Updated: Dec 13, 2018
A typical lawsuit consists of a plaintiff filing a complaint against a defendant. The defendant then replying to the plaintiff. The plaintiff replying back to the defendant. And so on, and so on. While there are hundreds and hundreds of issues that arise with civil procedure, let’s start at the very beginning: service.
Section II of the S.C. Rules of Civil Procedure essentially creates two methods of service for different items. Under Rule 4, the original summons and complaint must be personally served. While the rule lays out several different methods of how to personally serve, a common practice to serve is by using certified mail. SCRCP 4.
What happens after the original summons and complaint is filed and served, and now there are different motions and pleadings that need to be filed served? For all of these other papers, Rule 5 is used.
First, Rule 5 lists all of the papers in a civil action that must be served:(1) written orders; (2) pleadings subsequent to the original summons and complaint, which includes answers, counterclaims, cross claims, replies and amended complaints; (3) written motions, other than ones which may be heard ex parte; (4) written notices; (5) discovery requests and responses; (6) appearances; (7) demands; (8) offers of judgment; (9) designations of record or case;(10) grounds or exceptions on appeal; and (11) other similar papers
Second, Rule 5 states the methods of service for these papers:(1) Mailing a copy to the party or attorney; if address is unknown, then leaving a copy with the clerk of court. (if a party is represented by an attorney, then papers should usually be served on the attorney);(2) Handing it to the attorney or party;(3) Leaving it at his office with clerk or person in charge, or in a conspicuous place if no one is present;(4) If office is closed, or doesn’t have an office, then leaving it at his home with suitable person.
If a party is in default for failure to appear, then service of these papers is not necessary, except “pleadings asserting new or additional claims for relief against” the default party. Id. Pleadings that are asserting new or additional claims must be served in the same manner as Rule 4: personal service.
It makes sense that the rules don’t require a party to keep serving someone who has failed to appear when they are notified of a lawsuit. However, it isn’t fair to then let the party “run up the bill” without properly notifying the other party that they are now asking for more. See Stearns Bank Nat. Ass'n v. Glenwood Falls, LP, 373 S.C. 331, 337 (Ct. App. 2007) ("Although Rule 5(b), SCRCP, generally provides less stringent standards for serving pleadings subsequent to the original summons and complaint, Rule 5(a), SCRCP, requires service pursuant to Rule 4 when a party makes new or additional claims against another party that has been held in default for failure to appear."). See also Varnes v. Local 91, Glass Bottle Blowers Ass'n of U.S. & Canada, 674 F.2d 1365, 1368 (11th Cir. 1982) ("Rule 4, and Rule 5(a) as it applies to parties in default for failure to appear, reflect a policy that a defendant should receive notice of all claims for relief upon which a court may enter judgment against him. Formal personal service impresses upon a defendant that judicial process has been invoked to effect a coercive remedy against him. Whether the notice be that an action has commenced or that the moving party has added a new or additional claim for relief against a party in default for failure to appear, the need for notice is the same.").
Don’t forget that the party has to file a copy of his papers with the court:
For all other papers: the party must serve the opposing party with the paper, and then within 5 days, file a copy with the court.
For original summons and complaint: the party must file with the court, serve the party, and then within 10 days, file a proof of service with the court.
Several counties in S.C. are now using the e-filing system. If your county participates, then e-filing satisfies Rule 5(e), SCRCP. Many attorneys in S.C. use “certificate of service” for papers other than the summons and complaint, but is that necessary? See this blog post by attorney Gregory Forman for his thoughts. Service is just the first step of a marathon when it comes to civil actions.
Civil Procedure Rules: