Rule 4.Process and service of the summons

Reporter’s Notes—2026 Amendment: Rule 4(c) is amended to expedite the special appointment of a process server. The rule now aligns with 12 V.S.A. § 731, which authorizes special appointment if it appears that service will be “more economical or efficient than service by an officer.” The former rule limited special appointments to cases in which substantial savings in travel fees would result. This amendment is in response to concerns about service of process delays due to limited availability of county or municipal officers. Examples of when alternative process server would be appropriate include when time is of the essence, or when service by officer is delayed in a jurisdiction. This remains so although 12 V.S.A. § 691 allows sheriffs and deputy sheriffs to serve process anywhere within the State, and 24 V.S.A. § 1935 extends the same authority to municipal police officers. The motion for a special appointment should provide sufficient information on the qualifications of the appointee. The court has discretion to determine whether the proposed process server for special appointment is suitable and reliable. The requirement to serve the order of appointment with the other documents served is an effort to address concerns that the party being served will recognize the validity of the service. The amendment also makes changes of style for clarity, with no intended change of meaning.

Reporter’s Notes—2025 Amendment: Rule 4(c) permits any superior judge to appoint an indifferent person to serve process. The rule is amended to reflect the 2010 restructuring of the judiciary by omitting the phrase permitting appointment by “a judge of the court to which it is returnable.” A cross-reference to service under paragraph (d)(2) is added because that paragraph now includes provisions for mail service by plaintiff or plaintiff's attorney that do not require a sheriff or other official. Other changes are made for clarity with no change of meaning intended. The caption and text of Rules 4(d) and 4(e) are amended to delete the references to “personal” service. This clarifies that Rules 4(d) and 4(e) authorize methods of substituted service not within the common meaning of personal service as in-hand delivery to the person to be served. Rule 4(d)(2) is amended to aggregate into a single subdivision the methods of service on the State of Vermont or any agency or officer thereof. Former Rule 4(f)(2), relating to mail service on an officer of the state as a statutory process agent, is moved to Rule 4(d)(2). The existing provision of Rule 4(d)(2), for service in false claims actions, is reworded for clarity with no change of meaning intended. As stated in the prior reporter’s note, “The provision in the rule for service ‘by any method of delivery requiring the signature of an addressee or an agent of an addressee’ is intended to include service by registered mail, certified mail, commercial carrier, or in-hand delivery.” See V.R.C.P. 4(d)(2), Reporter’s Notes—2016 Amendment. Rule 4(f) is recaptioned “Service by Mail Outside the State.” The text is reorganized to clarify each step in the mail service process and, in some cases, to modify the requirements of the existing rule. Rule 4(f)(1) clarifies what was implicit in the original rule, that it applies only to service by mail outside the state. The jurisdictional requirements of Rule 4(e) for service outside the state are repeated in the text of Rule 4(f)(1)(B). The rule remains limited to two special classes of cases involving property and divorce, Rule 4(f)(1)(C)(i) and (ii). Rule 4(f)(2) changes the requirement to use “registered or certified mail, with restricted delivery and return receipt requested” to any mail delivery method that “requires a signature by the addressee or the agent of the addressee for receipt of mail.” The change reflects 1 V.S.A. § 134a, which states that registered mail in this context includes “any method of mail delivery requiring the signature of the addressee or his or her agent.” See V.R.C.P. 4, Reporter’s Notes—2016 Amendment. Rule 4(f)(3) clarifies when service by first-class mail under Rule 4(f) is permitted and how it is completed. The requirements that the first-class mailing use the last known address of the person to be served, and that the mailing not be returned as undeliverable, are new. They are intended to assure that the method of service “be such as is reasonably calculated to reach interested parties.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 318 (1950).

Reporter’s Notes—2022 Amendment: Rules 4(b) and 4(l)(3)(D) and (H) are amended for consistency with the amendment of V.R.C.P. 84 and the abrogation of the Appendix of Forms consistent with the Supreme Court’s transfer to the Court Administrator of the authority to amend and adopt forms and publish them on the Judiciary website. See Reporter’s Notes to the simultaneous amendment of Rule 84, and abrogation of the Appendix of Forms.

Reporter’s Notes—2020 Amendment: Rule 4(b) is amended to clarify that its cross references are to the 2010 or 2020 Vermont Rules for Electronic Filing, if either is applicable.

Reporter’s Notes—2018 Amendment: Rule 4(g)(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. Rule 4(l)(3)(F) is amended to shorten the time for return of a waiver of service from 60 to 42 days. The existing rule allowed too much time to make this method of service feasible for timely commencement under Rule 3 in the case of a defendant outside any state or territory of the United States.

Reporter’s Notes—2016 Amendment: Rule 4(d)(2) is amended to provide a uniform, easily administered method of service of complaints and material information on the Vermont Attorney General as required by the state and federal False Claims Acts. See 32 V.S.A. § 632(b)(3); 31 U.S.C. § 3730(b)(2). The state act provides for service on the Attorney General “in accordance with the Rules of Civil Procedure.” 32 V.S.A. § 632(b)(3). F.R.C.P. 4(j) requires service on the state to be on the chief executive officer or pursuant to the state rules of civil procedure. With the enactment of 32 V.S.A. § 632, Vermont has been added to several pending and anticipated federal qui tam suits by relators’ counsels. The most common methods of service of the complaint and material disclosures by the federal qui tam bar in other jurisdictions have been by registered or certified mail or by private process servers. In Vermont, relators’ attorneys have agreed to accomplish service by sheriff. The provision in the rule for service “by any method of delivery requiring the signature of an addressee or an agent of an addressee” is intended to include service by registered mail, certified mail, commercial carrier, or in-hand delivery. Availability of these commonly used methods of process for both state and federal cases will obviate the need for the Attorney General’s Office to contact counsel in every case to request service by sheriff.

Reporter’s Notes—2015 Amendment: Rules 4(b) and (l) are amended to address a problem that arises with increasing frequency with the increase of self- representation. It is not uncommon for a court to get a letter or answer from an unrepresented defendant with no return address, email address, or phone number. The court may then have an answer or other pleading but no good address to which to mail hearing notices, and no way to call or email the party if there are last minute continuances of court dates. A notice of appearance form for self-represented parties is already in use informally in some Civil Division courts, but it is only available once a party comes to the courthouse. Provision of a blank notice of appearance form at the time the complaint is served will encourage unrepresented defendants to provide contact information for the court as well as to comply with V.R.C.P. 79.1(d). Form 28, Notice of Appearance for Self- Represented Litigant, is added by simultaneous amendment to the Appendix of Forms.

Reporter’s Notes—2014 Amendment: Rule 4(b) is amended to eliminate the requirement that the summons contain the e-mail address of the court in light of the fact that a defendant cannot respond to a summons by e-mail as the Judiciary’s system is presently constituted.

Reporter’s Notes—2011 Amendment: See Reporter’s Notes to simultaneous amendment making the Vermont Rules for Electronic Filing permanent.

Reporter’s Notes—2010 Amendment: Rules 4(b), (l)(3); 5(b), (e), (f); 6(a), (e); 10(d); 11(a), (b); 26(g); 40(a), (b); 45(a)(1)(G); 77(c), (d); 79(a)(1), (2); 79.1(g) of the Vermont Rules of Civil Procedure rules are amended or added to conform to the Vermont Rules for Electronic Filing as adopted by simultaneous emergency amendment. See Reporter’s Notes to those rules.

Reporter’s Notes—1999 Amendment: Rule 4(e) is amended to permit personal service outside Vermont, when otherwise appropriate under the rule, to be made in any manner permitted in the state where the process is served. Thus, if personal service by delivery pursuant to Rule 4(d)(1) cannot be made in another state but the law of that state permits service to be made by leaving the process at the defendant’s dwelling or other place of abode, that form of service may be used without obtaining an order from the Vermont court. See, e.g., N.Y.C.P.L.R. § 308(4) (service by affixing to door of place of abode and mailing permitted, where service by delivery cannot be made with due diligence).

Reporter’s Notes—1996 Amendment: Rule 4 is amended for conformity with 1993 amendments of Federal Rule 4(d) providing for voluntary waiver of service of a summons. The changes enhance and clarify the earlier federal procedure, which had been adapted for Vermont in the 1987 promulgation of Rule 4(l). The new procedure under Rule 4(l) applies only to actions that have been commenced by the filing of a complaint pursuant to Rule 3 (as are all federal civil actions) to avoid questions as to the time of commencement of the action for statute of limitations purposes. Rule 4(c) is amended to reflect the nature of the new procedure. To emphasize the need for the defendant’s affirmative cooperation, the procedure is no longer characterized as a form of service of process, but rather as a waiver of service. See Committee Notes to 1993 Amendment of Federal Rule 4(d). Rule 4(f) is amended by the addition of a provision permitting service by ordinary first class mail upon a statutory process agent who is an officer of the state. See, e.g., 12 V.S.A. §§ 891- 893 (Commissioner of Motor Vehicles as process agent for nonresident motorist); 11A V.S.A. § 5.04 (Secretary of State as process agent for corporation without registered agent). The amendment is necessary because the simultaneous amendment of Rule 4(l) substitutes a notice and waiver of service procedure for the former provision of that subdivision for service by mail. Former Rule 4(l)(2)(ii) expressly provided for mail service upon an officer of the state as statutory process agent. As pointed out in the Reporter’s Notes to the amendment of Rule 4(l), the new procedure is not appropriate for service upon a statutory agent because it requires a waiver by the defendant. Accordingly, the present amendment permits service by ordinary first class mail upon a statutory agent. The applicable statute must still be followed as to matters such as the number of copies to be served, any fee that must be paid, how notice of the service is to be sent to the defendant, and how return of service is to be made. Rule 4(l) is amended by replacing most of the rule with an adaptation of the 1993 amendment of Federal Rule 4(d). As the federal Committee Notes state, “The aims of the provision are to eliminate the costs of service of a summons upon many parties and to foster cooperation among adversaries and counsel. The rule operates to impose upon the defendant those costs that could have been avoided if the defendant had cooperated fully in the manner prescribed.” Rule 4(l)(1) is identical to Federal Rule 4(d)(1). It makes clear that waiver “does not prejudice the right of a defendant to object . . . to the absence of jurisdiction over the defendant’s person, or to assert other defenses that may be available. The only issues eliminated are those involving the sufficiency of the summons or the sufficiency of the method by which it is served.” Committee Notes to 1993 Amendment of Federal Rule 4(d)(1). Rule 4(l)(2) makes clear that the waiver procedure is to be used only in action commenced by filing and incorporates language of former Rule 4(l)(1) providing that the procedure may be used against any defendant amenable to service under Rules 4(d) and (e) except an infant or incompetent person. The scope of the provision is thus broader than that of Federal Rule 4(d)(2), which applies only in actions against individuals, corporations, and partnerships or other unincorporated associations. The final two sentences of the paragraph are taken from Federal Rule 4(d)(2). They state “what the present rule implies: the defendant has a duty to avoid costs associated with the service of a summons not needed to inform the defendant regarding the commencement of an action.” Committee Notes to 1993 Amendment of Federal Rule 4(d)(2). Rule 4(l)(3) is adapted from Federal Rule 4(d)(2)(A)-(G). The specific requirements for the notice and waiver set forth in subparagraphs (A)-(G) are embodied in amended Forms 1B and 1C adopted simultaneously with the amended rule. Subparagraph (A) requires that notice be sent to an individual defendant addressed to him or her personally, or, where defendant is a corporation or other entity, to a person authorized to receive service for that entity. The latter provision is intended to assure that the notice is received by an individual capable of executing the waiver. In contrast to both the federal rule and the prior Vermont rule, the notice and request for waiver may not be sent to an official who is by statute an agent for the receipt of process. See, e.g., 12 V.S.A. §§ 891-893 (Commissioner of Motor Vehicles as process agent for nonresident motorist); 11A V.S.A. § 5.04 (Secretary of State as process agent for corporation without registered agent). Since the purpose of the procedure is to obtain the defendant’s voluntary waiver of service, it is inappropriate to direct the notice to such an officer. If the defendant’s whereabouts are known, notice may be sent in accordance with Rule 4(l) directly to the defendant. If the defendant cannot be found or readily sent notice, service may be made upon the statutory agent in the first instance under the appropriate provision of Rule 4(d). A simultaneous amendment of Rule 4(f), discussed above, preserves the ability provided by former Rule 4(l)(2)(ii) to serve a statutory agent by mail. Rule 4(l)(3)(B) permits the use of “other reliable means” as an alternative to ordinary mail. Thus, private messenger services or electronic communications may be used. “If electronic means such as facsimile transcription are employed, the sender should maintain a record of the transmission to assure proof of transmission if receipt is denied, but a party receiving such a transmission has a duty to cooperate and cannot avoid liability for the resulting cost of formal service if the transmission is prevented at the point of receipt.” Committee Notes to 1993 Amendment of Federal Rule 4(d)(2)(B). Note that new Rule 4(l)(3)(G) requires plaintiff to furnish with the request for waiver “a prepaid means of compliance in writing.” If facsimile transmission or another electronic communication method is used to transmit the notice, some means of compliance with the requirement of subparagraph (3)(G) must be found. The final sentence of Rule 4(l)(3), like the former rule, permits the court to impose the costs of making personal service upon a defendant who cannot show good cause for failing to waive service. The federal Committee Notes state that “sufficient cause should be rare. It is not a good cause . . . that the claim is unjust or that the court lacks jurisdiction. Sufficient cause . . . would exist, however, if the defendant did not receive the request or was insufficiently literate in English to understand it.” Note that the cost-shifting provisions apply only if both plaintiff and defendant are located in the United States. When defendant claims nonreceipt of the notice and request as the basis for a showing of good cause, plaintiff retains the ultimate burden on the question of the validity of service. Cf. Montgomery, Zukerman, Davis, Inc. v. Diepenbrock, 698 F. Supp. 1453, 1459 (S.D. Ind. 1988), citing 4A C. Wright and A. Miller, Federal Practice and Procedure § 1083, at 12 (2d ed. 1987). The initial production burden on this question will be satisfied by evidence of mailing, from which receipt is presumed. Cf. Estey v. Leveille, 119 Vt. 438, 439, 128 A.2d 319, 320 (1957). That presumption, by virtue of V.R.E. 301, shifts to defendant the burden of producing evidence of nonreceipt. Cf. Montgomery, Zukerman, Davis, Inc. v. Diepenbrock, 698 F. Supp at 1461-62. If such evidence is forthcoming, cases under former Federal Rule 4(c)(2)(C)(ii) make clear that plaintiff continues to bear the burden of persuading the trier of fact on all the evidence that the notice and request were received. See Reno Distributors, Inc. v. West Texas Oil Field Equipment, Inc., 105 F.R.D. 511 (D. Kan. 1985) (no costs where defendant claimed nonreceipt and plaintiff asserted that mailed process had been received and returned by defendants but offered no evidence in support of assertion); Henry v. Glaize Maryland Orchards, Inc., 103 F.R.D. 589, 591 (D. Md. 1984) (no costs where process sent by certified mail and returned unclaimed, even though defendant did not oppose motion). Cf. Estey v. Leveille, supra (statement of counsel that mailed notice of continuance not received was sufficient to rebut presumption and require finding of nonreceipt in absence of evidence of receipt). Rule 4(l)(4), like Federal Rule 4(d)(3), gives a defendant who waives service 60 days to answer instead of the 20 days provided under Rule 12(a). The provision is intended to create an incentive for waiver and to eliminate any time advantage that otherwise might accrue if service is not waived. The provision for signature by the defendant personally or another appropriate person, not found in the federal rule, is comparable to former Rule 4(l)(3). Note that in the case of an individual defendant, the waiver must be signed by that person, not by another person or agent authorized to receive service under Rule 4(d)(1). Rule 4(l)(5) is virtually identical to Federal Rule 4(d)(4). The rule changes the effect of former Rule 4(l)(3) by providing that, when service is waived, the effective date of service for tolling the statute of limitations or triggering time periods other than the time for answer (e.g., Rules 15(c)(3), 30(a)) is the time at which plaintiff files the waiver, rather than the date on which defendant signs it. This provision, which is consistent with the federal rule, allows plaintiff to determine the effective date. The date of service remains important for limitations purposes even though new Rule 4(l)(2) makes clear that waiver may be used only when an action is commenced by filing the complaint. See Weisburgh v. McClure Newspapers, Inc., 136 Vt. 594, 396 A.2d 1388 (1979) (for commencement by filing to toll the statute under 12 V.S.A. § 466, service must be completed within the time provided by Rule 3). If the waiver cannot be filed by the date required under Rule 3, the plaintiff should seek to serve process upon the defendant within that period. Cf. Committee Notes to 1993 Amendment of Federal Rule 4(d)(4). The signed waiver, with indication of the filing date, must be served on the defendant and all other parties pursuant to Rule 5(a) and (b), to insure that they have notice of that date. Rule 4(l)(6), like Federal Rule 4(d)(5), seeks to discourage unnecessary use of formal service by providing that the costs that the plaintiff may recover are limited to those that accrue after failure to waive. “The paragraph is explicit that the costs of enforcing the cost-shifting provision are themselves recoverable . . . . In the absence of such a provision, the purpose of the rule would be frustrated by the cost of its enforcement, which is likely to be high in relation to the small benefit secured by the plaintiff.” Committee Notes to 1993 Amendment of Federal Rule 4(d)(5).

Reporter’s Notes—1992 Amendment: The words “or a copy” are added to the second sentence of Rule 4(a). The sheriff or other officer serving the summons is allowed to make his or her return of service upon either the original or a copy.

Reporter’s Notes—Second 1987 Amendment: Rule 4(g)(2) is amended in several respects. Prior to its amendment the rule stated that where an action “may affect” any property or credits “described in subdivision (e)(2) of this rule” the order for service by publication was required to include a description of such property or credits. Subdivision (e)(2) allowed personal service outside of Vermont on persons: whose interest in, title to, or right to the possession of goods, chattels, rights, credits, land, tenements or hereditaments in the state had been attached or secured by trustee process in the commencement of the action, or will be affected by a judgment in the action. Subdivision (e)(2) was deleted in 1979. See Reporter’s Notes—1979 Amendment. However, subdivision (g)(2) continued to refer to that subdivision. The 1987 amendments to Rule 4(g)(2) remove the reference to subdivision (e)(2). In its stead language is added requiring that an order for service by publication contain a property description where the action “places in issue” the title or interest of the defendant to any such property. The 1987 amendments also change the manner and frequency of publication. The former wording required that publication occur in a newspaper of general circulation in the county where the action is pending. The rule now authorizes publication in a newspaper or newspapers of general circulation “reasonably calculated to give notice to the defendant.” The county in which the action is pending may not be the county in which the defendant is most likely to peruse the newspaper, for example, if the defendant was last known to reside in another county or another state. The amendment conforms the rule to the principles of Continental Insurance Co. v. Moseley, 436 U.S. 1202, 103 S. Ct. 3530, 77 L. Ed. 2d 1383 (1984), and Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S. Ct. 2706, 77 L. Ed. 2d 180 (1983), which hold that traditional forms of notice by publication may not meet due process standards where they are not reasonably calculated to reach a party with a property interest at stake. The amendment is modeled after Vermont Rule of Probate Procedure 4(e). See Reporter’s Notes—1986 Amendment, V.R.P.P. 4. The 1987 amendments also change the frequency of publication from three successive weeks to “two or more” successive weeks. The intent is to reduce the cost of service by publication. The court’s order should specify the number of weeks. This provision too is based upon V.R.P.P. 4(e). See Reporter’s Notes—1986 Amendment, V.R.P.P. 4. The 1987 amendments also replace the reference to “his” address by reference to “an” address in the last line of the rule.

Reporter’s Notes—First 1987 Amendment: Rule 4 is amended to adopt a variation of the recent federal rule addition authorizing service by mail. See F.R.C.P. 4(c)(2)(C)(ii). The amendment was made by act of Congress, Pub. Law 97-462 (1982), and rejected an earlier amendment made by the Supreme Court which allowed service by certified or registered mail in most cases as a replacement for personal service. See Amendments to the Federal Rules of Civil Procedure, 93 F.R.D. 255 (1982), suspended by Pub. Law 97-222 (1982). The available legislative history of the federal amendment is reproduced in 96 F.R.D. 116-23 (1983). The addition adopts the Congressional approach by allowing service by first class mail, effective only if the defendant served, or someone on behalf of the defendant, executes an acknowledgement of service and returns it to the sender. Since acknowledgement is voluntary and service by mail doesn’t occur if the acknowledgement is not signed and returned, this approach avoids the constitutional problems that some found in the Supreme Court’s certified or registered mail scheme. See statement of Rep. Edwards reprinted in 96 F.R.D. 116, 118-19 (1983). This version is, however, broader in scope than the federal version. The federal rule allows the new mail service only on an individual, other than an infant or incompetent, or a corporation, partnership or unincorporated association. See F.R.C.P. 4(c)(2)(C). Under paragraph (l)(1) of this rule, service by mail can be used on anyone except an incompetent or infant. The plaintiff will have to investigate before service to be sure that the defendant being served by mail is not incompetent or an infant. As in the federal rule, the method of service is to mail the summons and complaint together with two copies of a notice and acknowledgement. Papers that accompany the summons and complaint may be included. New forms 1B and 1C have been added for guidance in making service by mail. The plaintiff can use these forms or one that conforms “substantially” to these forms. Form 1B applies when an individual is served. Form 1C applies when a corporation or other entity is being served or one person is being served on behalf of another. See, e.g., V.R.C.P. 4(d)(2). Neither the notice nor the acknowledgement must be executed under oath. Because the Vermont rule allows service by mail on corporations, the state and its agents and employees, units of government and public authorities, the rule specifies how to serve each by type of defendant. For the state, the notice must be mailed to the Attorney General or the Deputy Attorney General. Rule 4(l)(2)(ii). However, where an officer of the state is served as a process agent, service is on the officer. See 12 V.S.A. §§ 851 (service of Secretary of State as a process agent for a foreign corporation), 891 (service of Commissioner of Motor Vehicles as process agent for motor vehicle operator). For other entities, the mailing can be sent directly to the entity or to anyone who can be served under subdivision (d) on behalf of the entity. Rule 4(l)(2)(iii). Paragraph (3) clarifies an omission from the federal rule by defining when service by mail is complete. Service is complete when the acknowledgement is signed and dated—the dating shows when service was made. A diligent plaintiff will ensure that the acknowledgement is signed and dated before relying on it. The acknowledgement can be signed by anyone who could have been served under subdivision (d) whether or not that person was sent the summons and complaint. Paragraph (4) defines the obligation to mail the acknowledgement and the consequences for not doing so. Again the rule contains a clarification of the federal language. The federal rule appears to give effect to the acknowledgement only if it is executed, sent and received by the sender within 20 days. Under the Vermont rule, the acknowledgement is effective whenever it is executed. However, after 20 days, the plaintiff can use another service method, and, unless good cause is shown to the contrary, the court must order payment of the costs of alternative service. Normally, this payment order would be part of the final judgment whoever prevails. Paragraph (5) defines how service by mail is proved. The signed and dated acknowledgement is proof of service. It must be filed within the answer period. Compare Rule 4(i). As with other service, filing is a representation subject to Rule 11 that the complaint was a true copy. This amendment and addition applies in the district court.

Reporter’s Notes—1979 Amendment: Rules 4(e) and (f) are amended to conform the rule to the effect of the decision of the United States Supreme Court in Shaffer v. Heitner, 433 U.S. 186 (1977). Related amendments have been made in Rules 4.1(b) and 4.2(b). All of these amendments will be effective in the District Court by virtue of their incorporation in D.C.C.R. 4, 4.1, 4.2. In Shaffer, the Court overruled a line of cases founded on Pennoyer v. Neff, 95 U.S. 714 (1878), and exemplified by Harris v. Balk, 198 U.S. 215 (1905), which had held that, by the attachment of the tangible or intangible property of a nonresident defendant within the state, the courts of a state acquired jurisdiction to render a judgment subjecting that property to a claim against the defendant, regardless of the connection of the claim with the property or the state. Rules 4(e), (f), and 12 V.S.A. § 913(a) created such a procedure for Vermont. Shaffer holds that this form of “quasi in rem” jurisdiction violates due process, and that a state can exercise jurisdiction over the property of a nonresident defendant only if he has sufficient contacts with the state to sustain jurisdiction of his person in the action. Rule 4(e) as originally promulgated provided for personal service outside the state upon three classes of defendants: (1) those having contacts with the state sufficient to sustain personal jurisdiction under Vermont’s long- arm statute, 12 V.S.A. § 913(b); (2) those having property within the state that had been attached at the commencement of the action or that would be affected by a judgment in the action; (3) those against whom a judgment for divorce or annulment of marriage is sought. The effect of the present amendment of Rule 4(e) is to provide that personal service outside the state may be had only in cases where the defendant is of the first class. Thus, the mere presence of property within the state or a pending adjudication of marital status within the state will no longer be a basis for such service. The result is not, however, to eliminate personal service outside the state entirely in cases involving property or status. In such cases, whenever the defendant has sufficient contacts with Vermont to support a personal judgment against him, service outside the state will be proper under the amended rule. Thus, as the Court recognized in Shaffer v. Heitner, supra, at 207-08, in the ordinary case where the merits involve title to, possession of, or other rights in real or personal property and in a domestic relations case involving a marriage with Vermont contacts, a nonresident defendant may be served personally outside the state by virtue of amended Rule 4(e) and the long-arm statute. For example, not only the ordinary action concerning title to real estate, but also a real estate condemnation action will still be appropriate occasions for the exercise of long-arm jurisdiction. Defendant’s claim to or interest in the property is itself sufficient contact. See id. at 208. Moreover, in an action on a judgment obtained in a foreign state, property of a nonresident may be attached with long-arm service, because the underlying claims have already been litigated and responsibility for the satisfaction of valid debts is an attribute of ownership. See id. at 210, n. 36. In matrimonial actions the amended rule embodies the holding of Von Ohlsen v. Von Ohlsen, 137 Vt. 377, 406 A.2d 393 (1979), that jurisdiction under the long-arm statute exists to grant any appropriate relief in such an action, so long as there are sufficient contacts for such relief. Note also that, if contacts are otherwise sufficient, general attachment against a nonresident will also be proper. Rule 4(f) originally provided for service by mail upon defendants in the second and third classes recognized in former Rule 4(e) when personal service could not be had with due diligence. The amendment of Rule 4(f) preserves this form of service for those two classes of cases in situations where the defendant also has the necessary minimum contacts to support personal service under Rule 4(e). A further clean-up change in Rule 4(f) recognizes a change in postal procedures. Current postal regulations provide for “Restricted Delivery.” Mail so marked may be delivered either to the addressee or to a person whom he has specifically authorized to receive such mail on P.S. Form 3801 or by letter to the postmaster. The sender may request on P.S. Form 3811 a Restricted Delivery return receipt for delivery to addressee only, showing either to whom and date delivered or to whom, date and where delivered.

Reporter’s Notes—1975 Amendment: Rule 4(g)(1) is amended to provide that service by publication will be ordered only after the complaint is filed and to make clear that the showing required for issuance of the order is to be made by verified complaint or affidavit. The amended rule will also be applicable in the District Court, where the Civil Rule is incorporated by D.C.C.R. 4. This change, made simultaneously with the addition of Form 1A, corrects a possible ambiguity in the rules. Rule 4(g)(3) provides that service by publication is complete on the 21st day after the first publication. Under Rule 3, if the action has been commenced by service, the complaint need not be filed until 20 days after the completion of service. Under Rule 12(a), defendant must answer within the same period of time, unless the court expressly extends the time for answer in a case of service by publication. No problem arises in a case of personal service because defendant receives a copy of the complaint with the summons. In a case of service by publication, however, under the rules as originally promulgated, the time for answer might expire before a copy of the complaint was realistically available to the defendant through the clerk’s office, unless the court on its motion had extended the time in the original order of publication. If there has been no such extension, defendant might have had to move for more time under Rule 6 in order to be able to obtain a copy of the complaint. Under the amendment, this situation will not arise because the complaint must be filed before the order is issued. A defendant who wishes to answer will be apprised of the general nature of the action by the published notice (Form 1A) and will be able to obtain a copy of the complaint at the clerk’s office in ample time to answer. The amended rule has the further advantage of providing a copy of the complaint for the court that will issue the order, thus allowing judicial scrutiny of the statement of the action in the published notice. The amendment follows present practice in specifying that the showing of due diligence is to be made by verified complaint or affidavit.

Reporter’s Notes: This rule is based on Federal Rule 4 and prior Vermont statutes, with some further modifications drawn from Maine Rule 4. Rule 4(a) provides, in accordance with previous Vermont practice, that the summons is to be filled out by the plaintiff’s attorney (which under Rule 83(3) includes an unrepresented plaintiff) and by him delivered to the officer for service with a copy of the complaint. Cf. 12 V.S.A. §§ 654(a) (now superseded), 695. The rule follows Maine Rule 4(b) rather than Federal Rule 4(a), (c), under which it is the responsibility of the clerk to fill out and deliver the summons upon the filing of the complaint. The federal practice would be cumbersome and an undue burden upon the clerk’s office in view of the retention in Vermont Rule 3 of the possibility of commencement of the action by service in advance of filing. Rule 4(b) is based on the federal rule and Vermont practice. In accordance with the realistic provision of 12 V.S.A. § 654(a) (now superseded), the summons need be signed only by the plaintiff’s attorney or, if plaintiff has no attorney, by a judge or clerk. This procedure departs from the former chancery practice, which required the signature of clerk, master, or chancellor on process. 12 V.S.A. § 4314 (now superseded). The attorney’s signature subjects him to the sanctions of Rule 11, but no longer amounts to a recognizance for costs on his part. See Reporter’s Notes to Rule 3. The requirement of the federal rule that the summons be under seal is also omitted in accordance with Vermont practice. Cf. State v. Frotten, 114 Vt. 410, 413, 46 A.2d 921 (1946). The form of summons appears as Form 1 in the official Appendix of Forms. Rule 4(c) provides for service by those persons authorized under 12 V.S.A. §§ 691-700 or other relevant provision of law. See, e.g., 24 V.S.A. § 1941 (service by chief of police). Special exception is made for service of a subpoena, covered in Rule 45(c), and, to eliminate any doubt that mailing by plaintiff’s attorney is sufficient, for service by mail under Rule 4(f). Cf. 12 V.S.A. § 892 (mailing by plaintiff under nonresident motorist statute). The provision for service by a specially appointed person carries forward a procedure long available under 12 V.S.A. §§ 731-736. Pending legislation (1971-H. 326, §§ 35-40) would amend those sections to permit the flexible use of the appointment procedure contemplated by the rule. See 4 Wright & Miller, Federal Practice and Procedure § 1091 (1969). Rules 4(d)-(g) govern the manner of service of process. These subdivisions depart from the federal rule in important respects because of the different problems of state practice, but in general are based on Maine Rules 4(d)-(g). Rule 4(d) provides methods for personal service within the state. Rule 4(e) deals with personal service outside the state. Rules 4(f) and (g) contain special provisions for service by mail outside the state and service by publication. Rule 4(d)(1), based on the comparable federal and Maine rules, is similar to 12 V.S.A. § 811 (now superseded). The rule’s provision for service upon an agent effectuates the various statutes in which appointment of an agent to receive process is either required or implied in the conduct of certain activities. See, e.g., 12 V.S.A. §§ 891-893. The provision also includes agents appointed to receive process other than under statutory compulsion, whether by express contract or by operation of the law of agency. See, generally, 4 Wright & Miller §§ 1097, 1098. The rule permits leaving of process at the last place of abode when no suitable person is present only on motion and a showing of inability to make service by other methods. In such a case, the court has the option to permit service by publication when such service might be more effective, as when a dwelling house is abandoned. This change from previous practice not only eliminates a procedure subject to possible abuse but assures a record that will satisfy the due process clause when these forms of substituted service are used. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950); James, Civil Procedure 650-651 (1965). The two numbered subparagraphs of Rule 4(d)(1), based on comparable provisions of the Maine rule, are permissive only, reflecting prior Vermont practice, which did not require service upon the guardian of an infant or incompetent. See Potter v. Wright, Brayt. 21 (1816); King v. King, 102 Vt. 335, 148 A. 286 (1930). Service upon an infant or incompetent may be made as upon other defendants when, as in the case of an emancipated minor, due process notice requirements will be satisfied. The new provisions, however, indicate alternative steps which the careful attorney may take when there is any doubt about due process. Note that there is no requirement comparable to that of former Chancery Rule 7 that the process inform the court of defendant’s infancy or other legal disability. See Reporter’s Notes to Rule 17(b). Rules 4(d)(2)-(6), providing simplified means of service upon the state, its political subdivisions, and other public bodies, are based in general upon the comparable provisions of the Maine rule and previous Vermont practice. See 12 V.S.A. § 5601; 24 V.S.A. § 136 (in part superseded); Charleston v. Lunenburgh, 21 Vt. 488 (1849). Since these are public bodies, the more elaborate provisions of Rule 4(d)(7) for service upon private corporations are not necessary. Rule 4(d)(7) is based upon 12 V.S.A. § 813 (now superseded), which was in turn based on Federal Rule 4(d)(3). The provision for service upon an “agent authorized by appointment or by law” includes service upon a foreign corporation through the Secretary of State under 12 V.S.A. §§ 851-857. Note, however, that service other than upon the Secretary of State is now available as an alternative rather than only in the absence of appointment of the Secretary as under 12 V.S.A. § 854. Of course, service upon a foreign corporation under this subdivision will only establish personal jurisdiction when the corporation has had sufficient contact with the state to satisfy the requirements of due process. See Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952); McGee v. International Life Insurance Co., 355 U.S. 220 (1957). Service upon directors and employees and by leaving process at an office or place of business have been incorporated from Maine Rules 4(d)(8), (9). Rule 4(d)(8) is based upon 12 V.S.A. § 814, which was drawn from Federal Rule 4(d)(3). The rule only provides the means of service, leaving to the statute the questions of capacity for suit and the binding effect of a judgment. Rule 4(e) provides for personal service outside the state upon a “person” (including an individual, corporation, or other suable entity by virtue of 1 V.S.A. § 128, as amended by Act No. 207 of 1969) whose connection with the state is such as to permit the exercise of jurisdiction consistent with due process. The rule is based on prior Vermont practice and on Maine Rules 4(e) and (f). Paragraph (1) of the rule incorporates the language of Vermont’s “long-arm” statute, 12 V.S.A. § 913(b), enacted in 1968 in response to the Supreme Court’s invitation in Avery v. Bender, 124 Vt. 309, 313, 204 A.2d 314 (1964). The statute reaches to the outer limits permitted by the due process clause. Note that, as an alternative, service may still be had upon a nonresident under Rules 4(d)(1), (7), (8), by serving a statutory agent appointed expressly or by operation of law under such provisions as 12 V.S.A. §§ 851-857 (foreign corporations) and 12 V.S.A. §§ 891-892 (nonresident motorists). Paragraphs (2) and (3) of the rule provide for service in actions involving property or status within the state. See 12 V.S.A. § 913(a); 15 V.S.A. § 597. These matters are separately enumerated to make clear, as the final sentence of the subdivision expressly provides, that a judgment based upon such service affects only the property or status in suit. The simplified provisions of the rule as to how service should be made supersede 12 V.S.A. §§ 911, 912 and eliminate the requirement of an order of service. Rule 4(f), providing for service by mail, makes available for the actions embraced in Rules 4(e)(2) and (3), a procedure heretofore known in Vermont practice only in aid of substituted service upon a statutory agent under provisions such as 12 V.S.A. § 856. The rule, which is based on Maine Rule 4(f), clearly satisfies due process. See Travelers Health Asso. v. Virginia, 339 U.S. 643 (1950); cf. Hess v. Pawloski, 274 U.S. 352 (1927). It is limited to in rem and status actions because personal service should be required for actions in which the contact with the state may be less and defendant’s potential liability may be greater. Rule 4(g) simplifies the use of service by publication, which was previously available in Vermont in the case of numerous defendants in in rem actions under 12 V.S.A. § 816, as a supplement to other forms of service upon an absent defendant under 12 V.S.A. §§ 914, 4319, all of which are now superseded, and in certain special cases. See 12 V.S.A. § 4987 (forfeiture of a grant); 12 V.S.A. § 5165 (partition of real estate). Under the rule, service by publication is available in any action against a party who could be served outside the state under Rule 4(e), which includes all defendants whose contact with the state is sufficient to permit the exercise of jurisdiction if adequate notice is given. The principal change from prior practice is that upon motion and a proper showing any type of action may be commenced by published service without satisfying the requirement of 12 V.S.A. § 914 for an actual attempt at some other form of service. While the showing under the rule is thus less formal than that required previously, service by publication must still satisfy due process by being “not substantially less likely to bring home notice than other of the feasible and customary substitutes.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315-318 (1950). The procedure under the rule is similar to that embodied in 12 V.S.A. § 914 and former County Court Rule 33 (made applicable in chancery by virtue of former Chancery Rule 56). The rule’s provisions as to newspaper publication should be interpreted in accordance with 1 V.S.A. § 174. The affidavit to be filed by plaintiff under Rule 4(g)(3) may be that of anyone having knowledge of the facts of publication, including the publisher or plaintiff’s attorney. The provisions of 12 V.S.A. §§ 916-922 for a writ of review of a default judgment entered after service by publication are superseded by the provisions of Rules 55(c) and 60(b) for the setting aside of defaults in the court’s discretion on various grounds. See Reporter’s Notes to Rules 55, 60. Rule 4(h) is derived from 12 V.S.A. § 658 (now superseded). Rule 4(i) is based on Federal Rule 4(g) and Maine Rule 4(h). The requirement of return to the plaintiff’s attorney and filing by him with the court is similar in effect to practice under 12 V.S.A. §§ 772, 4315 (now superseded), requiring plaintiff to see to the entry of the action. The rule, which gives plaintiff’s attorney a final opportunity to check the accuracy of process and return, is consistent with Rule 4(a), providing that he shall fill out and deliver the summons for service. Indorsement of fees, changes, and mileage is, by virtue of 12 V.S.A. § 780, a prerequisite to allowance of these items to the process server. The provision of the rule that failure to make proof of service does not affect its validity is not meant to excuse a material defect, which would go to the jurisdiction, but merely to emphasize that if the defect is one of form it may be cured by amendment under Rule 4(j). See 4 Wright & Miller § 1130; Chapman v. Chapman, 118 Vt. 120, 100 A.2d 584 (1953). The last two sentences of the subdivision, taken from the Maine rule, are of great importance because the time within which the defendant must answer is measured from the date of service. Rule 4(j) is taken from Federal Rule 4(h). The rule is virtually identical to 12 V.S.A. § 656a (now superseded), which was based on the federal rule. Rule 4(k) is based on Federal Rule 4(i), as modified in Maine Rule 4(j) to take account of differences between state and federal practice. The rule, which was developed collaboratively by the Commission and Advisory Committee on International Rules of Judicial Procedure and the Federal Advisory Committee on Civil Rules, gives Vermont lawyers an internationally recognized and widely followed means of service in foreign countries.