What Is A Motion To Exten Summons And Allow For Substituted Service Filed In Circuit Court Mean?

Table of Contents Total Table of Contents

1. Commencement of action
2. Summons
   1. Service of other process
3. Service and filing of pleadings and other papers
4. Time

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Ii. Commencement of Activity; Service of Process, Pleadings, Motions and Orders

Kickoff of action

1. Complaint. — A civil action is commenced past filing a complaint with the court. For a complaint naming more than than i private plaintiff non related by spousal relationship, a derivative or fiduciary relationship, each plaintiff shall be assigned a separate civil action number and be docketed as a separate civil action and exist charged a separate fee by the clerk of a circuit court.
2. Civil instance data statement. — Every complaint shall be accompanied by a completed civil case data statement in the form prescribed by the Supreme Courtroom of Appeals.
3. Divorce complaints. — Every divorce complaint involving spousal back up, child support, child custody, or child visitation shall be accompanied by an awarding for services pursuant to Title IV-D of the Social Security Act and no hearing shall be conducted, except upon motion for emergency temporary relief, until an application for services pursuant to Title IV-D of the Social Security Act has been filed.

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Dominion days abolished

[Abrogated]

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Summons

1. Form. — The summons shall be signed by the clerk, deport the seal of the court, identify the courtroom and the parties, be directed to the defendant, and state the name and address of the plaintiff's attorney or, if unrepresented, of the plaintiff. Information technology shall also state the time within which the defendant must appear and defend, and notify the accused that failure to do so will result in a judgment by default confronting the defendant for the relief demanded in the complaint. The courtroom may allow a summons to be amended.
2. Issuance. — Upon the filing of the complaint, the clerk shall forthwith issue a summons to be served every bit directed past the plaintiff. A summons, or a re-create of the summons if addressed to multiple defendants, shall be issued for each defendant to be served.
3. Service with complaint; by whom fabricated. —
   1. A summons shall be served together with a copy of the complaint. The plaintiff is responsible for directing the clerk in the fashion of service of the summons and complaint within the time allowed under subdivision (grand).
   2. Service may be effected past whatsoever person who is not a party and who is at to the lowest degree xviii years of age.
   3. At the request of the plaintiff and upon payment of the applicable fees and costs of service, the clerk shall:
      1. Deliver the summons and complaint to the sheriff for service as directed by the plaintiff; or
      2. Make service past either certified postal service or by the first form post as directed by plaintiff; or
      3. Forward a copy of the summons and complaint to the Secretary of State, as statutory attorney-in-fact, for service as specified by any applicable statute.
4. Manner of service. — Personal or substituted service shall be made in the following way:
   1. Individuals. — Service upon an private other than an infant, incompetent person, or convict may be made by:
      1. Delivering a re-create of the summons and complaint to the individual personally; or
      2. Delivering a copy of the summons and complaint at the individual's dwelling house identify or usual identify of dwelling house to a fellow member of the individual'due south family who is above the age of 16 (16) years and by advising such person of the purport of the summons and complaint; or
      3. Delivering a copy of the summons and complaint to an amanuensis or attorney-in-fact authorized by appointment or statute to receive or accept service of the summons and complaint in the individual'due south behalf; or
      4. The clerk sending a copy of the summons and complaint to the individual to be served by certified postal service, render receipt requested, and commitment restricted to the addressee; or
      5. The clerk sending a re-create of the summons and complaint by start course mail, postage prepaid, to the person to be served, together with ii copies of a notice and acknowledgment conforming substantially to Grade 14 and a render envelope, postage prepaid, addressed to the clerk.

         The plaintiff shall furnish the person making service with such copies of the complaint or club as are necessary and shall accelerate the costs of service. For service by certified mail, the plaintiff shall pay to the clerk a fee of twenty dollars for each complaint to be served. For service by offset class post, the plaintiff shall pay to the clerk a fee of 5 dollars for each complaint to be served.

         Service pursuant to subdivision (d)(1)(D) shall not be the basis for the entry of a default or a judgment by default unless the tape contains a render receipt showing acceptance by the defendant or a return envelope showing refusal of the registered or certified mail by the accused. If commitment of the summons and complaint pursuant to subdivision (d)(1)(D) is refused, the clerk, promptly upon receipt of the notice of such refusal, shall mail to the defendant, by showtime form mail, postage stamp prepaid, a copy of the summons and complaint and a notice that despite such refusal, the case will proceed and that judgment by default will be rendered against the defendant unless the defendant appears to defend the adapt. Whatever such default or judgment by default shall exist set aside pursuant to Dominion 55(c) or Rule 60(b) if the defendant demonstrates to the court that the return receipt was signed past or delivery was refused by an unauthorized person. The notice and acknowledgment of receipt of the summons and complaint pursuant to subdivision (d)(1)(E) shall exist executed in the manner prescribed on Class 14. Unless good cause is shown for failure to complete and return the notice and acknowledgment of receipt of summons and complaint pursuant to subdivision (d)(1)(Due east) inside twenty (20) days after mailing, the court may club the payment of cost of personal service by the person served. Service pursuant to subdivision (d)(1)(Eastward) shall not exist the ground for entry of default or a judgment by default unless the record contains a observe and acknowledgment of receipt of the summons and complaint. If no acknowledgment of service pursuant to subdivision (d)(1)(E) is received by the clerk within twenty (twenty) days afterward the engagement of mailing, service of such summons and complaint shall be made nether subdivisions (d)(1)(A), (B), (C), or (D).

   2. Infants and incompetents under fourteen years. — Upon an infant or incompetent younger than 14 years of age, by delivering a copy of the summons and complaint to the infant's or incompetent's guardian or conservator resident in the Land; or, if there exist no such guardian or conservator, so to either the baby's or incompetent's male parent or mother if they be found. If at that place is no such guardian or conservator and if the male parent or mother cannot exist constitute, service of the summons and complaint shall exist made upon a guardian ad litem appointed under Rule 17(c). Just if any of the persons upon whom service is directed to be made by this paragraph is a plaintiff, then service shall exist upon the person who stands first in the order named in this paragraph who is not a plaintiff.
   3. Infants and incompetents 14 years or older. — Upon an babe or incompetent xiv years of historic period or older, by making service as provided in paragraph (2) to a higher place, and in addition past making service upon the infant or incompetent equally provided in paragraph (ane) to a higher place.
   4. Convicts. — Upon a person bars in the penitentiary of this or any other state, or of the Usa, by delivering a copy of the summons and complaint to that person's committee, guardian, or like fiduciary resident in the State; or, if there be no such commission, guardian, or like fiduciary, or if the committee, guardian, or like fiduciary is a plaintiff, service of process shall be made upon a guardian ad litem appointed nether Rule 17(c).
   5. Domestic individual corporations. — Upon a domestic individual corporation,
      1. past delivering or mailing in accord with paragraph (1) to a higher place a copy of the summons and complaint to an officer, director, or trustee thereof; or, if no such officer, manager, or trustee be found, by delivering a copy thereof to any agent of the corporation including, in the instance of a railroad visitor, a depot or station amanuensis in the bodily employment of the company; but excluding, in the case of an insurance company, a local or soliciting agent; or
      2. by delivering or mailing in accordance with paragraph (1) above a copy thereof to whatever agent or chaser in fact authorized by appointment or by statute to receive or accept service in its behalf.
   6. Domestic public corporations. —
      1. Upon a city, town, or village, by delivering or mailing in accord with paragraph (i) above a re-create of the summons and complaint to its mayor, city manager, recorder, clerk, treasurer, or any member of its council or board of commissioners;
      2. Upon a canton commission of whatsoever county or other tribunal created to transact county concern, by delivering or mailing in accordance with paragraph (one) above a copy of the summons and complaint to any commissioner or the clerk thereof or, if they be absent, to the prosecuting attorney of the county;
      3. Upon a lath of education, past delivering or mailing in accordance with paragraph (ane) in a higher place a copy of the summons and complaint to the president or any member thereof or, if they be absent-minded, to the prosecuting chaser of the canton;
      4. Upon whatsoever other domestic public corporation, (i) past delivering or mailing in accord with paragraph (ane) above a copy of the summons and complaint to any officer, director, or governor thereof, or (ii) past delivering or mailing in accord with paragraph (1) above a copy thereof to an amanuensis or attorney in fact authorized by appointment or past statute to receive or accept service in its behalf.
   7. Foreign corporations and business trusts qualified to do business. — Upon a foreign corporation, including a business trust, which has qualified to do business in the Land, past delivering or mailing in accordance with paragraph (ane) above a copy of the summons and complaint as provided in Dominion 4(d)(five).
   8. Foreign corporations and business trusts non qualified to practise business organization. — Upon a strange corporation, including a business concern trust, which has not qualified to do business concern in the Country,
      1. by delivering or mailing in accordance with paragraph (1) above a copy of the summons and complaint to any officer, director, trustee, or agent of such corporation; or
      2. by delivering or mailing in accordance with paragraph (1) above copies thereof to any agent or attorney in fact authorized by appointment or by statute to receive or accept service in its behalf.
   9. Unincorporated associations. — Upon an unincorporated association which is subject to suit under a mutual name, past delivering a re-create of the summons and complaint to any officer, director, or governor thereof, or past delivering or mailing in accord with paragraph (i) higher up a re-create of the summons and complaint to any agent or chaser in fact authorized by appointment or by statute to receive or have service in its behalf; or, if no such officer, director, governor, or appointed or statutory agent or attorney in fact be plant, then by delivering or mailing in accord with paragraph (1) above a copy of the summons and complaint to whatsoever member of such clan and publishing notice of the pendency of such activity once a week for two successive weeks in the newspaper of general circulation in the county wherein such action is pending. Proof of publication of such observe is made past filing the publisher's certificate of publication with the court.
5. Constructive service. —
   1. Service past publication. — If the plaintiff shall file with the court an affidavit:
      1. That the defendant is a foreign corporation or business trust for which no officer, managing director, trustee, agent, or appointed or statutory agent or attorney in fact is found in the Country upon whom service may be had; or
      2. That the defendant is a nonresident of the State for whom no agent, or appointed or statutory amanuensis or attorney in fact is found in the State upon whom service may be had; or
      3. That the plaintiff has used due diligence to ascertain the residence or whereabouts of the defendant, without effect; or
      4. That procedure, delivered to the sheriff of the county in which the defendant resides or is, has twice been delivered to such officer and has been returned without being executed; or
      5. That at that place are or may exist persons, other than those named in the complaint every bit plaintiff and defendant, interested in the subject matter of the action, whose names are unknown to the plaintiff and who are made defendants by the general description of unknown defendants; then clerk shall enter an order of publication against such named and unknown defendants. Every order of publication shall state the title of the action; the object thereof; the name and address of the plaintiff's chaser, if any; that a copy of the complaint may be obtained from the clerk; and that each named and unknown defendant must announced and defend on or earlier a date prepare forth in the society, which shall be not fewer than 30 days subsequently the beginning publication thereof; otherwise, that judgment by default will exist rendered against the defendants at any time thereafter. Every such order of publication shall be published once a calendar week for two successive weeks (or for such period equally may exist prescribed by statute, whichever period is longer) in a paper of general circulation in the county wherein such action is pending. Proof of service by publication is fabricated by filing the publisher's document of publication with the court.
   2. Service by mailing. — When plaintiff knows the residence of a defendant upon whom service has been unsuccessfully attempted equally described in Rule 4(eastward)(1)(D), or when plaintiff knows the residence of a nonresident defendant or the principal office of a nonresident defendant strange corporation or business trust for which no officer, director, trustee, agent, or appointed or statutory agent or attorney in fact is found in the State upon whom service may be had, plaintiff shall obtain effective service of the summons and complaint upon such accused by the method set forth in Rule for (d)(1)(D). The summons in such instance shall notify the defendant that the defendant must appear and defend within xxx days of the engagement of mailing pursuant to Rule iv(d)(one)(D); otherwise, that judgment by default will be rendered against the defendant at any time thereafter. Nonetheless, service pursuant to Rule 4(d)(1)(D) shall non exist the ground for the entry of a judgment by default unless the tape contains a return receipt showing acceptance by the defendant or a render envelope showing refusal of the certified postal service by the defendant. If delivery of the summons and complaint sent past the certified mail is refused, the clerk, promptly upon notice of such refusal, shall post to the accused, get-go form mail, stamp prepaid, a copy of the summons and complaint and a detect that despite such refusal the case will proceed and that judgment by default volition be rendered against defendant unless defendant appears to defend the conform. If plaintiff is unable to obtain service of the summons and complaint upon such accused by use of the method prepare forth in Rule 4(d)(one)(D), then, upon affidavit to such event filed with the court, the clerk shall issue an order of publication, and the procedures described in subdivision (east)(1) shall be followed to effectuate constructive service.
6. Personal service outside Land. — Personal service of a copy of the summons and complaint may be made exterior of this State on any defendant. If whatsoever such defendant exist then a resident of this Country and if the plaintiff shall during the pendency of the activeness file with the court an affidavit setting forth facts showing that the defendant is such a resident, such service shall take the same effect every bit personal service within this State and within the canton of the defendant's residence; otherwise, such service shall have the same effect equally constructive service. In either instance, the summons shall notify the accused that the defendant must appear and defend within thirty days later service, otherwise judgment by default volition be rendered confronting the defendant at whatever time thereafter.
7. Summons; service thereof in improver to effective service. — The plaintiff may, at any fourth dimension earlier judgment, accept a re-create of the summons and complaint served on a defendant in the manner provided past subdivisions (d) or (f) of this rule, although constructive service under subdivision (e) of this rule has been made. After such service under subdivision (d) of this rule, the action shall proceed as in other cases of personal or substituted service within the State; and later on such service under subdivision (f) of this rule, the action shall proceed equally in other cases of personal or constructive service.
8. Process part of record. — Summonses, complaints, proofs of service and returns endorsed thereon, all orders and notices served or published, all proofs of service and certificates of publication, and all other papers filed relating to such process, orders, and notices, are a function of the record of an action for all purposes.
9. Proof of service or publication. — The person serving the process or guild or publishing a notice or order shall make proof of service of publication to the court promptly and in whatever event within the time during which the person served must reply to the procedure, notice, or order. If service is made by a person other than the sheriff or clerk, that person shall brand proof thereof by affidavit. Failure to brand proof of service or publication within the time required does not affect the validity of the service of the process, notice, or order.
10. Amendment. — At whatever fourth dimension in its discretion and upon such terms as information technology deems just, the court may allow any process, observe, or order, or proof of service or publication thereof to be amended, unless information technology clearly appears that material prejudice would effect to the substantial rights of the party against whom the process, detect, or order issued or was entered.
11. Time limit for service. — If service of the summons and complaint is not fabricated upon a defendant within 120 days subsequently the filing of the complaint, the court, upon motility or on its own initiative after detect to the plaintiff, shall dismiss the activity without prejudice as to that accused or directly that service be effective within a specified time; provided that if the plaintiff shows skilful cause for the failure, the courtroom shall extend the time for service for an appropriate period.

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Service of other process

1. Generally. — Whenever an order of court provides for service of a rule, or order in lieu of summons or a rule, upon a party, service shall be fabricated in the style provided in Rule 4(d), unless the social club prescribes a different fashion of service. Rule 45 governs the service of subpoenas.
2. Process part of record. — Original, mesne, and final writs and process of every nature, and proofs of service and returns endorsed thereon, and all orders and notices served or published, and all proofs of service and certificates of publication and all other papers filed in relation to such process, orders, and notices, are a part of the tape of an activity for all purposes.

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Service and filing of pleadings and other papers

1. Service: when required. — Except as otherwise provided in these rules, every guild required past its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders considering of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, advent, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. For purposes of this rule, guardians advertizement litem are considered parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall exist served upon them in the manner provided for service of summons in Rule 4.
2. Same: how made. — Whenever nether these rules service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the political party is ordered past the court. Service upon the attorney or upon a political party shall be made by delivering a copy to the chaser or party; or by mailing it to the attorney or party at the chaser's or party'southward final-known address, or, if no address is known, by leaving information technology with the clerk of the court; or by facsimile transmission to the chaser or party pursuant to the Due west Virginia Supreme Court of Appeals Rules for Filing and Service by Facsimile Manual (see Editor's Note). Commitment of a copy within this rule means: handing it to the attorney or to the political party; or leaving it at the attorney'southward or political party's role with a clerk or other person in accuse thereof; or, if the office is closed or the person to exist served has no office, leaving it at the person's domicile or usual place of habitation with some fellow member of the person's family higher up the historic period of 16 years. Service by mail is consummate upon mailing.
3. Aforementioned: numerous defendants. — In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto demand not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due find of it to the parties. A copy of every such social club shall exist served upon the parties in such style and form as the courtroom directs.
4. Filing; certificate of service. —
   1. All papers after the complaint required to be served upon a political party together with a document of service, shall be filed with the court inside a reasonable time after service.
   2. Unless filing is required by the courtroom on move or upon its own initiative, depositions, interrogatories, requests for admissions, requests for production and entry, and answers and responses thereto shall not exist filed. Unless required to be filed for issuance of a subpoena for a deposition, a notice of deposition need not be filed. Certificates of service of discovery materials shall be filed.
   3. Unless otherwise stipulated or ordered, the party taking the deposition or obtaining any material through discovery is responsible for its custody, preservation, and delivery to the court if needed or ordered. Such responsibility shall not terminate until 1 year later on final disposition of the action. The responsibleness shall not end upon dismissal of any party while the activity is pending. The custodial responsibility of a dismissed party may exist discharged by stipulation of the parties to transfer the custody of the discovered cloth to one or more of the remaining parties.
5. Filing with the court divers. — The filing of papers with the court as required past these rules shall be made by filing them with the clerk of the court, who shall note thereon the filing engagement, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the function of the clerk; the note past the clerk or the judge of the filing date on any such paper constitutes the filing of such paper, and such newspaper and then becomes a part of the record in the action without any lodge of the court. Filing past facsimile is permitted pursuant to the W Virginia Supreme Court of Appeals Rules for Filing and Service by Facsimile Transmission. Electronic filing and service is permitted in limited circumstances pursuant to Trial Courtroom Rule fifteen.

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Time

1. Computation. — In computing any period of time prescribed or allowed by these rules, by the local rules of any court, past order of court, or by whatsoever applicative statute, the day of the act, event, or default from which the designated period of fourth dimension begins to run shall not be included. The final day of the period so computed shall be included, unless it is a Sabbatum, a Sunday, or a legal holiday, in which issue the flow runs until the stop of the next day which is not a Saturday, a Dominicus or a legal holiday. When the period of time prescribed or allowed is fewer than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule and in Rule 77(c), "legal holiday" includes New Yr's Day, Martin Luther King'southward Birthday, Lincoln's Altogether, Washington's Birthday, Memorial Day, West Virginia Day, Independence Day, Labor Solar day, Columbus Day, Veteran's Day, Thanksgiving Day, Christmas Day, whatever day on which a general, special or primary election is held in the country or in the county in which the circuit court sits, and any other twenty-four hours appointed as a holiday by the Governor or by the President of the U.s.a. as a day of special observance or thanksgiving, or a twenty-four hour period for the general cessation of business.
2. Enlargement. — When by these rules or past a notice given thereunder or by order of courtroom an act is required or immune to be done at or inside a specified fourth dimension, all the parties to the activeness, by written stipulation filed with the courtroom, may hold at any fourth dimension to a dissimilar menses, or the court for crusade shown may at any time in its discretion (ane) with or without motion or detect order the period enlarged if request therefor is made earlier the expiration of the catamenia originally prescribed or as extended past a previous gild, or (two) upon motion made later on the expiration of the specified menstruation permit the act to exist done where the failure to human action was the issue of excusable neglect; only information technology may not extend the time for taking whatever action under Rules 50(b), 52(b), 59(b), (d) and (due east), and sixty(b), except to the extent and nether the weather stated in them.
3. Unaffected by expiration of term. — The period of fourth dimension provided for the doing of any act or the taking of whatever proceeding is not affected or limited by the continued being or expiration of a term of court. The continued existence or expiration of a term of court in no way affects the power of a court to practice any act or take whatever proceeding in any civil action which has been awaiting before information technology.
4. For motions — affidavits —
   1. Service; motion. — Unless a dissimilar menstruum is set by these rules or by the court, a written motility (other than one which may exist heard ex parte), notice of the hearing on the movement, and whatsoever supporting brief or affidavits shall be served as follows:
      1. at least nine days earlier the fourth dimension set for the hearing, if served by mail, or
      2. at least 7 days before the time set for the hearing, if served by manus delivery or by fax to the opposing attorney, or if left with a person in charge at the opposing chaser's office, or in the result that the opposing political party is not represented by counsel, and then if served by hand delivery or by fax to the opposing party, or if left at the political party'southward usual residence with a person capable of accepting service pursuant to Rule 4(d)(ane)(B).
   2. Service; response. — Unless a different period is set by these rules or by the court, whatever response to a written motion, including any supporting cursory or affidavits, shall be served as follows:
      1. at least 4 days before the time set for the hearing, if served past mail, or
      2. at least 2 days before the time set for the hearing, if served by hand delivery or by fax to the opposing attorney, or if left with a person in charge at the opposing chaser's office, or in the upshot that the opposing political party is not represented by counsel, then if served past hand commitment or by fax to the opposing party, or if left at the party's usual residence with a person capable of accepting service pursuant to Rule 4(d)(ane)(B).
   3. Filing. — Unless the court sets a different catamenia, a written motility, notice of hearing on the motion, and any supporting briefs or affidavits shall be filed at to the lowest degree vii days before the hearing, and whatsoever response to a motion and supporting briefs or affidavits shall be filed at least 2 days before the hearing.
5. Boosted time after service past mail. — Whenever a party has the right or is required to exercise some act or have some proceedings within a prescribed period after the service of a notice or other paper upon the political party and the notice or paper is served upon the political party past mail, 3 days shall be added to the prescribed period.

Source: http://www.courtswv.gov/legal-community/court-rules/civil-procedure/II.html

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