AMEND SUM EJECT SERVICE/ALLOW PROCESS SERVER.

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View NCGA Bill Details2017-2018 Session
House Bill 1040 (Public) Filed Wednesday, May 30, 2018
AN ACT TO ALLOW SUMMARY EJECTMENT CLAIMS TO BE SERVED BY A PRIVATE PROCESS SERVER WHEN RETURNED UNEXECUTED, TO CLARIFY THE CALCULATION OF TIME LINES WHEN SERVING A SUMMONS IN SUMMARY EJECTMENT CASES, AND TO ALLOW THE PLAINTIFF IN A SUMMARY EJECTMENT ONLY CLAIM TO UTILIZE A PRIVATE PROCESS SERVER IN COUNTIES WITH POPULATIONS OF NINE HUNDRED THOUSAND OR GREATER, AS RECOMMENDED BY THE LEGISLATIVE RESEARCH COMMISSION COMMITTEE ON PRIVATE PROCESS SERVERS.
Intro. by Jordan, Bradford, Earle, Szoka.

Status: Re-ref Com On Rules, Calendar, and Operations of the House (House Action) (Jun 12 2018)
H 1040

Bill Summaries:

  • Summary date: May 30 2018 - View Summary

    Amends GS 1A-1, Rule 4(h1) (rule when service of process returns unexecuted), to remove the exception to this rule for claims served by a magistrate pursuant to GS 7A-223(b1) and the exception to this rule for process on summary ejectment pursuant to GS Chapter 42, Article 3. In effect, these changes allow summary ejectment claims to be served by a private process server when returned unexecuted. 

    Amends GS 42-28 (summons issued by clerk) to add subsections (a) through (c). Subsection (a) contains the statute as written previously. Subsection (b) directs that, in counties with 900,000 or more residents as of the most recent decennial federal census, at the election of the plaintiff after summons is issued, the clerk of superior court must either return the summons to the plaintiff for service by process server pursuant to GS 42-29(b), or forward the summons to the sheriff for service. Subsection (c) allows the plaintiff to extend the action in accordance with GS 1A-1, Rule 4(d), if the magistrate severs the claim for monetary damages pursuant to GS 7A-233(b1). 

    Amends GS 42-29 (service of summons) to add subsections (a) through (d). Subsection (a) contains the statute as previously written, describing the procedure for service by officer. With respect to the requirement that the officer visit the home of the defendant at least two days prior to the date of the appearance to answer the complaint, removes the provision excluding legal holidays from this two-day requirement. (This provision is moved to subsection (d)). Makes clarifying change and makes language gender-neutral. Subsection (b) allows for service by process server in summary ejectment proceedings in counties with 900,000 or more residents as of the most recent decennial federal census. Allows for proper service by a process server who receives a copy of the summons and complaint from the plaintiff pursuant to GS 42-28(b)(1) by mailing a copy of the summons and complaint to the defendant no later than the end of the next business day or as soon as practicable at the defendant's last known address in a stamped, addressed envelope provided by the plaintiff. The process server must also deliver copies of the summons and complaint to the defendant by affixing copies to a conspicuous part of the premises claimed, then demonstrate compliance with this subsection through an affidavit of service. The affidavit of service must include the time, place, and manner that these requirements were completed. Subsection (c) defines process server as a person who the plaintiff or plaintiff's agent or counsel may cause to serve the summons and complaint for summary ejectment and who meets the requirements listed in GS 1A-1, Rule 4(h1). Subsection (d) clarifies that when computing periods of time for service by an officer, only legal holidays when the courthouse is closed for transactions will be excluded, notwithstanding GS 1A-1, Rule 6, and excluding periods of time involving the mailing of a copy of a summons and complaint. 

    Effective October 1, 2018, and applies to actions for summary ejectment in which the summons is issued by the clerk of superior court on or after that date.