Rule 4 Summons and Service of Process
Rule Text
(a) Contents. A summons shall be in the name of the Superior Court of the Virgin Islands, and it must:
(1) name the court and the parties;
(2) be directed to the defendant;
(3) state the name and address of the plaintiff's attorney or—if self-represented—of the plaintiff;
(4) state the time within which the defendant must appear and defend;
(5) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;
(6) be signed by the clerk; and
(7) bear the court's seal.
(b) Issuance. On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service upon the defendant. A separate summons must be issued for each defendant to be served.
(c) Service.
(1) In General. A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.
(2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.
(3) By a Marshal or Someone Specially Appointed. At the plaintiff's request, the court may order that service be made by a Virgin Islands Marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under Title 4, Section 513 of the Virgin Islands Code.
(d) [Reserved.]
(e) Serving an Individual Within the Virgin Islands. Unless law of the Virgin Islands provides otherwise, an individual — other than a minor, an incompetent person, or a person whose waiver has been filed — may be served in the Virgin Islands by doing any of the following:
(1) delivering a copy of the summons and the complaint to the individual personally;
(2) leaving a copy of the summons and complaint at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(3) delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process; or
(4) completing service in another manner approved by order of the court in the pending case upon a showing:
(A) that plaintiff has exercised due diligence in attempts to complete service using the methods provided in subparts (d)(1) to (d)(3) of this Rule but specific circumstances have made these efforts ineffectual in completing service upon one or more defendants; and
(B) that alternative methods to be specified by order of the court will provide protections calculated to afford proper notice to the defendant(s) involved, and will comport with the requirements of Due Process.
(f) Serving an Individual Located Outside the Virgin Islands. Where 5 V.I.C. § 4903 or other applicable law provides for the assertion of personal jurisdiction over a person located outside the Virgin Islands, the provisions and procedures of Title 5 V.I.C. Chapter 503 shall be followed including, but not limited to, the procedures for service and the filing of proof of service set forth in 5 V.I.C. §4911.
(g) Serving a Minor or an Incompetent Person. A minor or an incompetent person may be served in accord with the requirements of Title 5, Section 111 of the Virgin Islands Code.
(h) Serving a Corporation, Partnership, or Association. Unless law of the Virgin Islands provides otherwise or the defendant waives service,
(1) a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, may be served:
(A) in the Virgin Islands:
(i) in the manner prescribed by Rule 4(e) for serving an individual; or
(ii) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent; or
(iii) by delivering a copy of the summons and of the complaint to any other agent authorized by appointment or by law to receive service of process and — if the agent is one authorized by statute and the statute so requires — by also mailing a copy of the summons and complaint to the defendant; or
(B) at a place not within the Virgin Islands, in any manner prescribed by Rule 4(f) for serving an individual.
(2) a domestic or foreign limited liability company, may be served:
(A) in the Virgin Islands:
(i) in the manner prescribed by Rule 4(e) for serving an individual; or
(ii) 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 and — if the agent is one authorized by statute and the statute so requires — by also mailing a copy of the summons and complaint to the defendant; or
(iii) by delivering a copy of the summons and of the complaint to any member of the limited liability company; or
(iv) in any other manner authorized by Chapter 15 of Title 13 of the Virgin Islands Code; or
(B) at a place not within the Virgin Islands, in any manner prescribed by Rule 4(f) for serving an individual.
(3) If legal process against a corporation, limited liability company, partnership, or other association cannot by due diligence be served upon any person authorized to receive it, such process, including the complaint, may be served in duplicate upon the Lieutenant Governor pursuant to Title 13 of the Virgin Islands Code, which service shall be effective for all purposes of law.
(i) Serving the Government of the United States Virgin Islands and Its Agencies, Public Corporations, Officers, or Employees.
(1) Government of the Virgin Islands. In all cases in which the Government of the Virgin Islands is a named defendant, service shall be made by serving a summons and a copy of the complaint on the Governor and upon the Attorney General of the Virgin Islands.
(2) Public Corporations; Autonomous or Semi-Autonomous Government Agencies or Boards; Officers or Employees Sued in an Official Capacity.
(A) To serve a public corporation, autonomous or semi-autonomous government agency or board, or an governmental officer or employee sued only in an official capacity, a party must
(i) serve the Government of the Virgin Islands as provided in Rule 4(i)(1), and
(ii) also serve a copy of the summons and complaint on the chief executive officer of the entity, and
(iii) also serve a copy of the summons and complaint on any officer or employee named in the action;
(B) To serve a public corporation that can be sued pursuant to 5 V.I.C. § 1142(b), a party must serve the designated registered agent, the chief executive officer, or any other person authorized by law to accept service of process, unless otherwise provided by law;
(C) To serve an autonomous or semi-autonomous governmental agency or board that can be sued in its own name, a party must serve the chief executive officer, or any other person authorized by law to accept service of process, unless otherwise provided by law; and
(D) To serve an officer or employee of a public corporation — or of an autonomous or semi-autonomous agency or board — in an action relating to that employment or position, a party must
(i) serve a copy of the summons and complaint on the chief executive officer of the public corporation, agency or board, and
(ii) also serve a copy of the summons and complaint on the officer or employee named in the action;
(3) Governmental Officers or Employees Sued Individually. To serve an officer or employee of the Virgin Islands, or of a public corporation, autonomous or semi-autonomous government agency or board, sued in an individual capacity for an act or omission occurring in connection with duties performed on behalf of the Virgin Islands (whether or not the officer or employee is also sued in an official capacity), a party must
(A) serve the Government of the Virgin Islands as provided in Rule 4(i)(1), and
(B) also serve the officer or employee as provided in Rule 4(e), (f), or (g).
(4) Extending Time. The court must allow a party a reasonable time to cure its failure to:
(A) serve a person required to be served under Rule 4(i)(2), if the party has completed service upon the Attorney General of the United States Virgin Islands; or
(B) serve the Government of the Virgin Islands under Rule 4(i)(3), if the party has completed service upon the officer or employee of the Virgin Islands.
(j) Serving the United States and Its Agencies, Corporations, Officers, or Employees.
(1) United States. To serve the United States, a party must:
(A)
(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought— or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk—or
(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney’s office;
(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.
(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.
(3) Officer or Employee Sued Individually. To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g).
(4) Extending Time. The court must allow a party a reasonable time to cure its failure to:
(A) serve a person required to be served under Rule 4(j)(2), if the party has served either the United States attorney or the Attorney General of the United States; or
(B) serve the United States under Rule 4(j)(3), if the party has served the United States officer or employee.
(k) Serving a Foreign State, a State of the United States, or its Local Government.
(1) Foreign State Entities. A foreign state or its political subpart, agency, or instrumentality must be served in accordance with 28 U.S.C. § 1608.
(2) State or Local Government. A state, a municipal corporation, or any other state- created governmental organization that is subject to suit must be served by:
(A) delivering a copy of the summons and of the complaint to its chief executive officer; or
(B) serving a copy of the summons and complaint in the manner prescribed by that state's law for serving a summons or like process on such a defendant.
(l) Territorial Limits of Effective Service. Serving a summons and complaint — or filing a waiver of service — satisfies the obligation of service of process sufficient to establish personal jurisdiction over a defendant:
(1) who is subject to personal jurisdiction in the Superior Court in the Virgin Islands; or
(2) when authorized by statute.
(m) Proving Service.
(1) Affidavit Required. Unless service is waived, proof of service must be made to the court. Except for service by the Virgin Islands Marshal or deputy marshal, proof must be by the server's affidavit in accordance with 5 V.I.C. § 114.
(2) Service Outside the United States. Service not within any State or Territory of the United States must be proved as follows:
(A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or
(B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee.
(3) Validity of Service; Amending Proof. Failure to prove service does not affect the validity of service. The court may permit proof of service to be amended.
(n) Time Limit for Service. If a defendant is not served within 120 days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subpart (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1).
(o) Process Timely Received Good Though Neither Served Nor Accepted. Except for process commencing actions for divorce or annulment of marriage or other actions wherein service of process is specifically prescribed by statute, a proper summons and complaint which have reached the person to whom they are directed within the time prescribed by law, if any, shall be sufficient although not served or accepted as provided in this Rule. In any motion challenging service where this subpart (n) is relied upon, the burden of proving timely receipt of the required process by a preponderance of the evidence shall be borne by the plaintiff.
(p) Asserting Jurisdiction over Property or Assets.
(1) Statutory Basis. The court may assert jurisdiction over property if authorized by a statute. Notice to claimants of the property must be given as provided in the statute or by serving a summons under this rule.
(2) Defendant's Assets. On a showing that personal jurisdiction over a defendant cannot be obtained in the Virgin Islands by reasonable efforts to serve a summons and complaint under this rule, the court may assert jurisdiction over the defendant's assets found in the Virgin Islands. Jurisdiction is acquired by seizing the assets under the circumstances and in the manner provided by law of the Virgin Islands.
REPORTER’S NOTE: Rule 4 covers a wide variety of issues relating to service of process (the summons and the complaint). Subpart (a) prescribes the components of a valid summons, including the name and address of the plaintiff's attorney or — if self-represented — of the plaintiff, an express statement on the document of the time within which the defendant must appear in response to the process, and a notification to the defendant that a failure to appear and defend will result in a default judgment for the relief demanded in the complaint. Signature and seal requirements are also clearly stated. Subpart (b) notes the process by which the plaintiff may present a summons to the clerk for signature and seal, and it specifically states: " A separate summons must be issued for each defendant to be served." Subpart (c) is the detailed provision for service of process on different categories of defendants. It continues the authorization for service of the summons and complaint by any person who is at least 18 years old and not a party, and includes service by the Virgin Islands Marshal, a deputy, or another person specially appointed by the court. Subpart (e) provides the standard means of serving an individual within the Virgin Islands. In addition to the three traditional means (delivery, leaving a copy at the abode with a person of suitable age and discretion, and delivering to an authorized agent) the Rule now specifically recognizes that the court may — where the facts of a case demonstrate that these three methods are not workable — order another method of completing service so long as the ordered procedure will afford proper notice to the defendant(s) involved, and will comport with the requirements of Due Process. Subpart (f) implements the statutes that govern service upon an individual located outside the Virgin Islands, key provisions of which are cited in this subpart. Subpart (g) addresses the means for serving a minor or an incompetent person, and invokes the requirements and procedures of 5 V.I.C. § 111. Subpart (h) authorizes service of process on a corporation, partnership, or association, using the traditional means for serving an individual, or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to a registered agent. Because of the different structure of limited liability companies under Virgin Islands law, a separate subpart of
(h) lists the options for serving one of these entities, which includes service upon a "member" of the LLC. Subpart (i) prescribes the methods for serving the Government of the Virgin Islands and its agencies, public corporations, as well as public officers and employees. For each category of prospective defendant it is made clear whether the Governor or the Attorney General, and/or the chief executive officer of the entity involved, needs to be served with a copy of the summons and complaint. The slightly different requirements for service upon an autonomous or semi- autonomous public agency or board are also stated. The rule differentiates suits against individual officers or employees of governmental bodies based on whether the individual is sued in an "official capacity" or in an individual capacity. Subsection (k) deals with serving a foreign nation, a state of the United States, or a local government elsewhere, and for serving foreign "state entities" cross-references the federal statute which requires suits in any court to achieve service in a particular fashion, as provided in 28 U.S.C. § 1608. Subsection (l) notes that proper service of the summons and complaint (or the filing of any appropriate documentation of a waiver of service by a particular defendant) will satisfy the needs for service, and will establish personal jurisdiction if the constitutional and statutory requirements for personal jurisdiction are met (minimum contacts, general presence, or other grounds for personal jurisdiction). Subpart (m) indicates that — except where service of process is completed by the Virgin Islands Marshal or deputy marshal, proof of the completion of service must be made by fling an affidavit by the server as provided in 5 V.I.C. § 114. Subpart (n) is the provision setting the time period — after filing of a complaint — in which each defendant must be served. While the federal courts have reduced this period to 90 days, the provisions of Virgin Islands Rule of Civil Procedure 4(n) have kept this time period at 120 days, in keeping with traditional practice and in recognition of the burdens entailed in completion of service in the Islands. Subpart (o) is a safety-valve provision for those cases where the plaintiff can demonstrate that the process — the summons and the complaint — were actually received by a defendant, even in instances where the specifics of Rule 4 may not have been followed. This provision (not applicable for process commencing actions for divorce or annulment of marriage or other actions for which a statute precludes this procedure) indicates that if service of process is challenged by a defendant, the plaintiff must satisfy the burden of proof to show by a preponderance of the evidence that the summons and complaint were — in fact — actually received by this defendant within the 120 days prescribed by Rule 4(n) or other time limits prescribed by law.