Rule 3.Commencement of Action

Advisory Note – November 2023

Rule 3 is amended to change formatting for consistency with these rules.

Advisory Note– July 2018

The amendment to Rule 3, together with amendments to Rules 4, 5(b), 11, and 101 of the Maine Rules of Civil Procedure, are part of a package of simultaneous amendments to require represented parties to serve pleadings and other papers electronically upon one another or by delivering copies pursuant to Rule 5(b)(1) following service of the summons and complaint under Rule 4. Parties who are not represented by an attorney may opt in to Electronic Service.

A more detailed description of Electronic Service and the procedures for complying with its requirements is stated in the Advisory Note to Rule 5.

Advisory Committee’s Note

Rule 3 is amended to cure an omission which has existed since the original promulgation of the Rule. When a civil action is commenced by service, there is a 20-day time limit within which the complaint must be filed with the court. There is no comparable requirement that service be accomplished within a stated time when the action has been commenced by filing the complaint with the court. Although some leeway to account for difficulties in making service is desirable, there have been recent instances of actions filed against easily served entities such as hospitals or housing authorities in which service has not been accomplished for a year or more after the filing of the complaint. Such delay is not only inappropriate and potentially prejudicial to defense preparation. It is also inconsistent with other measures recently taken to expedite the pretrial proceedings. See 1988 Amendment of M.R. Civ. P. 16.

In 1983, as part of a major revision of service of process procedures under which service is to be made by the plaintiff rather than by the United States marshal, Congress added Rule 4(j) to the Federal Rules of Civil Procedure. This provision imposed a 120-day time limit on service after filing and plainly reflected the concern of Congress that, with the clerk no longer controlling service, some sanction was necessary to avoid delay and abuse. Before the 1983 amendment, under Federal Rule 4(a), there was practice of dismissal for untimely service if process was not served “forthwith” by the marshal under the clerk’s direction. Without even the support of “forthwith” in Maine Rule 4(b), Maine judges have been understandably reluctant to impose sanctions for untimely service, despite the encouragement of 1 Field, McKusick, and Wroth, Maine Civil Practice § 4-1 (2d ed. 1970). But see Order, Dalot v. Smith, No. CV-86-75 (Me. Super Ct., Franklin Co., 6-3-88) (Alexander, J.). [See Dalot v. Smith, 551 A.2d 448, 449 (Me. 1988).]

The present amendment addresses this situation by imposing a requirement that return of service must be filed within 90 days after the filing of the complaint with the sanction of dismissal and, in the event of a vexatious filing, imposition of attorney fees. Of course, in a case where a justifiable reason for further delay is present, the 90-day period may be enlarged by court order under M.R. Civ. P. 6(b). For similar rules in other states, see Vt. R. Civ. P. 3; Mass. R. Civ. P. 4(j) (eff. 7/1/88).

Advisory Committee’s Note — January 1, 1973