Mississippi Rules of Civil Procedure
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Rules of Civil Procedure in
Mississippi:
Rule
4. Summons
Summons: Issuance.
Upon filing of the complaint, the
clerk shall forthwith issue a
summons.
- At the written election of
the plaintiff or the plaintiff's
attorney, the clerk shall:
- 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.
- 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.
- Make service by
publication under
subparagraph (c)(4) of this
rule.
- 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.
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.
Service:
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.
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.
By Mail.
- 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.
- 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.
- 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.
- The notice and
acknowledgment of receipt of
summons and complaint shall be
executed under oath or
affirmation.
By Publication.
- 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.
- 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.
- 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.
- 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.
- 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.
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."
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:
- Upon an individual other
than an unmarried infant or a
mentally incompetent person,
- 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.
- (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.
- 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.
- 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.
- 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.
- Upon a county by delivering
a copy of the summons and
complaint to the president or
clerk of the board of
supervisors.
- Upon a municipal corporation
by delivering a copy of the
summons and complaint to the
mayor or municipal clerk of said
municipal corporation.
- 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.
Waiver.
Any party defendant who is not an
unmarried minor, mentally
incompetent, or convict of felony
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.
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.
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.
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.
Rule
45. Subpoena
Form; Issuance.
- 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.
- 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.
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.
Service.
- 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.
- 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.
Protection of Persons Subject
to Subpoenas.
- In General.
- 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.
- 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.
- Subpoenas for
Production or Inspection.
- 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).
- 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.
- 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.
Duties in Responding to
Subpoena.
- 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.
- 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.
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.
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.
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