In the state of Ohio, no process server license is required. When the plaintiff files a written request
with the clerk for personal service, service of process shall be made by that
method. When process issued from the Supreme Court, a court of appeals, a court
of common pleas, or a county court is to be served personally, the clerk of the
court shall deliver the process and sufficient copies of the process and
complaint, or other document to be served, to the sheriff of the county in
which the party to be served resides or may be found. When process issues from
the municipal court, delivery shall be to the bailiff of the court for service
on all defendants who reside or may be found within the county or counties in
which that court has territorial jurisdiction and to the sheriff of any other
county in this state for service upon a defendant who resides in or may be
found in that other county.
In the alternative, process issuing from any of these courts may be delivered
by the clerk to any person not less than eighteen years of age, who is not a
party and who has been designated by order of the court to make service of
process. The person serving process shall locate the person to be served and
shall tender a copy of the process and accompanying documents to the person to
be served. When the copy of the process has been served, 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 appearance docket. When the person
serving process is unable to serve a copy of the process within twenty-eight
days, the person shall endorse that fact and the reasons therefore on the
process and return the process and copies to the clerk who shall make the
appropriate entry on the appearance docket. In the event of failure of service,
the clerk shall follow the notification procedure set forth in division (A) of
this rule. Failure to make service within the twenty-eight day period and
failure to make proof of service do not affect the validity of the service.
Table of Contents
TITLE II. COMMENCEMENT OF ACTION
AND VENUE; SERVICE OF PROCESS; SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS
SUBSEQUENT TO THE ORIGINAL COMPLAINT; TIME
RULE 4. Process: Summons
RULE 4.1 Process: Methods of
Service
RULE 4.1 Process: Methods of
Service
RULE 4.2 Process: Who May be
Served
RULE 4.2 Process: Who may be
served
RULE 4.2 Process: Who May be
Served
RULE 4.3 Process: Out-of-State
Service
RULE 4.3 Process: Out-of-state
service
RULE 4.5 Process: Alternative Provisions
for Service in a Foreign Country
RULE 4.5 Process: Alternative
Provisions for Service in a Foreign Country
RULE 4.6 Process: Limits;
Amendment; Service Refused; Service Unclaimed
RULE 4.6 Process: Limits;
amendment; service refused; service unclaimed
RULE 5. Service and Filing of
Pleadings and Other Papers Subsequent to the Original Complaint
Civil
Rule 5 Service and Filing of Pleadings and Other Papers Subsequent to the
Original Complaint
Civil
Rule 5(E) Filing with the court defined
RULE 6. Time
RULE 3. Commencement of Action; Venue
(A)
Commencement. A civil action is
commenced by filing a complaint with the court, if service is obtained within
one year from such filing upon a named defendant, or upon an incorrectly named
defendant whose name is later corrected pursuant to Civ.R. 15(C), or upon a defendant
identified by a fictitious name whose name is later corrected pursuant to
Civ.R. 15(D).
(B)
Venue: where proper. Any action may be
venued, commenced , and decided in any court in any county. When applied to
county and municipal courts, county, as used in this rule, shall be
construed, where appropriate, as the territorial limits of those courts. Proper
venue lies in any one or more of the following counties:
(1) The county in which
the defendant resides;
(2) The county in which
the defendant has his or her principal place of business;
(3) A county in which
the defendant conducted activity that gave rise to the claim for relief;
(4) A county in which a
public officer maintains his or her principal office if suit is brought against
the officer in the officer's official capacity;
(5) A county in which
the property, or any part of the property, is situated if the subject of the
action is real property or tangible personal property;
(6) The county in which
all or part of the claim for relief arose; or, if the claim for relief arose
upon a river, other watercourse, or a road, that is the boundary of the state,
or of two or more counties, in any county bordering on the river, watercourse,
or road, and opposite to the place where the claim for relief arose;
(7) In actions described
in Civ.R. 4.3, in the county where plaintiff resides;
(8) In an action against
an executor, administrator, guardian, or trustee, in the county in which the
executor, administrator, guardian, or trustee was appointed;
(9) In actions for
divorce, annulment, or legal separation, in the county in which the plaintiff
is and has been a resident for at least ninety days immediately preceding the
filing of the complaint;
(10) In actions for a
civil protection order, in the county in which the petitioner currently or
temporarily resides;
(11) In tort actions
involving asbestos claims, silicosis claims, or mixed dust disease claims, only
in the county in which all of the exposed plaintiffs reside, a county where all
of the exposed plaintiffs were exposed to asbestos, silica, or mixed dust, or
the county in which the defendant has his or her principal place of business.
(12) If there is no
available forum in divisions (B)(1) to (B)(10) of this rule, in the county in
which plaintiff resides, has his or her principal place of business, or
regularly and systematically conducts business activity;
(13) If there is no
available forum in divisions (B)(1) to (B)(11) of this rule:
(a) In a county in which
defendant has property or debts owing to the defendant subject to attachment or
garnishment;
(b) In a county in which
defendant has appointed an agent to receive service of process or in which an
agent has been appointed by operation of law.
(A)
Summons: issuance. Upon the filing of the
complaint the clerk shall forthwith issue a summons for service upon each
defendant listed in the caption. Upon request of the plaintiff separate or
additional summons shall issue at any time against any defendant.
(B)
Summons: form; copy of complaint. The
summons shall be signed by the clerk, contain the name and address of the court
and the names and addresses 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 times within which these rules or any statutory
provision require the defendant to appear and defend, and shall notify him that
in case of his failure to do so, judgment by default will be rendered against
him for the relief demanded in the complaint. Where there are multiple
plaintiffs or multiple defendants, or both, the summons may contain, in lieu of
the names and addresses of all parties, the name of the first party on each
side and the name and address of the party to be served.
A copy of the complaint
shall be attached to each summons. The plaintiff shall furnish the clerk with
sufficient copies.
(C)
Summons: plaintiff and defendant defined. For the purpose of issuance and service of
summons "plaintiff" shall include any party seeking the issuance and
service of summons, and "defendant" shall include any party upon whom
service of summons is sought.
(D)
Waiver of service of summons.
Service of summons may be waived in writing by any person entitled thereto
under Rule 4.2 who is at least eighteen years of age and not under disability.
(E)
Summons: time limit for service. If a
service of the summons and complaint is not made upon a defendant within six
months after the filing of the complaint and the party on whose behalf such
service was required cannot show good cause why such service was not made
within that period, the action shall be dismissed as to that defendant without
prejudice upon the court's own initiative with notice to such party or upon
motion. This division shall not apply to out-of-state service pursuant to Rule
4.3 or to service in a foreign country pursuant to Rule 4.5.
[Effective: July 1,
1970; amended effective July 1, 1971; July 1, 1973; July 1, 1975; July 1,
1984.]
All methods of service
within this state, except service by publication as provided in Civ. R. 4.4(A),
are described in this rule. Methods of out-of-state service and for service in
a foreign country are described in Civ. R. 4.3 and 4.5.
(A)
Service by certified or express mail.
Evidenced by return receipt signed by any person, service of any process shall
be by certified or express mail unless otherwise permitted by these rules. The
clerk shall place a copy of the process and complaint or other document to be
served in an envelope. The clerk shall address the envelope to the person to be
served at the address set forth in the caption or at the address set forth in
written instructions furnished to the clerk with instructions to forward. The
clerk shall affix adequate postage and place the sealed envelope in the United
States mail as certified or express mail return receipt requested with
instructions to the delivering postal employee to show to whom delivered, date
of delivery, and address where delivered.
The clerk shall
forthwith enter the fact of mailing on the appearance docket and make a similar
entry when the return receipt is received. If the envelope is returned with an
endorsement showing 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 and enter the fact of notification on the
appearance docket. The clerk shall file the return receipt or returned envelope
in the records of the action.
All postage shall be
charged to costs. If the parties to be served by certified or express mail are
numerous and the clerk determines there is insufficient security for costs, the
clerk may require the party requesting service to advance an amount estimated
by the clerk to be sufficient to pay the postage.
(B)
Personal service. When the plaintiff
files a written request with the clerk for personal service, service of process
shall be made by that method.
When process issued from
the Supreme Court, a court of appeals, a court of common pleas, or a county
court is to be served personally, the clerk of the court shall deliver the
process and sufficient copies of the process and complaint, or other document to
be served, to the sheriff of the county in which the party to be served resides
or may be found. When process issues from the municipal court, delivery shall
be to the bailiff of the court for service on all defendants who reside or may
be found within the county or counties in which that court has territorial
jurisdiction and to the sheriff of any other county in this state for service
upon a defendant who resides in or may be found in that other county. In the
alternative, process issuing from any of these courts may be delivered by the
clerk to any person not less than eighteen years of age, who is not a party and
who has been designated by order of the court to make service of process. The
person serving process shall locate the person to be served and shall tender a
copy of the process and accompanying documents to the person to be served. When
the copy of the process has been served, 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 appearance docket.
When the person serving
process is unable to serve a copy of the process within twenty-eight days, the
person shall endorse that fact and the reasons therefor on the process and
return the process and copies to the clerk who shall make the appropriate entry
on the appearance docket. In the event of failure of service, the clerk shall
follow the notification procedure set forth in division (A) of this rule.
Failure to make service within the twenty-eight day period and failure to make
proof of service do not affect the validity of the service.
(C)
Residence service. When the plaintiff
files a written request with the clerk for residence service, service of
process shall be made by that method.
Residence service shall
be effected by leaving a copy of the process and the complaint, or other
document to be served, at the usual place of residence of the person to be
served with some person of suitable age and discretion then residing therein.
The clerk of the court shall issue the process, and the process server shall
return it, in the same manner as prescribed in division (B) of this rule. When
the person serving process is unable to serve a copy of the process within
twenty-eight days, the person shall endorse that fact and the reasons therefor
on the process, and return the process and copies to the clerk, who shall make
the appropriate entry on the appearance docket. In the event of failure of
service, the clerk shall follow the notification procedure set forth in
division (A) of this rule. Failure to make service within the twenty-eight-day
period and failure to make proof of service do not affect the validity of
service.
[Effective: July 1,
1970; amended effective July 1, 1971; July 1, 1980; July 1, 1997.]
Staff Note (July 1, 1997
Amendment)
Prior to the 1997
amendment, service of process under this rule was permitted only by certified
mail. It appears that service of process by express mail, i.e. as that sort of
mail is delivered by the United States Postal Service, can always be obtained
return receipt requested, and thus could accomplish the purpose of notification
as well as certified mail. The amendment provides for this additional option
for service.
Other amendments to this
rule are nonsubstantive grammatical or stylistic changes, including lettering
of the divisions (A-C) in place of the previous numbering (1-3).
Service of process,
except service by publication as provided in Civ. R. 4.4(A), pursuant to Civ.
R. 4 through 4.6 shall be made as follows:
(A)
Upon an individual, other than a person
under sixteen years of age or an incompetent person, by serving the individual;
(B)
Upon a person under sixteen years of age
by serving either the person's guardian or any one of the following persons
with whom the person to be served lives or resides: father, mother, or the
individual having the care of the person; or by serving the person if the
person neither has a guardian nor lives or resides with a parent or a person
having his or her care;
(C)
Upon an incompetent person by
serving either the incompetent's guardian or the person designated in division
(E) of this rule, but if no guardian has been appointed and the incompetent is
not under confinement or commitment, by serving the incompetent;
(D)
Upon an individual confined to a penal institution of this state or of a subdivision of this state by
serving the individual, except that when the individual to be served is a
person under sixteen years of age, the provisions of division (B) of this rule
shall be applicable;
(E)
Upon an incompetent person who
is confined in any institution for the mentally ill or mentally deficient or
committed by order of court to the custody of some other institution or person by
serving the superintendent or similar official of the institution to which the
incompetent is confined or committed or the person to whose custody the
incompetent is committed;
(F)
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 or express mail at any of its usual places of business; or by serving
an officer or a managing or general agent of the corporation;
(G)
Upon a partnership, a limited partnership, or a limited partnership association
by serving the entity by
certified or express mail at any of its usual places of business or by serving
a partner, limited partner, manager, or member;
(H)
Upon an unincorporated association by
serving it in its entity name by certified or express mail at any of its usual
places of business or by serving an officer of the unincorporated association;
(I)
Upon a professional association by
serving the association in its corporate name by certified or express mail at
the place where the corporate offices are maintained or by serving a
shareholder;
(J)
Upon this state or any one of its
departments, offices and institutions as defined in division (C) of section
121.01 of the Revised Code, by serving the officer responsible for the
administration of the department, office or institution or by serving the
attorney general of this state;
(K)
Upon a county or upon any of its
offices, agencies, districts, departments, institutions or administrative units,
by serving the officer responsible for the administration of the office,
agency, district, department, institution or unit or by serving the prosecuting
attorney of the county;
(L)
Upon a township by serving one or more
of the township trustees or the township clerk or by serving the prosecuting
attorney of the county in which the township is located, unless the township is
organized under Chapter 504. of the Revised Code, in which case service may be
made upon the township law director;
(M)
Upon a municipal corporation or
upon any of its offices, departments, agencies, authorities, institutions or
administrative units by serving the officer responsible for the administration
of the office, department, agency, authority, institution or unit or by serving
the city solicitor or comparable legal officer;
(N)
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" responsible for the administration of the
entity shall be sufficient.
[Effective: July 1,
1970; amended effective July 1, 1971; July 1, 1996; July 1, 1997.]
Staff Note (July 1, 1997
Amendment)
Prior to the 1997
amendment, service of process under this rule was permitted only by certified
mail. It appears that service of process by express mail, i.e. as that sort of
mail is delivered by the United States Postal Service, can always be obtained
return receipt requested, and thus could accomplish the purpose of notification
equally well as certified mail. Therefore, the amendment provides for this
additional option for service.
Other amendments to this
rule are nonsubstantive grammatical or stylistic changes, including lettering
of the divisions (A-N) in place of the previous numbering (1-14).
Staff Note (July 1, 1996
Amendment)
In 1991, the General
Assembly enacted Chapter 504 of the Ohio Revised Code to give townships an
option to organize the "limited self-government form" of government.
Townships electing this form of government are required by law to appoint a law
director who "shall be the legal advisor to the board of township trustees
... and all other township officers." R.C. 504.15. Upon attaining Chapter
504 status, then, the prosecuting attorney of the county in which the township
is located no longer serves as the "legal advisor" of the township. The
amendment recognizes this statutory development and should facilitate service
of process in actions against Chapter 504 townships.
(A)
When service permitted.
Service of process may be made outside of this state, as provided in this rule,
in any action in this state, upon a person who, at the time of service of
process, is a nonresident of this state or is a resident of this state who is
absent from this state. "Person" includes an individual, an individual's
executor, administrator, or other personal representative, or a corporation,
partnership, association, or any other legal or commercial entity, who, acting
directly or by an agent, has caused an event to occur out of which the claim
that is the subject of the complaint arose, from the person's:
(1) Transacting any
business in this state;
(2) Contracting to
supply services or goods in this state;
(3) Causing tortious
injury 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 or
aircraft in this state;
(4) Causing tortious
injury in this state by an act or omission outside this state if the person
regularly does or solicits business, engages in any other persistent course of conduct,
or derives substantial revenue from goods used or consumed or services rendered
in this state;
(5) Causing injury 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 to be served might
reasonably have expected the person who was injured to use, consume, or be
affected by the goods in this state, provided that the person to be served also
regularly does or solicits business, engages in any other persistent course of conduct,
or derives substantial revenue from goods used or consumed or services rendered
in this state;
(6) Having an interest
in, using, or possessing real property in this state;
(7) Contracting to
insure any person, property, or risk located within this state at the time of
contracting;
(8) Living in the
marital relationship within this state notwithstanding subsequent departure
from this state, as to all obligations arising for spousal support, custody,
child support, or property settlement, if the other party to the marital
relationship continues to reside in this state;
(9) Causing tortious
injury in this state to any person by an act outside this state committed with
the purpose of injuring persons, when the person to be served might reasonably
have expected that some person would be injured by the act in this state;
(10) Causing tortious
injury to any person by a criminal act, any element of which takes place in
this state, that the person to be served commits or in the commission of which
the person to be served is guilty of complicity.
(B)
Methods of service.
(1) Service by certified
or express mail. Evidenced by return receipt signed by any person, service of
any process shall be by certified or express mail unless otherwise permitted by
these rules. The clerk shall place a copy of the process and complaint or other
document to be served in an envelope. The clerk shall address the envelope to
the person to be served at the address set forth in the caption or at the
address set forth in written instructions furnished to the clerk with
instructions to forward. The clerk shall affix adequate postage and place the
sealed envelope in the United States mail as certified or express mail return
receipt requested with instructions to the delivering postal employee to show
to whom delivered, date of delivery, and address where delivered.
The clerk shall
forthwith enter the fact of mailing on the appearance docket and make a similar
entry when the return receipt is received. If the envelope is returned with an
endorsement showing 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 and enter the fact of notification on the
appearance docket. The clerk shall file the return receipt or returned envelope
in the records of the action. If the envelope is returned with an endorsement
showing failure of delivery, service is complete when the attorney or serving
party, 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.
All postage shall be
charged to costs. If the parties to be served by certified or express mail are
numerous and the clerk determines there is insufficient security for costs, the
clerk may require the party requesting service to advance an amount estimated
by the clerk to be sufficient to pay the postage.
(2) Personal service.
When ordered by the court, a "person" as defined in division (A) of
this rule may be personally served with a copy of the process and complaint or
other document to be served. Service under this division may be made by any
person not less than eighteen 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 for transmission to the person who will make the
service.
Proof of service may be
made as prescribed by Civ. R. 4.1 (B) or by order of the court.
[Effective: July 1,
1970; amended effective July 1, 1971; July 1, 1980; July 1, 1988; July 1, 1991;
July 1, 1997.]
Staff Note (July 1, 1997
Amendment)
Prior to the 1997
amendment, service of process under this rule was permitted only by certified
mail. It appears that service of process by express mail, i.e. as that sort of
mail is delivered by the United States Postal Service, can always be obtained
return receipt requested, and thus could accomplish the purpose of notification
equally well as certified mail. Therefore, the amendment provides for this
additional option for service.
Other amendments to this
rule are nonsubstantive grammatical or stylistic changes.
RULE 4.4 Process: Service by Publication
(A)
Residence unknown.
(1) Except in an action
governed by division (A)(2) of this rule, if the residence of a defendant is
unknown, service shall be made by publication in actions where such service is
authorized by law. Before service by publication can be made, an affidavit of a
party or his counsel shall be filed with the court. The affidavit shall aver
that service of summons cannot be made because the residence of the defendant
is unknown to the affiant, all of the efforts made on behalf of the party to
ascertain the residence of the defendant, and that the residence of the
defendant cannot be ascertained with reasonable diligence.
Upon the filing of the
affidavit, the clerk shall cause service of notice to be made by publication in
a newspaper of general circulation in the county in which the complaint is
filed. If no newspaper is published in that county, then publication shall be
in a newspaper published in an adjoining county. The publication shall contain
the name and address of the court, the case number, the name of the first party
on each side, and the name and last known address, if any, of the person or
persons whose residence is unknown. The publication also shall contain a
summary statement of the object of the complaint and demand for relief, and
shall notify the person to be served that he or she is required to answer
within twenty-eight days after the publication. The publication shall be
published at least once a week for six successive weeks unless publication for
a lesser number of weeks is specifically provided by law. Service shall be
complete at the date of the last publication.
After the last
publication, the publisher or its 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.
(2) In a divorce,
annulment, or legal separation action, if the plaintiff is proceeding in forma
pauperis and if the residence of the defendant is unknown, service by
publication shall be made by posting and mail. Before service by posting and
mail can be made, an affidavit of a party or the party's counsel shall be filed
with the court. The affidavit shall contain the same averments required by
division (A)(1) of this rule and, in addition, shall set forth the defendant's
last known address.
Upon the filing of the
affidavit, the clerk shall cause service of notice to be made by posting in a
conspicuous place in the courthouse or courthouses in which the general and domestic
relations divisions of the court of common pleas for the county are located and
in two additional public places in the county that have been designated by
local rule for the posting of notices pursuant to this rule. The notice shall
contain the same information required by division (A)(1) of this rule to be
contained in a newspaper publication. The notice shall be posted in the
required locations for six successive weeks.
The clerk shall also
cause the complaint and summons to be mailed by ordinary mail, address
correction requested, to the defendant's last known address. The clerk shall
obtain a certificate of mailing from the United States Postal Service. If the
clerk is notified of a corrected or forwarding address of the defendant within
the six-week period that notice is posted pursuant to division (A)(2) of this
rule, the clerk shall cause the complaint and summons to be mailed to the
corrected or forwarding address. The clerk shall note the name, address, and
date of each mailing in the docket.
After the last week of
posting, the clerk shall note on the docket where and when notice was posted.
Service shall be complete upon the entry of posting.
(B)
Residence known. If the residence of a
defendant is known, and the action is one in which service by publication is
authorized by law, service of process shall be effected by a method other than
by publication as provided by:
(1) Rule 4.1, if the
defendant is a resident of this state,
(2) Rule 4.3(B) if
defendant is not a resident of this state, or
(3) Rule 4.5, in the
alternative, if service on defendant is to be effected in a foreign country.
If service of process
cannot be effected under the provisions of this subdivision or Rule 4.6(C) or
Rule 4.6(D), service of process shall proceed by publication.
[Effective: July 1,
1970; amended effective July 1, 1971; July 1, 1991.]
(A)
Manner. When Civ. R. 4.3 or Civ. R.
4.4 or both allow service upon a person outside this state and service is to be
effected in a foreign country, service of the summons and complaint may also be
made:
(1) 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 when service is calculated
to give actual notice;
(2) As directed by the
foreign authority in response to a letter rogatory when service is calculated
to give actual notice;
(3) Upon an individual
by delivery to him personally;
(4) Upon a corporation
or partnership or association by delivery to an officer, a managing or general
agent;
(5) By any form of mail
requiring a signed receipt, when the clerk of the court addresses and
dispatches this mail to the party to be served;
(6) As directed by order
of the court.
Service under division
(A)(3) or (A)(6) of this rule may be made by any person not less than eighteen
years of age who is not a party and who has been 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.
(B)
Return. Proof of service may be made
as prescribed by Civ. R. 4.1(B), or by the law of the foreign country, or by
order of the court. When mail service is made pursuant to division (A)(5) of
this rule, proof of service shall include a receipt signed by the addressee or
other evidence of delivery to the addressee satisfactory to the court.
[Effective: July 1,
1970; amended effective July 1, 1997.]
Staff Note (July 1, 1997
Amendment)
The 1997 amendment
changed a cross-reference in division (B) necessitated by the relettering of
Civ. R. 4.1, also effective July 1, 1997. Other amendments to this rule are
nonsubstantive grammatical or stylistic changes.
(A)
Limits of effective service. All
process may be served anywhere in this state and, when authorized by law or
these rules, may be served outside this state.
(B)
Amendment. The court within its
discretion and upon such terms as are just, may at any time allow 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.
(C)
Service refused. If service of process
is refused, and the certified or express mail envelope is returned with an
endorsement showing such refusal, or the return of the person serving process
states that service of process has been refused, 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. If the attorney, or serving
party, after notification by the clerk, files with the clerk a written request
for ordinary mail service, the clerk shall send by ordinary mail a copy of the
summons and complaint or other document to be served to the defendant at the address
set forth in the caption, or at the address set forth in written instructions
furnished to the clerk. The mailing shall be evidenced by a certificate of
mailing which shall be completed and filed by the clerk. Answer day shall be
twenty-eight days after the date of mailing as evidenced by the certificate of
mailing. The clerk shall endorse this answer date upon the summons which is
sent by ordinary mail. Service shall be deemed complete when the fact of
mailing is entered of record. Failure to claim certified or express mail
service is not refusal of service within the meaning of division (C) of this
rule.
(D)
Service unclaimed. If a certified or
express mail envelope is returned with an endorsement showing that the envelope
was unclaimed, 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. If the attorney, or serving party, after notification by
the clerk, files with the clerk a written request for ordinary mail service,
the clerk shall send by ordinary mail a copy of the summons and complaint or
other document to be served to the defendant at the address set forth in the
caption, or at the address set forth in written instructions furnished to the
clerk. The mailing shall be evidenced by a certificate of mailing which shall
be completed and filed by the clerk. Answer day shall be twenty-eight days
after the date of mailing as evidenced by the certificate of mailing. The clerk
shall endorse this answer date upon the summons which is sent by ordinary mail.
Service shall be deemed complete when the fact of mailing is entered of record,
provided that the ordinary mail envelope is not returned by the postal
authorities with an endorsement showing failure of delivery. If the ordinary
mail envelope is returned undelivered, the clerk shall forthwith notify the
attorney, or serving party, by mail.
(E)
Duty of attorney of record or serving party. The attorney of record or the serving party shall
be responsible for determining if service has been made and shall timely file
written instructions with the clerk regarding completion of service
notwithstanding the provisions in Civ. R. 4.1 through 4.6 which instruct a
clerk to notify the attorney of record or the serving party of failure of
service of process.
[Effective: July 1,
1970; amended effective July 1, 1971; July 1, 1978; July 1, 1997.]
Staff Note (July 1, 1997
Amendment)
Prior to the 1997
amendment, service of process under this rule was permitted only by certified
mail. It appears that service of process by express mail, i.e. as that sort of
mail is delivered by the United States Postal Service, can always be obtained
return receipt requested, and thus could accomplish the purpose of notification
equally well as certified mail. Therefore, the amendment provides for this
additional option for service.
Other amendments to this
rule are nonsubstantive grammatical or stylistic changes.
(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,
demand, offer of judgment, and similar paper shall be served upon each of the
parties. Service is not required on parties in default for failure to appear
except that pleadings asserting new or additional claims for relief or for
additional damages against them shall be served upon them in the manner
provided for service of summons in Civ. R. 4 through Civ. R. 4.6.
(B)
Service: how made. Whenever under these
rules service is required or permitted
to be made upon a party who is represented by an attorney of record in the
proceedings, the
service shall be made upon the attorney unless service upon the party is
ordered by the court. Service upon the attorney or party shall be made by
delivering a copy to the person to be served, transmitting it to the office of
the person to be served by facsimile transmission, mailing it to the last known
address of the person to be served or, if no address is known, leaving it with
the clerk of the court. The served copy shall be accompanied by a completed
copy of the proof of service required by division (D) of this rule.
"Delivering a copy" within this rule means: handing it to the
attorney or party; leaving it at the office of the person to be served with a
clerk or other person in charge; if there is no one in charge, leaving it in a
conspicuous place in the office; or, if the office is closed or the person to
be served has no office, leaving it at the dwelling house or usual place of
abode of the person to be served with some person of suitable age and
discretion then residing in the dwelling house or usual place of abode. Service
by mail is complete upon mailing. Service by facsimile transmission is complete
upon transmission.
(C)
Service: 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 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.
(D)
Filing. All papers, after the
complaint, required to be served upon a party shall be
filed with the court within three days after service, but depositions upon oral
examination,
interrogatories, requests for documents, requests for admission, and answers
and responses
thereto shall not be filed unless on order of the court or for use as evidence
or for consideration of a motion in the proceeding. Papers filed with the court
shall not be considered until proof of service is endorsed thereon or
separately filed. The proof of service shall state the date and manner of
service and shall be signed in accordance with Civ. R. 11.
(E)
Filing with the court defined. The
filing of documents with the court, as
required by these rules, shall be made by filing them with the clerk of court,
except that the judge may permit the documents to be filed with the judge, in
which event the judge shall note the filing date on the documents and transmit
them to the clerk. A court may provide, by local rules adopted pursuant to the
Rules of Superintendence, for the filing of documents by electronic means. If
the court adopts such local rules, they shall include all of the following:
(1) Any signature on
electronically transmitted documents shall be considered that of
the attorney or party it purports to be for all purposes. If it is established
that the documents
were transmitted without authority, the court shall order the filing stricken.
(2) A provision shall
specify the days and hours during which electronically
transmitted documents will be received by the court, and a provision shall
specify when
documents received electronically will be considered to have been filed.
(3) Any document filed
electronically that requires a filing fee may be rejected by the
clerk of court unless the filer has complied with the mechanism established by
the court for the payment of filing fees.
[Effective: July 1,
1970; amended effective July 1, 1971; July 1, 1984; July 1, 1991; July
1, 1994; July 1, 2001.]
Staff
Note (July 1, 2001 Amendment)
The amendments to this
rule were part of a group of amendments that were
submitted by the Ohio Courts Digital Signatures Task Force to establish minimum
standards for the use of information systems, electronic signatures, and
electronic filing.
The substantive amendment to this rule was the amendment of the second sentence
and the addition of the last sentence of division (E), and the addition of
divisions (E)(2)
and (E)(3). Comparable amendments were made to Civil Rule 73 (for probate
courts),
Criminal Rule 12, Juvenile Rule 8, and Appellate Rule 13.
As part of this
electronic filing and signature project, the following rules were
amended effective July 1, 2001: Civil Rules 5, 11, and 73; Criminal Rule 12;
Juvenile
Rule 8; and Appellate Rules 13 and 18. In addition, Rule 26 of the Rules of
Superintendence for Courts of Ohio was amended and Rule of Superintendence 27
was
added to complement the rules of procedure. Superintendence Rule 27 establishes
a
process by which minimum standards for information technology are promulgated,
and
requires that courts submit any local rule involving the use of information
technology to a
technology standards committee designated by the Supreme Court for approval.
(A)
Time: computation. In computing any period
of time prescribed or allowed by these rules, by the local rules of any court,
by order of court, or by any applicable statute, the day of the act, event, or
default from which the designated period of time begins to run shall not be
included. The last day of the period so computed shall be included, unless it
is a Saturday, a Sunday, or a legal holiday, in which event the period runs
until the end of the next day which is not a Saturday, a Sunday, or a legal
holiday. When the period of time prescribed or allowed is less than seven days,
intermediate Saturdays, Sundays, and legal holidays shall be excluded in the
computation. When a public office in which an act, required by law, rule, or
order of court, is to be performed is closed to the public for the entire day
which constitutes the last day for doing such an act, or before its usual
closing time on such day, then such act may be performed on the next succeeding
day which is not a Saturday, a Sunday, or a legal holiday.
(B)
Time: extension. 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 Rule 50(B), Rule 59(B), Rule 59(D),
and Rule 60(B), except to the extent and under the conditions stated in them.
(C) Time: unaffected by expiration of term.
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 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 consistent with these rules.
(D)
Time: motions. A written motion, other
than one which may be heard ex parte, and notice of the hearing thereof shall
be served not later than seven days before the time fixed 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 one day before the hearing, unless the court
permits them to be served at some other time.
(E)
Time: additional time after service by mail. 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 him and the notice or paper is served
upon him by mail, three days shall be added to the prescribed period. This
subdivision does not apply to responses to service of summons under Rule 4
through Rule 4.6.
[Effective: July 1,
1970; amended effective July 1, 1978.]
In Ohio, 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 Ohio Judicial System Court website: http://www.sconet.state.oh.us/
