Rule 3.Commencing an action

Reporter’s Notes—Second 2018 Amendment: Present Rule 3 is designated Rule 3(a), and Rule 3(b) is added to provide a “prisoner’s mailbox” procedure for the filing of a complaint in a civil action by an inmate confined in an institution. The amended rule is virtually identical to V.R.A.P. 4(f), adopted effective March 13, 2017. As stated in the Reporter’s Notes to that rule, which is similar, but not identical, to F.R.A.P. 4(c)(1), the rule provides that deposit of a [complaint] in the internal prison mailing system can constitute timely filing and requires use of a prison “legal mail” system if available. The rule also explicitly creates a rebuttable presumption that the filing is timely if accompanied by a notarized statement showing deposit in the institution’s internal mailing system on or before the last day for filing. Paragraph [(2)] follows the federal [appellate] rule in allowing evidence of timely filing other than the notarized statement. Unlike the federal rule, the rule does not require a statement that postage has been or “is being” prepaid, nor does it give the Court discretion to allow later filing of the notarized statement. Although most prisoner filings are not complaints, a rule governing complaints is desirable, particularly in view of issues raised by the housing of prisoners in out-of-state prisons with differing systems. Simultaneous amendments adding V.R.C.P. 5(e)(4) and V.R.A.P. 25(a)(2)(C) establish an identical procedure for inmate filing of documents after the complaint that are required to be filed by V.R.C.P. 5 and papers after the notice of appeal required to be filed by V.RA.P. 25.

Reporter’s Notes—2018 Amendment: Rule 3 is amended to extend its 20-day time period to 21 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.

Reporter’s Notes—1986 Amendment: Rule 3 is amended to increase the time limit for service of the summons and complaint when the action is commenced by filing. The new time limit is 60 days. The increase is necessary to allow time for service by mail under Rule 4(l) as added in a contemporaneous amendment. See Reporter’s Notes—1986 Amendment to Rule 4. Although under 12 V.S.A. § 466 an action is commenced on the date of filing for purposes of the statute of limitations, the failure to serve the summons and complaint within the time limit of the rule can result in dismissal of the complaint so that the filing is a nullity. See Weisburgh v. McClure Newspapers, Inc., 136 Vt. 594, 396 A.2d 1388 (1979).

Reporter’s Notes—1981 Amendment: Rule 3 is amended to reference the new authorization in Rule 41(b)(1) for dismissal on motion of the court. See Reporter’s Notes accompanying the amendment of that rule. The amendment applies to the District Court, because D.C.C.R. 3 incorporates Civil Rule 3.

Reporter’s Notes: This rule departs from Federal Rule 3 by providing two means of commencing an action. The first, permitted in any action and required when attachment, trustee process, or replevin is to be used, is by filing the complaint in court— the sole method under the federal rule. The second, analogous to prior Vermont practice under 12 V.S.A. §§ 771, 772, 4315 (now superseded), is by service of summons and complaint upon the defendant prior to filing in court. Commencement by filing is required in attachment, trustee process, and replevin to implement the hearing procedure provided for those writs by Rules 4.1(b)(2), 4.2(b), 64(b). To prevent premature disclosure, pending legislation (1971-H. 326, § 15) would amend 4 V.S.A. § 602(4) to provide that the filing of an action may not be disclosed to the public until the completion of service. Retention of the alternative of commencement by service in other actions is for the convenience of plaintiff’s counsel, who must in any event under Rule 4(i) file proof of service. Cf. Me. R.C.P. 3; R.I.R.C.P. 3. When the action is commenced by filing the complaint, the rule requires that service be had within 30 days thereafter. There is no such specific provision in the federal rule although the federal courts have dismissed actions for excessive or unreasonable delays in service. See Hoffman v. Wair, 193 F. Supp. 727 (D.Or. 1961). The 30-day limit, which is consistent with the time periods of Rules 4.1(d), 4.2(d) and 64(d), puts the burden on a plaintiff who legitimately needs more time to seek enlargement of the period under Rule 6(b). The requirement that the complaint be filed within 20 days after completion of service when an action is commenced by that method is similar to and supersedes that of 12 V.S.A. § 772, requiring entry and docketing of process within 21 days from the date of the writ. The 20-day period of the rule runs from the time of service on the first defendant served where there are multiple defendants. Note that the requirement of 12 V.S.A. § 771 that the officer complete service within 21 days after the issuance of process still controls. Date of issuance should be construed as the date of the complaint, because an action is still deemed commenced for purposes of tolling the statute of limitations on that date. Bethel Mills, Inc. v. Whitcomb, 116 Vt. 357, 76 A.2d 548 (1950); Jacques v. Jacques, 128 Vt. 140, 259 A.2d 779 (1969). In view of the possibilities of abuse in this practice, it would be preferable to have the critical date provable through a third person. Accordingly, pending legislation (1971-H. 326, § 222) would add 12 V.S.A. § 466 to the general statute of limitations, making clear that for the purposes of the statute an action is commenced when the complaint is either filed with the clerk or served. Cf. 14 Me.Rev.Stat.Ann. § 553; R.I.G.L. § 9-1-12. The same bill (§ 226) would also repeal 12 V.S.A. § 771 because the date of the complaint would no longer be critical. The final sentence of the rule gives the court discretion, when an action dismissed for failure to serve process or file a complaint is deemed vexatious, to impose as costs a reasonable attorney’s fee, recoverable against either the plaintiff or his attorney. In view of this sanction and the inherent power recognized by the federal courts to require security for costs in an appropriate amount upon a proper showing by the defendant, 12 V.S.A. §§ 654(b), 657, 4317, 4322, imposing the requirement of recognizance or security, would be repealed by pending legislation (1971- H. 326, § 226). See 3 Barron & Holtzoff, Federal Practice and Procedure § 1198 (Wright ed. 1958). Where plaintiff seeks a temporary restraining order or preliminary injunction, Rule 65(c) expressly requires security to be given unless waived by the court for cause shown.