MISSISSIPPI RULES OF CIVIL PROCEDURE
In the state of
Mississippi, no process server license is required. A server must be any individual who, is not a party and is at
least eighteen years old. A summons and
complaint served by process server cannot be an amount exceeding what is
statutorily allowed to the sheriff or service of process may be taxed as
recoverable costs in the action.
Table of Contents
RULE 4. SUMMONS
(c) Service:
RULE 45. SUBPOENA
(a) Form; Issuance.
(c) Service.
(1) In General.
(2) Subpoenas for Production or
Inspection.
(e) Duties in Responding to Subpoena.
(a)
Summons: Issuance. Upon filing of the complaint,
the clerk shall forthwith issue a summons.
(1) At the written election of the
plaintiff or the plaintiff's attorney, the clerk shall:
(A) Deliver the summons to the
plaintiff or plaintiff's attorney for service under subparagraphs (c)(1) or
(c)(3) or (c)(4) or (c)(5) of this rule.
(B) Deliver the summons to the sheriff
of the county in which the defendant resides or is found for service under
subparagraph (c)(2) of this rule.
(C) Make service by publication under
subparagraph (c)(4) of this rule.
(2) The person to whom the summons is
delivered shall be responsible for prompt service of the summons and a copy of
the complaint. Upon request of the plaintiff, separate or additional summons
shall issue against any defendants.
(b) Same:
Form. The summons shall be dated and 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 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, except where service is made by publication, may contain, in lieu of
the names of all parties, the name of the first party on each side and the name
and address of the party to be served. Summons served by process server shall
substantially conform to Form 1A. Summons served by sheriff shall substantially
conform to Form 1AA.
(1) By Process Server. A summons and complaint shall,
except as provided in subparagraphs (2) and (4) of this subdivision, be served
by any person who is not a party and is not less than 18 years of age. When a
summons and complaint are served by process server, an amount not exceeding
that statutorily allowed to the sheriff for service of process may be taxed as
recoverable costs in the action.
(2) By Sheriff. A summons and complaint shall, at
the written request of a party seeking service or such party's attorney, be
served by the sheriff of the county in which the defendant resides or is found,
in any manner prescribed by subdivision (d) of this rule. The sheriff shall
mark on all summons the date of the receipt by him, and within thirty days of
the date of such receipt of the summons the sheriff shall return the same to
the clerk of the court from which it was issued.
(3) By Mail.
(A) A summons and complaint may be
served upon a defendant of any class referred to in paragraph (1) or (4) of
subdivision (d) of this rule by mailing a copy of the summons and of the
complaint (by first-class mail, postage prepaid) to the person to be served,
together with two copies of a notice and acknowledgment conforming
substantially to Form 1-B and a return envelope, postage prepaid, addressed to
the sender.
(B) If no acknowledgment of service under
this subdivision of this rule is received by the sender within 20 days after
the date of mailing, service of such summons and complaint may be made in any
other manner permitted by this rule.
(C) Unless good cause is shown for not
doing so, the court shall order the payment of the costs of 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.
(D) The notice and acknowledgment of
receipt of summons and complaint shall be executed under oath or affirmation.
(4)
By Publication.
(A) If the defendant in any proceeding
in a chancery court, or in any proceeding in any other court where process by
publication is authorized by statute, be shown by sworn complaint or sworn
petition, or by a filed affidavit, to be a nonresident of this state or not to
be found therein on diligent inquiry and the post office address of such
defendant be stated in the complaint, petition, or affidavit, or if it be
stated in such sworn complaint or petition that the post office address of the
defendant is not known to the plaintiff or petitioner after diligent inquiry,
or if the affidavit be made by another for the plaintiff or petitioner, that
such post office address is unknown to the affiant after diligent inquiry and
he believes it is unknown to the plaintiff or petitioner after diligent inquiry
by the plaintiff or petitioner, the clerk, upon filing the complaint or
petition, account or other commencement of a proceeding, shall promptly prepare
and publish a summons to the defendant to appear and defend the suit. The
summons shall be substantially in the form set forth in Form 1-C.
(B) The publication of said summons shall
be made once in each week during three successive weeks in a public newspaper
of the county in which the complaint or petition, account, cause or other
proceeding is pending if there be such a newspaper, and where there is no
newspaper in the county the notice shall be posted at the courthouse door of
the county and published as above provided in a public newspaper in an
adjoining county or at the seat of government of the state. Upon completion of
publication, proof of the prescribed publication shall be filed in the papers
in the cause. The defendant shall have thirty (30) days from the date of first
publication in which to appear and defend. Where the post office address of a
defendant is given, the street address, if any, shall also be stated unless the
complaint, petition, or affidavit above mentioned, avers that after diligent
search and inquiry said street address cannot be ascertained.
(C) It shall be the duty of the clerk
to hand the summons to the plaintiff or petitioner to be published, or, at his
request, and at his expense, to hand it to the publisher of the proper
newspaper for publication. Where the post office address of the absent
defendant is stated, it shall be the duty of the clerk to send by mail (first
class mail, postage prepaid) to the address of the defendant, at his post
office, a copy of the summons and complaint and to note the fact of issuing the
same and mailing the copy, on the general docket, and this shall be the
evidence of the summons having been mailed to the defendant.
(D) When unknown heirs are made
parties defendant in any proceeding in the chancery court, upon affidavit that
the names of such heirs are unknown, the plaintiff may have publication of
summons for them and such proceedings shall be thereupon in all respects as are
authorized in the case of a nonresident defendant. When the parties in interest
are unknown, and affidavit of that fact be filed, they may be made parties by
publication to them as unknown parties in interest.
(E) Where summons by publication is
upon any unmarried infant, mentally incompetent person, or other person who by
reason of advanced age, physical incapacity or mental weakness is incapable of
managing his own estate, summons shall also be had upon such other person as
shall be required to receive a copy of the summons under paragraph (2) of
subdivision (d) of this rule.
(5) Service
by Certified Mail on Person Outside State. In addition to service by any
other method provided by this rule, a summons may be served on a person outside
this state by sending a copy of the summons and of the complaint to the person
to be served by certified mail, return receipt requested. Where the defendant
is a natural person, the envelope containing the summons and complaint shall be
marked "restricted delivery." Service by this method shall be deemed
complete as of the date of delivery as evidenced by the return receipt or by
the returned envelope marked "Refused."
(d) Summons and Complaint: Person to Be Served. The summons and
complaint shall be served together. Service by sheriff or process server shall
be made as follows:
(1) Upon an individual other than an
unmarried infant or a mentally incompetent person,
(A) by delivering a copy of the
summons and of the complaint to him personally or to an agent authorized by
appointment or by law to receive service of process; or
(B) if service under subparagraph
(1)(A) of this subdivision cannot be made with reasonable diligence, by leaving
a copy of the summons and complaint at the defendant's usual place of abode with
the defendant's spouse or some other person of the defendant's family above the
age of sixteen years who is willing to receive service, and by thereafter
mailing a copy of the summons and complaint (by first class mail, postage
prepaid) to the person to be served at the place where a copy of the summons
and of the complaint were left. Service of a summons in this manner is deemed
complete on the 10th day after such mailing.
(2) (A) upon an unmarried infant by
delivering a copy of the summons and complaint to any one of the following: the
infant's mother, father, legal guardian (of either the person or the estate),
or the person having care of such infant or with whom he lives, and if the
infant be 12 years of age or older, by delivering a copy of the summons and
complaint to both the infant and the appropriate person as designated above.
(B) upon a mentally incompetent person
who is not judicially confined to an institution for the mentally ill or
mentally deficient or upon any other person who by reason of advanced age,
physical incapacity or mental weakness is incapable of managing his own estate
by delivering a copy of the summons and complaint to such person and by
delivering copies to his guardian (of either the person or the estate) or
conservator (of either the person or the estate) but if such person has no
guardian or conservator, then by delivering copies to him and copies to a
person with whom he lives or to a person who cares for him.
(C) upon a mentally incompetent person
who is judicially confined in an institution for the mentally ill or mentally
retarded by delivering a copy of the summons and complaint to the incompetent
person and by delivering copies to said incompetent's guardian (of either the
person or the estate) if any he has. If the superintendent of said institution
or similar official or person shall certify by certificate endorsed on or
attached to the summons that said incompetent is mentally incapable of
responding to process, service of summons and complaint on such incompetent shall
not be required. Where said confined incompetent has neither guardian nor
conservator, the court shall appoint a guardian ad litem for said incompetent
to whom copies shall be delivered.
(D) where service of a summons is
required under (A), (B) and (C) of this subparagraph to be made upon a person
other than the infant, incompetent, or incapable defendant and such person is a
plaintiff in the action or has an interest therein adverse to that of said
defendant, then such person shall be deemed not to exist for the purpose of
service and the requirement of service in (A), (B) and (C) of this subparagraph
shall not be met by service upon such person.
(E) if none of the persons required to
be served in (A) and (B) above exist other than the infant, incompetent or
incapable defendant, then the court shall appoint a guardian ad litem for an
infant defendant under the age of 12 years and may appoint a guardian ad litem
for such other defendant to whom a copy of the summons and complaint shall be
delivered. Delivery of a copy of the summons and complaint to such guardian ad
litem shall not dispense with delivery of copies to the infant, incompetent or
incapable defendant where specifically required in (A), and (B) of this
subparagraph.
(3) Upon an individual confined to a
penal institution of this state or of a subdivision of this state by delivering
a copy of the summons and complaint to the individual, except that when the
individual to be served is an unmarried infant or mentally incompetent person
the provisions of subparagraph (d)(2) of this rule shall be followed.
(4) Upon a domestic or foreign
corporation or upon a partnership or other unincorporated association which is
subject to suit under a common name, by delivering a copy of the summons and of
the complaint to an officer, a managing or general agent, or to any other agent
authorized by appointment or by law to receive service of process.
(5) Upon the State of Mississippi or
any one of its departments, officers or institutions, by delivering a copy of
the summons and complaint to the Attorney General of the State of Mississippi.
(6) Upon a county by delivering a copy
of the summons and complaint to the president or clerk of the board of
supervisors.
(7) Upon a municipal corporation by
delivering a copy of the summons and complaint to the mayor or municipal clerk
of said municipal corporation.
(8) Upon any governmental entity not
mentioned above, by delivering a copy of the summons and complaint to 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.
(e) Waiver. Any party defendant who is not an unmarried minor or mentally
incompetent may, without filing any pleading therein, waive the service of
process or enter his or her appearance, either or both, in any action, with the
same effect as if he or she had been duly served with process, in the manner
required by law on the day of the date thereof. Such waiver of service or entry
of appearance shall be in writing dated and signed by the defendant and duly
sworn to or acknowledged by him or her, or his or her signature thereto be
proven by two (2) subscribing witnesses before some officer authorized to
administer oaths. Any guardian or conservator may likewise waive process on
himself and/or his ward, and any executor, administrator, or trustee may
likewise waive process on himself in his fiduciary capacity. However, such
written waiver of service or entry of appearance must be executed after the day
on which the action was commenced and be filed among the papers in the cause
and noted on the general docket.
(f) Return. The person serving the process shall make proof of service
thereof to the court promptly. If service is made by a person other than a
sheriff, such person shall make affidavit thereof. If service is made under
paragraph (c)(3) of this rule, return shall be made by the sender's filing with
the court the acknowledgment received pursuant to such subdivision. If service
is made under paragraph (c)(5) of this rule, the return shall be made by the
sender's filing with the court the return receipt or the returned envelope
marked "Refused." Failure to make proof of service does not affect
the validity of the service.
(g)
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 is issued.
(h)
Summons: Time Limit for Service. If a service of
the summons and complaint is not made upon a defendant within 120 days 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.
(1) Every subpoena shall be issued by
the clerk under the seal of the court, shall state the name of the court and the
title of the action, and shall 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. The clerk shall issue a subpoena signed and sealed,
but otherwise in blank, to a party requesting it, who shall fill it in before
service. A command to produce 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) Subpoenas for attendance at a
trial or hearing, for attendance at a deposition, and for production or
inspection shall issue from the court in which the action is pending. In the
case of a deposition to be taken in foreign litigation the subpoena shall be
issued by a clerk of a court for the county in which the deposition is to be
taken.
(b) Place
of Examination. A resident of the State of Mississippi
may be required to attend a deposition, production or inspection only in the
county wherein he resides or is employed or transacts his business in person,
or at such other convenient place as is fixed by an order of the court. A
non-resident of this state subpoenaed within this state may be required to
attend only in the county wherein he is served, or at such other convenient
place as is fixed by an order of the court.
(1) A subpoena may be served by a
sheriff, or by his deputy, or by any other person who is not a party and is not
less than 18 years of age, and his return endorsed thereon shall be prima facie
proof of service, or the person served may acknowledge service in writing on
the subpoena. Service of the subpoena shall be executed upon the witness
personally. Except when excused by the court upon a showing of indigence, the
party causing the subpoena to issue shall tender to a non-party witness at the
time of service the fee for one day's attendance plus mileage allowed by law.
When the subpoena is issued on behalf of the State of Mississippi or an officer
or agency thereof, fees and mileage need not be tendered in advance.
(2) Proof of service shall be made by
filing with the clerk of the court from which the subpoena was issued a
statement, certified by the person who made the service, setting forth the date
and manner of service, the county in which it was served, the names of the
persons served, and the name, address and telephone number of the person making
the service.
(d)
Protection of Persons Subject to Subpoenas.
(A) On timely
motion, the court by which a subpoena was issued shall quash or modify the
subpoena if it (i) fails to allow reasonable time for compliance; (ii) requires
disclosure of privileged or other protected matter and no exception or waiver
applies, (iii) designates an improper place for examination, or (iv) subjects a
person to undue burden or expense.
(B) 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, the court may order appearance or production only upon
specified conditions.
(A) A person
commanded to produce and permit inspection and copying of designated books,
papers, documents or tangible things, or to permit inspection of premises need
not appear in person at the place of production or inspection unless commanded
by the subpoena to appear for deposition, hearing or trial. Unless for good cause shown the
court shortens the time, a subpoena for production or inspection shall allow
not less than ten days for the person upon whom it is served to comply with the
subpoena. A copy of all such subpoenas shall be served immediately upon each
party in accordance with Rule 5. A subpoena commanding production or inspection
will be subject to the provisions of Rule 26(d).
(B) The person to
whom the subpoena is directed may, within ten days after the service thereof or
on or before the time specified in the subpoena for compliance, if such time is
less than ten days after service, serve upon the party serving the subpoena
written objection to inspection or copying of any or all of the designated
materials, or to inspection of the premises. If objection is made, the party
serving the subpoena shall not be entitled to inspect and copy the material
except pursuant to an order of the court from which the subpoena was issued.
The party serving the subpoena may, if objection has been made, move at any
time upon notice to the person served for an order to compel the production or
inspection.
(C) The court,
upon motion made promptly and in any event at or before the time specified in
the subpoena for compliance therewith, may (i) quash or modify the subpoena if
it is unreasonable or oppressive, or (ii) condition the denial of the motion
upon the advance by the person in whose behalf the subpoena is issued of the
reasonable cost of producing the books, papers, documents, or tangible things.
(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.
(f) Sanctions. On motion of a party or of the person upon whom a subpoena for the
production of books, papers, documents, or tangible things is served and upon a
showing that the subpoena power is being exercised in bad faith or in such manner
as unreasonably to annoy, embarrass, or oppress the party or the person upon
whom the subpoena is served, the court in which the action is pending shall
order that the subpoena be quashed and may enter such further orders as justice
may require to curb abuses of the powers granted under this rule. To this end,
the court may impose an appropriate sanction.
(g) Contempt. Failure by any person without
adequate excuse to obey a subpoena served upon him may be deemed a contempt of
the court from which the subpoena issued.
In Mississippi, 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 Mississippi Judicial System
Court website: http://www.mississippi.gov
