A CAVEAT ABOUT PROCESS BY CERTIFIED MAIL

December 3, 2012 § Leave a comment

MRCP 4(c)(5) allows for process by certified mail on a natural person outside the state. There are two requirements: (1) that a copy of both the summons and the pleading be sent by certified mail, return receipt requested, restricted delivery; and (2) that there be evidence of the delivery or by the envelope returned marked, “Refused.” If either of the requirements are not met, you have to reissue process.

There must be proof that both “the summons and the complaint” (that’s the language of the rule, which I interpret to mean the summons and the pleading initiating the instant action) were included in the certified mailing. You can do this yourself by affidavit or certficate of service in the court file, or you can ask the clerk to do it with a notation on the docket, as in MRCP 4(c)(4)(C). Your notice that the petition or other pleading was sent, not mentioning the summons, is inadequate process. Likewise, merely mailing the summons alone is not enough.

It is not adequate for the process to be issued and addressed to “John Smith,” and for the return receipt to be signed by “J.W. Smith” or “Kathy Smith for John Smith,” or “Phyllis Smith, mother of John  Smith,” or any other person. Also, the record must show that the signature on the receipt is actually that of the party to be served. In a recent case in my court, the signature on the receipt unquestionably did not even remotely resemble the defendant’s signature on the original property settlement agreement or on a return mail receipt for an earlier proceeding.   

And, of course, the process must be timely served. For a Rule 81 summons, the return receipt must show deliver within the requisite time.

Also, the rule specifies that it applies to “a person outside this state.” In my opinion, it does not apply to natural persons located in Mississippi. There is a first-class-mail process provision for persons in Mississippi at MRCP 4(c)(3), and it does allow at its subsection (B) for service “in any other manner permitted by this rule,” if the required acknowledgment of mailing is not returned. But Rule 4(c)(5) specifically limits itself to “a person outside this state …” 

The rules for serving an out-of-state corporate entity or an out-of-state government entity are spelled out separately in MRCP 4(d)(4) and (8), respectively.

When I practiced, I almost never used certfied mail process (or first class mail either, for that matter). In my experience, postal employees don’t take any care to make sure that the deliveree is actually the addressee, or that the delivery is truly “restricted” within the meaning of the term, or that any of your needs are met. They are more concerned with getting that letter out of their hands, with a signature on the green card that they can hand off to somebody else. I usually persuaded my clients to go to the extra expense of retaining the services of a process server to save time and frustration. But I recognize that in these times of economic strain your clients appreciate anything you can do to save them some money.

If you’re going to use certified mail process, take the time and pay the attention to do it right. Read the rules. Process rules are to be strictly construed. Sloppy handling will result in unnecessary, frustrating delay for your client and further expense to get that summons served.

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