VERMONT
RULES OF CIVIL PROCEDURE
In the state of
Vermont, no process server license is required. Service of all process shall be made by a: sheriff or deputy
sheriff, constable or other person authorized by law, some indifferent person specially
appointed for that purpose by any superior judge, or a judge of the court to
which it is returnable, except that process served under subdivision (f), or a
notice and request sent pursuant to subdivision (l), of this rule may be
deposited in the mail by plaintiff or plaintiff's attorney and a subpoena.
Special appointments to serve process shall be made freely when substantial
savings in travel fees will result.
Rule 4. Process
Summons: Issuance
Same: Form
By whom served
Summons: Personal Service
Within the State
Personal Service Outside the
State
Service by Mail
Service by Publication
Territorial Limits of Effective
Service
Return of Service
Amendment
Alternative Provisions for
Service in a Foreign Country
Waiver of Service; Duty to Save
Costs of Service; Request to Waive
Rule 45. Subpoena
Form; Issuance
Service
Protection of Persons Subject to
Subpoenas
Duties in Responding to Subpoena
Contempt
Failure To Appear
Rule 4. Process
SUMMONS: ISSUANCE.
The summons shall be filled out by the plaintiff's attorney as
provided in subdivision (b) of this rule. The plaintiff's attorney shall deliver
to the person who is to make service the original summons or a copy upon which
to make a return of service and a copy of the summons and of the complaint for
service upon the defendant.
SAME: FORM.
The summons shall be signed by the plaintiff's attorney, or, if
the plaintiff has no attorney, by any Superior Judge or a judge or the clerk of
the court to which it is returnable. It shall 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 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.
BY WHOM SERVED.
Service of all process shall be made by a sheriff or deputy
sheriff, by a constable or other person authorized by law, or by some
indifferent person specially appointed for that purpose by any superior judge,
or a judge of the court to which it is returnable, except that process served
under subdivision (f), or a notice and request sent pursuant to subdivision
(l), of this rule may be deposited in the mail by plaintiff or plaintiff's
attorney and a subpoena smay be served as provided in Rule 45. Special
appointments to serve process shall be made freely when substantial savings in
travel fees will result.
SUMMONS: PERSONAL SERVICE WITHIN
THE STATE.
The summons and complaint shall be served together. Personal
service within the state shall be made as follows:
1. Upon an individual 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. If the individual is an infant or incompetent
person, process may be served upon the individual by one of the foregoing
methods, or as follows: i. Upon an
infant by delivering a copy of the summons and of the complaint personally (a)
to the infant and (b) also to the infant's guardian if the infant has one
within the state, known to the plaintiff, and if not, then the infant's father
or mother or other person having the infant's care or control, or with whom the
infant resides, or if service cannot be made upon any of them, then as provided
by order of the court. ii. Upon an
incompetent person by delivering a copy of the summons and of the complaint
personally (a) to the guardian of that person or a competent adult member of
that person's family with whom that person resides, or if that 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.
2. Upon
the State of Vermont or any agency or officer thereof, by delivering a copy of
the summons and of the complaint to the Attorney General or the Deputy Attorney
General.
3. Upon
a county, by delivering a copy of the summons and of the complaint to the
county clerk or the county treasurer.4. Upon
a town, by delivering a copy of the summons and of the complaint to the clerk,
treasurer, manager, or one of the selectmen. 5. Upon
a city, by delivering a copy of the summons and of the complaint to the clerk,
treasurer, or manager. 6. Upon any
other public corporation, body, or authority, by delivering a copy of the
summons and of the complaint to any officer, director, superintendent, or
manager thereof. 7. Upon a domestic
or foreign private corporation, by delivering a copy of the summons and of the
complaint to an officer, a director, a managing or general agent, a
superintendent, or to any other agent authorized by appointment or by law to
receive service of process, provided that any further notice required by a
statute authorizing an agent to receive service shall also be given. For
purposes of this paragraph the officers of a national bank shall include the
cashier and assistant cashiers thereof. If none of the foregoing persons is
present in the state, such copies may be delivered to any person in the actual
employment of the corporation or to one of the stockholders, or, if no such
person be found, may be left at an office or place of business of the
corporation within the state. 8. Upon a
partnership or unincorporated association or joint stock company, by delivering
a copy of the summons and of the complaint to an officer, a managing or general
agent, a superintendent, any member thereof, or any other agent authorized by
appointment or by law to receive service of process, provided that any further
notice required by a statute authorizing an agent to receive service shall also
be given.
PERSONAL SERVICE OUTSIDE THE
STATE.
A person whose contact or activity in the state or such contact or
activity imputable to that person is sufficient to support a personal judgment
against that person may be served with the summons and the 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.
SERVICE BY MAIL.
1.
Where service
cannot with due diligence be made personally within or outside the state,
service of the summons and complaint may be made by mail upon a person
described in subdivision (e) in the following cases:
a.
Where the person
to be served has an interest in, title to, or right to the possession of goods,
chattels, rights, credits, land, tenements, or hereditaments in the state which
has been or on pending motion may be attached or secured by trustee process in
the commencement of the action, or will be affected by a judgment in the
action;
b.
Where the person
to be served is one against whom a judgment for divorce or annulment of
marriage is sought. Such service shall be by delivery to the defendant outside the
state by registered or certified mail, with restricted delivery and return
receipt requested. Service by registered or certified mail under this paragraph
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 an affidavit setting forth the efforts made
to obtain personal service and 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 first class mail.
2.
When service may
be made upon an officer of the state as a statutory agent for the service of
process pursuant to paragraph (1), (7) or (8) of subdivision (d), service in
accordance with the applicable statute may be made by mailing a copy of the
summons and of the complaint by first class mail, postage prepaid, to the
officer. Such service shall be by delivery to the defendant outside the state
by registered or certified mail, with restricted delivery and return receipt
requested. 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 an
affidavit setting forth the efforts made to obtain personal service and 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 first class mail.
SERVICE BY PUBLICATION.
1.
When Service May
Be Made. At any time after the filing of the complaint, the court, on motion
upon a showing made by verified complaint or affidavit duly filed that service
cannot with due diligence be made by another prescribed method, shall order
service by publication when the person to be served is one described in
subdivision (e) of this rule, unless a statute provides another method of
notice.
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 places in issue the title or interest
of the defendant to any property, a description of any such property; and (iii)
the substance of the summons prescribed by subdivision (b) of this rule. The
order shall also direct its publication once a week and at least seven days
apart for 2 or more successive weeks in a designated newspaper or newspapers of
general circulation reasonably calculated to give notice to the defendant; and
the order shall also direct the mailing to the defendant, if an 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.
TERRITORIAL LIMITS OF EFFECTIVE
SERVICE.
All process may be served anywhere within the territorial limits
of the state.
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, with that person's fees, charges and mileage indorsed
thereon, 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. 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 delivered to the
officer for service was a true copy. If service is made by a person other than
a sheriff or deputy sheriff or a constable authorized by law, that person shall
make proof thereof by affidavit. Failure to make proof of service shall not
affect the validity of the service. The officer or other person serving the process
shall indorse the date of service upon the copy left with the defendant or
other person. Failure to indorse the date of service shall not affect the
validity of service.
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.
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 transmit the
summons 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 (i) 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.
WAIVER OF SERVICE; DUTY TO SAVE COSTS OF SERVICE;
REQUEST TO WAIVE.
1.
Objections Not
Waived. A defendant who waives service of a summons does not thereby waive any
objection to the venue or to the jurisdiction of the court over the person of
the defendant.
2.
Authorization;
Duty to Save Costs. When an action has been commenced by filing the complaint,
and the summons and complaint may be served within or without the state by
personal service under subdivisions (d) or (e) of this rule, notice may be
given as provided in this subdivision instead. However, notice may not be given
under this subdivision to an infant or incompetent person. A defendant who
receives notice of an action in the manner provided in this subdivision has a
duty to avoid unnecessary costs of serving the summons. To avoid costs, the
plaintiff may notify such a defendant of the commencement of the action and
request that the defendant waive service of a summons.
3.
Method. The notice
and request given under this subdivision
a.
shall be in
writing and shall be addressed directly to the defendant, if an individual, or
else to any other person authorized under subdivision (d) of this rule to
receive service of process on behalf of a defendant who is not an individual,
provided that notice may not be given hereunder to a public officer who is
designated by statute as an agent to receive service of process;
b.
shall be
dispatched through first class mail or other reliable means;
c.
shall be
accompanied by a copy of the complaint and shall identify the court in which it
has been filed;
d.
shall inform the
defendant, by means of a form conforming substantially to Forms 1B and 1C as
contained in the Appendix of Forms to these rules, of the consequences of
compliance and of a failure to comply with the request;
e.
shall set forth
the date on which the request is sent;
f.
shall allow the
defendant a reasonable time to return the waiver, which shall be at least 30
days from the date on which the request is sent, or 60 days from that date if
the defendant is addressed outside any state or territory of the United States;
and
g.
shall provide the
defendant with an extra copy of the notice and request, as well as a prepaid
means of compliance in writing. If a defendant located within any state or
territory of the United States fails to comply with a request for waiver made
by a plaintiff located within any state or territory of the United States, the
court shall impose the costs subsequently incurred in effecting service on the
defendant unless good cause for the failure be shown. 4. Effect of Waiver: Time for Answer. A defendant that, before
being served with process, timely returns a requested waiver signed and dated
personally or by a person to whom a notice and request may be addressed under
subparagraph (3)(A) is not required to serve an answer to the complaint until
60 days after the date on which the request for waiver of service was sent, or
90 days after that date if the defendant was addressed outside any state or
territory of the United States.5. Same:
Action to Proceed. When the plaintiff files a waiver of service with the court,
the action shall proceed, except as provided in paragraph (4), as if a summons
and complaint had been served at the time of filing the waiver, and no proof of
service shall be required. 6. Costs
for Failure to Waive. The costs to be imposed on a defendant under paragraph
(3) for failure to comply with a request to waive service of a summons shall
include the costs subsequently incurred in effecting service under subdivision
(d)-(g) or (k), together with the costs, including a reasonable attorney's fee,
of any motion required to collect the costs of service. Amended March 12, 1975,
eff. April 1, 1975; Oct. 30, 1979, eff. Dec. 3, 1979; Jan. 9, 1985; April 3,
1986; Nov. 25, 1986, eff. March 1, 1987. Amended Jan. 20, 1992, eff. March 2,
1992; Feb. 22, 1996, eff. July 1, 1996.
Rule 45. Subpoena
FORM; ISSUANCE.
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 subdivisions (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 may
issue from the court in any county.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, a notary
public, or a magistrate may also issue and sign a subpoena.
SERVICE.
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.
A subpoena may be
served at any place within the state.
3.
Proof of service
when necessary shall be made by filing with the clerk of the court for 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.
PROTECTION OF PERSONS SUBJECT TO
SUBPOENAS.
1.
A party or an
attorney responsible for the issuance and service of a subpoena shall take
reasonable steps to avoid imposing undue burden or expense on a person subject
to that subpoena. The court for which the subpoena was issued shall enforce
this duty and impose upon the party or attorney in breach of this duty an
appropriate sanction, which may include, but is not limited to, lost earnings
and a reasonable attorney's fee.
2.
(A) A person
commanded to produce and permit inspection and copying of designated books,
papers, documents or tangible things, or inspection of premises need not appear
in person at the place of production or inspection unless commanded to appear
for deposition, hearing or trial.(B) Subject to paragraph (d)(2) of this rule,
a person commanded to produce and permit inspection and copying may, within 14
days after service of the subpoena or before the time specified for compliance
if such time is less than 14 days after service, serve upon the party or
attorney designated in the subpoena written objection to inspection or copying
of any or all of the designated materials or of the premises. If objection is
made, the party serving the subpoena shall not be entitled to inspect and copy
the materials or inspect the premises except pursuant to an order of the court
for which the subpoena was issued. If objection has been made, the party
serving the subpoena may, upon notice to the person commanded to produce, move
at any time for an order to compel the production. Such an order to compel
production shall protect any person who is not a party or an officer of a party
from significant expense resulting from the inspection and copying commanded.
3.
On timely motion,
the court for which a subpoena was issued shall quash or modify the subpoena if
it i. fails to allow reasonable time
for compliance; ii. requires a resident
of this state to travel to attend a deposition more than 50 miles one way
unless the court otherwise orders; requires a nonresident of this state to
travel to attend a deposition at a place more than 50 miles from the place of
service unless another convenient place is fixed by order of court, or iii. requires disclosure of privileged or other
protected matter and no exception or waiver applies, or iv. subjects a person to undue burden.
4.
If a subpoena i. requires disclosure of a trade secret or
other confidential research, development, or commercial information, or ii. requires disclosure of an unretained
expert's opinion or information not describing specific events or occurrences
in dispute and resulting from the expert's study made not at the request of any
party, or iii. requires a person who is
not a party or an officer of a party to incur substantial expense to travel
more than 50 miles one way to attend trial, the court may, to protect a person
subject to or affected by the subpoena, quash or modify the subpoena or, if the
party in whose behalf the subpoena is issued shows a substantial need for the
testimony or material that cannot be otherwise met without undue hardship and
assures that the person to whom the subpoena is addressed will be reasonably
compensated, the court may order appearance or production only upon specified
conditions.
DUTIES IN RESPONDING TO
SUBPOENA.
1. A person responding
to a subpoena to produce documents shall produce them as they are kept in the
usual course of business or shall organize and label them to correspond with
the categories in the demand. 2. When
information subject to a subpoena is withheld on a claim that it is privileged
or subject to protection as trial preparation materials, the claim shall be
made expressly and shall be supported by a description of the nature of the
documents, communications, or things not produced that is sufficient to enable
the demanding party to contest the claim.
CONTEMPT.
Failure by any person
without adequate excuse to obey a subpoena served upon that person may be
deemed a contempt of the court for which the subpoena issued. Adequate excuse
for failure to obey exists when a subpoena purports to require a nonparty to
attend or produce at a place not within the limits provided by clause (ii) of
subparagraph (c)(3)(A). The provisions of 12 V.S.A. §§ 1623-1624 shall apply to
failure by any person without adequate excuse to obey a subpoena served upon
that person.
FAILURE TO APPEAR.
The provisions of 12 V.S.A. §§ 1623-1624 shall apply to failure by
any person without adequate excuse to obey a subpoena served upon that person.
Amended Dec. 28, 1981, eff. March 1, 1982. Amended Nov. 4, 1994, eff. March 1,
1995.
In Vermont, 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 Vermont Judicial System
Court website: http://www.vermontjudiciary.org/default.aspx
