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Vermont Rules of Civil Procedure
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Rules of Civil Procedure in Vermont:
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:
- 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:
- 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.
- 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.
- 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.
- Upon a county, by delivering
a copy of the summons and of the
complaint to the county clerk or
the county treasurer.
- Upon a town, by delivering a
copy of the summons and of the
complaint to the clerk,
treasurer, manager, or one of
the selectmen.
- Upon a city, by delivering a
copy of the summons and of the
complaint to the clerk,
treasurer, or manager.
- 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.
- 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.
- 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.
- 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:
- 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;
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Method. The notice and
request given under this
subdivision
- 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;
- shall be dispatched
through first class mail or
other reliable means;
- shall be accompanied by
a copy of the complaint and
shall identify the court in
which it has been filed;
- 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;
- shall set forth the date
on which the request is
sent;
- 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
- 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.
- 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.
- 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.
- 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.
- Every subpoena shall
- state the name of the
court from which it is
issued; and
- state the title of the
action, the name of the
court in which it is
pending, and its civil
action number; and
- 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
- 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.
- A subpoena may issue from
the court in any county.
- 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.
- 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).
- A subpoena may be served at
any place within the state.
- 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.
- 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.
- (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.
- On timely motion, the court
for which a subpoena was issued
shall quash or modify the
subpoena if it
- fails to allow
reasonable time for
compliance;
- 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
- requires disclosure of
privileged or other
protected matter and no
exception or waiver applies,
or
- subjects a person to
undue burden.
- If a subpoena
- requires disclosure of a
trade secret or other
confidential research,
development, or commercial
information, or
- 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
- 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.
- 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.
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.
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