence only at a place within the state; and (i)
in the case of residents or entities located within the state, within 100 miles
of where that person resides or is employed or transacts business in person,
or, if on an entity, within 100 miles of the principal location of that entity,
or at such other convenient place as is fixed by order of court; (ii) in
the case of non-residents who have been served within the state, within 100
miles of where the non-resident is served, or at any other convenient place as
is fixed by order of court. (3) Proof of service when necessary
shall be made by filing with the clerk of the court by which the subpoena is
issued a statement of the date and manner of service and of the names of the
persons served, certified by the person who made the service.
In Montana, lobbyists and state officials are always active in
transforming laws concerning civil procedure.
As a result, state information offered on our website may have been
amended recently. For contemporary
process serving and civil statutes, visit the official Montana Judicial System
Court website: http://www.montanacourts.org/
