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Massachusetts Domestic Relations Procedure Rule 4: Process

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(a) Summons: Issuance. Upon commencing the action the plaintiff or his attorney shall deliver a copy of the complaint and a summons for service to the sheriff, deputy sheriff, or special sheriff; any other person duly authorized by law; a person specifically appointed to serve them; or as otherwise provided in subdivision (c) of this rule. Upon request of the plaintiff separate or additional summons shall issue against any defendant. The summons may be procured in blank from the clerk, and shall be filled in by the plaintiff or the plaintiff's attorney in accordance with Rule 4(b). Identical to Mass.R.Civ.P. Rule 4(a).

(b) Same: Form. The summons shall bear the signature or facsimile signature of the clerk; be under the seal of the court; be in the name of the Commonwealth of Massachusetts; bear teste of the first justice of the court to which it shall be returnable who is not a party; 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 may be rendered against him for the relief demanded in the complaint. Identical to Mass.R.Civ.P. Rule 4(b).

(c) By Whom Served. Except as otherwise permitted by paragraph (h) of this rule, service of all process shall be made by a sheriff, by his deputy, or by a special sheriff; by any other disinterested person; by any other person duly authorized by law; by some person specially appointed by the court for that purpose; or in the case of service of process outside the Commonwealth, by an individual permitted to make service of process under the law of this Commonwealth or under the law of the place in which the service is to be made, or who is designated by a court of this Commonwealth. A subpoena may be served as provided in Rule 45. Notwithstanding the provisions of this paragraph (c), wherever in these rules service is permitted to be made by certified or registered mail, the mailing may be accomplished by the party or his attorney.

(d) Summons: Personal Service Within the Commonwealth. The summons and a copy of the complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:

(1) The defendant, whether within or without the Commonwealth, may accept personal service by written endorsement of his duly notarized acceptance of service on the summons or other process. In the event that service is not so accepted, service shall be made as set forth hereafter:

(2) Upon an individual by delivering a copy of the summons and of the complaint to him personally.

In complaints seeking establishment of paternity or for support of a child born out of wedlock, complaints for support of a spouse or child under Chapter 209, § 32F, for actions under Chapter 209D, for contempt and complaints for modification only, upon an individual:

(i) by delivering a copy of the summons and complaint to him personally, or

(ii) by leaving a copy of the summons and complaint at his last and usual place of abode and by mailing copies thereof to the defendant. Notice under this subsection shall be proved by affidavit containing a particular statement thereof.

(3) If the person authorized to serve process makes return that after diligent search he cannot find the defendant, or if it appears that a defendant resides outside of the Commonwealth or is of parts unknown, the court may on application of the plaintiff issue an order of notice in the manner and form prescribed by law.

(4) If personal service shall not be made as aforesaid, such notice in the form ordered by the court shall be served by publishing a copy of the said notice once in some newspaper designated by the Register or the court and by mailing a copy of such notice by registered or certified mail, if practicable, to the defendant at his last known address. The defendant shall file his answer or other responsive pleading within the time periods allowed under these rules computed as if the date of publication were the date on which personal service was made.

(5) Service of publication and mailing shall be proved by affidavit containing a particular statement thereof, accompanied by a copy of the advertisement (or tear sheet) of the newspaper containing the publication and, if practicable, by the return receipt showing receipt of a copy sent by registered or certified mail.

(6) The court shall require proof of actual notice when practicable. If such notice is not shown to have been received by the defendant, the complaint shall not be assigned for hearing until the expiration of three months after the publication date, date of service at a last and usual place of abode, or date of a mailing to the last known address of the defendant if such service has been ordered by the court. Nothing in this rule shall prevent hearing of a motion for temporary orders or issuance of temporary orders prior to the expiration of three months, provided notice of the motion and hearing has been mailed to the defendant's last and usual place of abode in accordance with Rules 5 and 6.

(e) Same. Personal Service Outside the Commonwealth. When any statute or law of the Commonwealth authorizes service of process outside the Commonwealth, the service shall be made by delivering a copy of the summons and of the complaint: (1) in any appropriate manner prescribed in subdivision (d) of this Rule; or (2) in the manner prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction; or (3) by any form of mail addressed to the person to be served and requiring a signed receipt; or (4) as directed by the appropriate foreign authority in response to a letter rogatory; or (5) as directed by order of the court. Identical to Mass.R.Civ.P.Rule 4(e).

(f) Return. The person serving the process shall make proof of service thereof in writing to the court promptly and in any event within the time during which the person served must respond to the process. The person making return of service shall state in his return of service that a copy of the summons and complaint was delivered by him in hand to the defendant and shall further state the date on which and the place where such service was made. If service is made by a person other than a sheriff, deputy sheriff, or special sheriff, he shall make affidavit thereof. Proof of service outside the Commonwealth may be made by affidavit of the individual who made the service or in the manner prescribed by the law of the Commonwealth, or the law of the place in which the service is made for proof of service in an action in any of its courts of general jurisdiction. When service is made by mail, proof of service shall include a receipt signed by the addressee or such other evidence of personal delivery to the addressee as may be satisfactory to the court. 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. Identical to Mass.R.Civ.P. 4(g).

(h) Certain Actions in Probate Courts: Service. Notwithstanding any other provision of these rules, in actions in the Probate Courts in the nature of petitions for instructions or for the allowance of accounts, service may be made in accordance with G.L. c. 215, § 46, in such manner and form as the court may order. Identical to Mass.R.Civ.P. 4(h).

(i) Deleted.

(j) Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 90 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. Identical to Mass.R.Civ.P. 4(j).

As amended April 1, 2009 effective May 1, 2009.

Reporter's Notes (2009). Rule 4(d)(4) was amended to reduce the number of times notice must be published. This change is consistent with the probate rule requirement and will be more cost effective for litigants.