MT Code § Rule 4 (2021)
2021 Montana Code Annotated|Title 25. Civil Procedure|Chapter 20. Rules of Civil Procedure|Part II. Commencing an Action; Service of Process, Pleadings, Motions, and Orders|Rule 4. Persons Subject to Jurisdiction; Process; Service

  Rule 4. Persons Subject to Jurisdiction; Process; Service.   (a) Definition of Person. As used in this rule, the word "person," whether or not a citizen of this state, a resident of this state, or organized under the laws of this state, includes:   (1) an individual, whether operating in the individual's own name or under a trade name;   (2) an individual's agent or personal representative;   (3) a corporation;   (4) a limited liability company;   (5) a business trust;   (6) an estate;   (7) a trust;   (8) a partnership;   (9) an unincorporated association;   (10) any two or more persons having a joint or common interest or any other legal or commercial entity; and   (11) any other organization given legal status as such under the laws of this state.   (b) Jurisdiction of Persons.   (1) Subject to Jurisdiction. All persons found within the state of Montana are subject to the jurisdiction of Montana courts. Additionally, any person is subject to the jurisdiction of Montana courts as to any claim for relief arising from the doing personally, or through an employee or agent, of any of the following acts:   (A) the transaction of any business within Montana;   (B) the commission of any act resulting in accrual within Montana of a tort action;   (C) the ownership, use, or possession of any property, or of any interest therein, situated within Montana;   (D) contracting to insure any person, property, or risk located within Montana at the time of contracting;   (E) entering into a contract for services to be rendered or for materials to be furnished in Montana by such person;   (F) acting as director, manager, trustee, or other officer of a corporation organized under the laws of, or having its principal place of business within, Montana; or   (G) acting as personal representative of any estate within Montana.   (2) Acquisition of Jurisdiction. Jurisdiction may be acquired by Montana courts over any person:   (A) through service of process as herein provided; or   (B) by the voluntary appearance in an action by any person either personally or through an attorney, authorized officer, agent, or employee.   (c) Summons.   (1) Issuance. On or after filing the complaint, the plaintiff or the plaintiff's attorney must present a summons to the clerk for issuance. The clerk must issue and deliver a properly completed summons to the plaintiff or the plaintiff's attorney, who must thereafter deliver it for service upon the defendant as prescribed by these rules. Service of the summons must be accomplished within the times prescribed by Rule 4(t). Upon request, the clerk must issue separate or additional summons against any parties designated in the original action or any additional parties who may be brought into the action. Such separate or additional summons must also be served in the manner and within the times prescribed by these rules. The party requesting issuance of the summons bears the burden of having it properly issued, served, and filed with the clerk.   (2) Form.   (A) Contents. A summons must:   (i) name the court and the parties;   (ii) be directed to the defendant;   (iii) state the name and address of the plaintiff's attorney or -- if unrepresented -- of the plaintiff;   (iv) state the time within which the defendant must appear and defend;   (v) 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;   (vi) be signed by the clerk; and   (vii) bear the court's seal.   (B) Quiet Title Actions. In an action to quiet title to real estate, the following must be added to the summons: "This action is brought to quiet title to land situated in _______________ County, Montana, and described as follows: [Here insert descriptions of land]."   (C) Statutory Exceptions. Whenever a Montana statute, or a court order or citation issued pursuant thereto, provides for the service of a notice, order, or citation in lieu of summons upon any person, service shall be made under the circumstances and in the manner prescribed by the statute, order, or citation. Additionally, all persons are required to comply with the provisions of the following sections, when applicable:   (i) 33-1-603 (service on an insurer through the commissioner of insurance);   (ii) 33-1-613 (service on unauthorized insurer doing business in Montana);   (iii) 33-1-614 (exemptions from service of process for certain insurers);   (iv) 33-2-314 (where to bring suit against an insurer);   (v) 33-2-315 (when the commissioner of insurance is appointed agent for service of process);   (vi) 70-28-207 (how summons must read in a suit to quiet title to property granted to an heir of a deceased entryman);   (vii) 70-28-208 (publication and posting of summons in a suit to quiet title to property granted to an heir of a deceased entryman);   (viii) 70-28-209 (personal service of summons -- service by mail in a suit to quiet title to property granted to an heir of a deceased entryman); and   (ix) 70-28-212 (time for the defendant to appear and answer in a suit to quiet title to property granted to an heir of a deceased entryman).   (D) By Publication. When service by publication is permitted pursuant to Rule 4(o), the published summons must also include a statement in general terms of the nature of the action. When the action is one in which the title to, or any interest in or lien upon, real property is involved, affected, or brought into question, the published summons must also contain a description of the real property and a statement of the object of the action.   (d) Service.   (1) In General. The summons and complaint must be served together. The plaintiff must furnish the necessary copies to the person who makes service.   (2) In Person. Service of all process may be made in the county where the party to be served is found by a sheriff, deputy sheriff, constable, or any other person over the age of 18 not a party to the action.   (3) (A) By Mail. A summons and complaint may also be served by mailing via first class mail, postage prepaid, the following to the person to be served:   (i) a copy of the summons and complaint;   (ii) two copies of a notice and acknowledgment conforming substantially to form 18-A; and   (iii) a return envelope, postage prepaid, addressed to the sender.   (B) A summons and complaint may not be served by mail to the following:   (i) A minor;   (ii) An incompetent person; or   (iii) A corporation, partnership, or other unincorporated association, whether domestic or foreign.   (C) If no acknowledgment of service by mail is received by the sender within 21 days after the date of mailing, service of the summons and complaint must be made in person.   (D) If a person served by mail does not complete and return the notice and acknowledgment within 21 days, the court must order that person to pay the costs of personal service unless good cause is shown for not doing so.   (E) The notice and acknowledgment must be signed and dated by the defendant, and service of summons and complaint will be deemed complete on the date shown.   (e) Serving an Individual. An individual -- other than a minor or an incompetent person -- must be served by either:   (1) delivering a copy of the summons and complaint to the individual personally; or   (2) delivering a copy of the summons and complaint to an agent authorized by appointment or law to receive service of process. If the agent is one designated by statute to receive service, such further notice as the statute requires must be given.   (f) Serving a Minor over the Age of 14 Years. A minor over the age of 14 years must be served by either:   (1) delivering a copy of the summons and complaint to the minor personally and leaving a copy thereof at the minor's usual place of abode with some adult of suitable discretion also residing therein; or   (2) delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.   (g) Serving a Minor under the Age of 14 Years. A minor under the age of 14 years may be served by delivering a copy of the summons and complaint to the minor's guardian within Montana. If the minor does not have a guardian within Montana, service of process must be delivered to any of the following:   (1) the minor's father;   (2) the minor's mother;   (3) another person or agency having the minor's care, control, or with whom the minor resides; or   (4) another person or agency as provided by court order.   (h) Serving an Incompetent Person.   (1) An incompetent person who has been adjudged of unsound mind by a Montana court or for whom a guardian has been appointed in Montana by reason of incompetency may be served by delivering a copy of the summons and complaint to the person's guardian, if such guardian resides in Montana, was appointed under Montana law, and is acting under Montana law. If there be no such guardian, the court must appoint a guardian ad litem for the incompetent person.   (2) When a party is alleged to be of unsound mind, but has not been so adjudged by a Montana court, process may be served personally upon that party.   (3) The court may also stay any action pending against a person on learning that such person is of unsound mind.   (i) Serving a Business or Nonprofit Entity.   (1) For the purposes of this Rule, a business or nonprofit entity includes the following:   (A) a corporation;   (B) a limited liability company;   (C) a partnership;   (D) any other unincorporated association; and   (E) any business entity that has filed with the office of the secretary of state.   (2) Service is available under this rule for a domestic business or nonprofit entity, as well as a foreign business or nonprofit entity that either:   (A) has a place of business in Montana;   (B) does business in Montana permanently or temporarily; or   (C) was doing business in Montana permanently or temporarily at the time the claim for relief accrued.   (3) A business or nonprofit entity must be served by either:   (A) delivering a copy of the summons and complaint to:   (i) an officer;   (ii) a director;   (iii) a manager;   (iv) a member of a member-managed limited liability company;   (v) a superintendent;   (vi) a managing agent;   (vii) a general agent; or   (viii) a partner;   (B) leaving copies of the summons and complaint at the office or place of business within Montana with the person in charge of such office;   (C) delivering a copy of the summons and complaint to the registered agent named on the records of the secretary of state;   (D) delivering a copy of the summons and complaint to any other agent or attorney in fact authorized by appointment or by statute to receive or accept service on behalf of the business or nonprofit entity, provided that if the agent or attorney in fact is designated by statute to receive service, further notice as required by the statute must also be given; or   (E) if the suit is against a business or nonprofit entity whose charter or right to do business in Montana has expired or been forfeited, by delivering a copy of the summons and complaint to its trustees or stockholders or members.   (j) Serving a Corporation or Limited Liability Company When Persons Designated Under Rule 4(i) Cannot Be Found Within Montana.   (1) This Rule applies when none of the persons designated in Rule 4(i) can be found within Montana with the exercise of due diligence, and a claim for relief is pending in any Montana court against the following:   (A) a corporation or limited liability company that has filed a copy of its charter in the office of the Montana secretary of state and is qualified to do business in Montana;   (B) a corporation or limited liability company which is subject to the jurisdiction of Montana courts under Rule 4(b), even though it has never qualified to do business in Montana; or   (C) a national banking corporation which, through insolvency or lapse of charter, has ceased to do business in Montana.   (2) The party causing summons to be issued shall exercise reasonable diligence to ascertain the last known address of any person designated under Rule 4(i).   (3) If, after exercising reasonable diligence, the party causing summons to be issued is unable to accomplish service, the following must be filed with the clerk of the court in which the claim for relief is pending:   (A) an affidavit reciting that none of the persons designated in Rule 4(i) can be found within Montana, as well as a recitation of either:   (i) the last known address of any person designated under Rule 4(i); or   (ii) a statement that no address for any person designated under Rule 4(i) could be found after the exercise of reasonable diligence; and   (B) $20 deposited with the clerk to be paid to the secretary of state as a fee for each defendant for whom the secretary of state is to receive service. When service is requested at more than one address, an additional $20 must be paid for each party to be served at each additional address.   (4) An affidavit filed pursuant to Rule 4(j)(3)(A) reciting that diligent inquiry was made is sufficient evidence of the diligence of inquiry. The affidavit need not detail the facts constituting such inquiry. The affidavit may also be combined in the same instrument with the affidavit required under Rules 4(o)(3)(A)(ii) and 4(p), should an affidavit under these Rules be required.   (5) Upon receiving the necessary affidavit and fees as required under Rule 4(j)(3), the clerk of court must:   (A) issue an order directing process to be served upon the Montana secretary of state or, in the secretary of state's absence, upon the Montana deputy secretary of state; and   (B) mail to the secretary of state at the office of the secretary of state:   (i) the original summons;   (ii) one copy of the summons and affidavit for the files of the secretary of state;   (iii) one copy of the summons attached to a copy of the complaint for each of the defendants to be served by service upon the secretary of state; and   (iv) the fee for service.   (6) (A) Upon receiving the materials required under Rule 4(j)(5)(B), the secretary of state must mail a copy of the summons and complaint by certified mail, return receipt requested, either:   (i) to the last known address of any of the persons designated in Rule 4(i); or   (ii) if the corporation or liability company is not organized in Montana and no address for a person designated under Rule 4(i) is known, to the secretary of state of the state in which the corporation or limited liability company was originally incorporated, if known.   (B) The secretary of state must also make a return as provided in Rule 4(p).   (7) Service made in accordance with this Rule is deemed personal service on the corporation or limited liability company and the secretary of state, or a deputy in the absence of the secretary of state, is thereby appointed agent of the corporation or limited liability company for service of process.   (8) (A) If a person designated in Rule 4(i) is located and served personally as provided by this Rule, service is deemed complete upon the corporation or limited liability company regardless of the receipt of any return receipt or advice by the postal authority of refusal of the addressee to receive the process mailed.   (B) If a person designated in Rule 4(i) is not located or served personally as provided by this Rule, service by publication must also be made as provided in Rules 4(c)(2)(D) and 4(o)(4). Such publication must first be made within 60 days from the date the original summons is mailed to the secretary of state. If such first publication is not made, the action shall be deemed dismissed as to any corporation or limited liability company intended to be served by such publication. Service by publication in accordance with this Rule is complete upon the date of the last publication of summons.   (9) When service of process is made in accordance with this Rule, and there is no appearance thereafter made by any attorney for such corporation or limited liability company, service of all other notices required by law to be served in such action may be served upon the secretary of state.   (k) Serving a Local Government Entity.   (1) For purposes of this Rule, a local government entity includes the following:   (A) a city;   (B) a village;   (C) a town;   (D) a school district;   (E) a county; or   (F) a public agency or board of any such entity.   (2) A local government entity must be served by delivering a copy of the summons and complaint to any of the following:   (A) a commissioner;   (B) a trustee;   (C) a board member;   (D) a mayor; or   (E) a head of the legislative department thereof. Whenever an officer or employee of the local government entity is sued in an individual capacity for an act or omission occurring in connection with duties performed on the local government entity's behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the local government entity and also serve the officer or employee under Rules 4(e), 4(f), 4(g), 4(h), or 4(n).   (l) Serving the State. The state, as well as any state board or agency, must be served by delivering a copy of the summons and complaint to the attorney general and any other party prescribed by statute. Whenever an officer or employee of the state is sued in an individual capacity for an act or omission occurring in connection with duties performed on the state's behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the state and also serve the officer or employee under Rules 4(e), 4(f), 4(g), 4(h), or 4(n).   (m) Serving an Estate or Trust.   (1) An estate must be served by delivering a copy of the summons and complaint to the personal representative.   (2) A trust must be served by delivering a copy of the summons and complaint to any of the trustees.   (n) Personal Service outside Montana.   (1) When a person cannot, with due diligence, be served personally within Montana, service may be made outside Montana in the manner provided for service within Montana. Such service has the same force and effect as though it had been made within Montana.   (2) Where service by publication is permitted, personal service of the summons and complaint upon the defendant outside Montana is equivalent to and dispenses with the procedures, publication, and mailing provided for in Rules 4(o)(3), 4(o)(4), and 4(o)(5).   (o) Service by Publication.   (1) When Permitted. A defendant who has not been served under the foregoing sections of Rule 4 can only be served by publication in the following situations:   (A) when the subject of the action is real or personal property in Montana in which the defendant has or claims an actual or contingent lien or interest, or the relief demanded consists wholly or partially in excluding the defendant from any interest therein;   (B) when the action is to foreclose, redeem from, or satisfy a mortgage, claim, or lien upon real or personal property within Montana;   (C) when the action is for dissolution, legal separation or a declaration of invalidity of a marriage of a Montana resident, for modification of a decree of dissolution, or for an order on custody, visitation, support, or a parenting plan granted by a Montana court; or   (D) when the defendant has property within Montana which has been attached or has a debtor within Montana who has been garnished. Jurisdiction under this subsection may be independent of or supplementary to jurisdiction acquired under Rules 4(o)(1)(A), 4(o)(1)(B), or 4(o)(1)(C).   (2) Effect of Service by Publication. When a defendant has been served by publication as provided in this Rule, any Montana court having jurisdiction may render a decree adjudicating any interest of such defendant in the status, property, or thing acted upon. Such a decree does not bind the defendant personally to the personal jurisdiction of the court unless some ground for the exercise of personal jurisdiction exists.   (3) Filing of Pleading and Affidavit for Service by Publication; Order for Publication.   (A) Before service of the summons by publication is authorized, the following must be filed with the clerk of the district court of the county in which the action is commenced:   (i) a pleading setting forth a claim in favor of the plaintiff and against the defendant in one of the situations defined in Rule 4(o)(1); and   (ii) (a) in situations defined in Rules 4(o)(1)(A), 4(o)(1)(B), and 4(o)(1)(C), upon return of the summons showing the failure to find any defendant designated in the complaint, an affidavit stating that either:   1. such defendant resides out of Montana;   2. such defendant has departed from Montana;   3. such defendant cannot, after due diligence, be found within Montana;   4. such defendant conceals the defendant's person to avoid the service of summons;   5. the defendant is a business or nonprofit entity as defined in Rule 4(i)(1) of which none of the persons in Rule 4(i) can, after due diligence, be found within Montana; or   6. the defendant is an unknown claimant and the affiant has made diligent search and inquiry for all persons who claim or might claim any present or contingent right, title, estate, interest in, lien, or encumbrance upon such property or any part thereof, adverse to plaintiff's ownership, or any cloud upon plaintiff's title thereto, including any right of inchoate or accrued dower, and that the affiant has specifically named as defendants in such action all such persons whose names can be ascertained.   (b) Such affidavit is sufficient evidence of the diligence of any inquiry made by the affiant if it recites the fact that diligent inquiry was made. The facts constituting such inquiry need not be detailed.   (c) Such affidavit may be with the affidavit required under Rules 4(j)(3)(A) and 4(p), should an affidavit under these Rules be required.   (iii) In the situation defined in Rule 4(o)(1)(D), proof that a valid attachment or garnishment has been effected must first be presented to the court.   (B) Upon complying herewith, the plaintiff must obtain an order, issued either by the judge or clerk of court, for the service of summons to be made upon the defendants by publication.   (4) Number of Publications. Service by publication must be made by publishing the summons once a week for three successive weeks in a newspaper published in the county in which the action is pending or, if no newspaper is published in such county, then in a newspaper published in an adjoining county that has a general circulation therein.   (5) Mailing Summons and Complaint. A copy of the summons and complaint, at any time after the filing of the affidavit for publication but not later than 14 days after the first publication of the summons, must be mailed, postage prepaid, to the defendant at defendant's place of residence, unless the affidavit for publication states that the residence of the defendant is unknown. If the defendant is a business or nonprofit entity as defined in Rule 4(i)(1), and personal service cannot with due diligence be effected within Montana on any of the persons designated in Rule 4(i), then the secretary of state must be served pursuant to Rule 4(j).   (6) Time When First Publication or Service outside Montana Must Be Made. The first publication of summons or personal service of the summons and complaint upon the defendant out of Montana must be made within 60 days after the filing of the affidavit for publication. If not, the action must be dismissed as to any party intended to be served by such publication.   (7) When Service by Publication or Outside Montana Complete. Service by publication is complete on the date of the last publication of the summons or, in case of personal service of the summons and complaint upon the defendant out of Montana, on the date of such service.   (p) Serving the Secretary of State.   (1) Whenever service is to be made as provided in Rules 4(i) and 4(o)(5), the requirements of Rule 4(i) must be met.   (2) In all other cases, unless otherwise provided by statute, whenever the Montana secretary of state has been appointed, or is deemed by law to have been appointed, as the agent to receive service of process for any person who cannot with due diligence be found or served personally within Montana, the party or the party's attorney must file with the clerk of court in which the claim for relief is pending the following:   (A) an affidavit stating the facts showing that the secretary of state is such agent, as well as the residence and last known address of the person to be served;   (B) sufficient copies of the affidavit, summons, and complaint for service upon the secretary of state; and   (C) $20 to be paid to the secretary of state as a fee for each of the defendants for whom the secretary of state is to receive service. Where service is requested at more than one address, an additional $20 must be paid for each party to be served at each additional address.   (3) Upon receipt of the materials specified in Rule 4(p)(2), the clerk must forward to the secretary of state the following:   (A) the original summons;   (B) a copy of both the summons and the affidavit for the files of the secretary of state;   (C) a copy of the summons attached to a copy of the complaint for each of the defendants to be served by service upon the secretary of state; and   (D) the fee.   (4) Such service on the secretary of state is sufficient personal service upon the person to be served provided that either:   (A) notice of such service, a copy of the summons, and a copy of the complaint are sent from the secretary of state or a deputy to the party to be served at the party's last known address by registered or certified mail, marked "Deliver to Addressee Only" and "Return Receipt Requested." Either such return receipt purportedly signed by the addressee must be received by the secretary of state, or the postal authority must advise the secretary of state that delivery of the registered or certified mail was refused by the addressee, except in those cases where compliance is excused under the provisions of Rule 4(i). The date upon which the secretary of state receives either the return receipt or the advice of the postal authority is deemed the date of service; or   (B) the secretary of state, or a deputy, may cause a copy of the summons and complaint to be served by any qualified law enforcement officer in accordance with the applicable procedure from Rules 4(e)-(n).   (5) The secretary of state or a deputy must make an original and two copies of an affidavit reciting the following:   (A) the fact of service upon the secretary of state by the clerk of court, including the day and hour of such service;   (B) the fact of mailing a copy of the summons, complaint, and notice to the defendant, including the day and hour thereof, except in those cases where such mailing is excused under Rule 4(i), in which cases the affidavit must so recite; and   (C) the fact of receipt of a return from the postal department, including the date and hour thereof. A copy of such return must be attached to the affidavit.   (6) The secretary of state, or a deputy, must then transmit to the clerk of court the following, which the clerk must file in the claim for relief:   (A) the original summons;   (B) the original affidavit; and   (C) a copy of the notice to the defendant, when such notice was required.   (7) The secretary of state or a deputy must also transmit to the plaintiff's attorney a copy of the secretary of state's or deputy's affidavit, along with a copy of the notice to the defendant where such notice was required.   (8) The secretary of state must keep on file in the secretary of state's office copies of the following:   (A) the summons;   (B) the affidavit served on the secretary of state by the clerk of court; and   (C) a copy of the affidavit executed and issued by the secretary of state or a deputy.   (9) Continuance to Allow Defense. In any of the cases provided for in either this Rule or Rule 4(i), the court in which the claim for relief is pending may order any continuance necessary to afford a reasonable opportunity to defend the action.   (q) Amendment. Upon such notice and terms as it deems just, the court in its discretion may allow any process or proof of service thereof to be amended at any time, unless it appears that material prejudice would result to the substantial rights of the party against whom the process issued.   (r) Proof of Service.   (1) Proving service of the summons and the complaint or notice accompanying the same, if any, must be accomplished as follows:   (A) if by the sheriff or other officer, the sheriff's or other officer's certificate including the time, date, and place of service;   (B) if by any other person, that person's affidavit;   (C) if by publication, an affidavit of the publisher and an affidavit of the deposit of a copy of the summons and complaint in the post office as required by law, if deposited; or   (D) the written admission of the defendant showing the date and place of service.   (2) If service is made under Rule 4(d)(3), the sender must file with the court the acknowledgment received.   (3) Failure to make proof of service does not affect the validity of service.   (4) The required affidavit of service must state the time, date, place, and manner of service. When service is by a person other than the sheriff or person designated by law, the affidavit must also state that the person serving is of legal age and knew the person served to be the person named in the papers served and the person intended to be served.   (s) Procedure Where Not All Defendants Served.   (1) If the summons is served on one or more, but not all, defendants, plaintiff may proceed to trial and judgment against the served defendant(s).   (2) At any time thereafter, plaintiff may serve summons to cause the unserved defendant(s) to appear to show cause why the unserved defendant(s) should not be made a party to such judgment. The court must then hear and determine the matter in the same manner as if the unserved defendant(s) had been originally brought into court. The unserved defendant(s) must also be allowed the benefit of any payment or satisfaction made on the recovered judgment.   (t) Time Limit for Issuance and Service of Process.   (1) A plaintiff must accomplish service within three years after filing a complaint. Absent an appearance by defendant(s), the court, upon motion or on its own initiative, must dismiss an action without prejudice if the plaintiff fails to do so.   (2) A plaintiff who names a fictitious defendant in the complaint pursuant to section 25-5-103 may, within three years of filing the original complaint, amend the complaint to substitute a real defendant for the fictitious defendant. The three-year time period set forth in Rule 4(t)(1) begins to run as to the newly identified defendant from the date of the filing of the original complaint.   History: En. Sup. Ct. Ord. No. AF 07-0157, April 26, 2011, eff. Oct. 1, 2011; amd. Sup. Ct. Ord. No. AF 07-0157, December 14, 2016, eff. July 1, 2017.