NRCP 4 is generally the first rule parties deal with in the very early stages of a lawsuit. Once a plaintiff files a complaint to initiate a lawsuit, the court clerk issues a summons for the plaintiff. It is then the plaintiff’s responsibility to deliver a copy of the complaint, along with the summons to the defendant, which notifies the defendant they are involved in a lawsuit and need to appear in court1. This process is known as “service of process.”
Summons: What Is Required?
The summons must contain the court clerk’s signature under the court seal, name of the court, county, parties to the action, name and address of plaintiff’s attorney, the plaintiff’s address, and the time and date the defendant must appear to defend the action.2 The summons must also notify the defendant that failure to appear at the stated date and time will result in a default judgment.3 The summons and complaint must be served upon the defendant together.4 Additionally, the person serving the defendant with these items must be a disinterested party over the age of 18.5 It is also typical for the sheriff’s department in the defendant’s county to serve the defendant.6 A defendant may be served anywhere, as long as it is within the state.7 After serving the defendant, the server must submit an affidavit to the court showing proof of service8.
The plaintiff must adhere to certain requirements depending on who or what is being served. For example, registered agents, officers, partners, or members must be served for actions against businesses and corporations.9 Key business employees within the state may be served in suits against an unregistered foreign entity.10
Who Can be Served a Summons?
The Nevada Supreme Court upheld the idea that service may only be made upon appropriate business agents in Karns v. State Bank & Trust Co.11 In Karns, the Court found that an assistant cashier, of the defendant’s domestic corporation, was not the managing agent, and therefore not able to receive service of process.12 This was despite the fact the assistant had authority to sign drafts and receive correspondence.13 The individual who received the summons and complaint did not have capacity to receive service because he was in charge of a branch of defendant’s banking business under the title of assistant cashier.14 Service may be made upon the secretary of state in the case such business employees cannot be located.15
Minors under the age of 14 must also be served personally, in addition to their parents or guardians.16 Additionally, legally incompetent persons must be served personally, in addition to any guardian.17 If suing a local government, the board of commissioners chair, city mayor, or applicable legislative department head must be served.18 In all other cases, the individual may be served personally or copies of the complaint and summons may be left at their home with a person of suitable age.19 Similar processes should be used when personally serving a defendant that resides out of state.20
The 120 Day Filing Requirement & Exceptions
An action will be dismissed if the defendant is not served the summons and complaint within 120 days after the filing of the complaint, unless the plaintiff has good cause for not serving within that time.21 In Joanna T. v. Eighth Jud. Dist. Ct., the court held that the 120 day filing requirement does not apply to proceedings governed by specific statutes, which contain procedures and practices that are inconsistent or in conflict with the rule.22 More specifically, the filing requirement does not apply to neglect and abuse petitions because the time limit is inconsistent with procedures designed to protect children from abuse and neglect.23
Joanna’s daughter was removed from family custody in December 2012 after an abuse-and-neglect petition alleged the child needed protection outside the home.24 In March 2014, Joanna filed a motion to set aside the recommendation to sustain the abuse-and-neglect petition because she never received the summons notifying her to appear in court.25 The petition was orally sustained.26 The juvenile court granted the motion and directed the State to issue Joanna a summons, which was served 486 days after the petition was initially filed.27 Although the summons was issued more than the 120 days allowed under NRCP 4, the juvenile court denied Joanna’s motion to dismiss the petition.28 The Court upheld the juvenile court’s decision to deny the petition, stating that despite procedural error, the purpose of the proceeding was to protect abandoned and abused children in need of protection.29 Additionally, dismissal on procedural grounds could cause a child to return to a potentially unsafe environment, while creating exposure to abuse, neglect, or injury.30
What if the Defendant Cannot be Found?
If the Defendant cannot be located after all reasonable attempts, then service may be made by publishing the summons in a Nevada newspaper.31 The notification must run in a newspaper at least once a week for four weeks.32 A copy of the summons and complaint may also be left with the post office for at least four weeks in the event the defendant cannot be found.33