CHAPTER 287
(SCR 05-01)
In the Matter of the Amendment of SDCL 15-6-4(d).
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
IN THE MATTER OF THE AMENDMENT
OF SDCL 15-6-4(d) RULE 05-01
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A hearing was held on February 17, 2005, at Pierre, South Dakota, relating to the
amendment of SDCL 15-6-4(d), and the Court having considered the proposed amendment, the
correspondence and oral presentations relating thereto, if any, and being fully advised in the
premises, now, therefore, it is
ORDERED that SDCL 15-6-4(d) be and it is hereby amended to read in its entirety as
follows:
15-6-4(d).
Personal service of summons.
The summons shall be served by delivering a copy
thereof. Service in the following manner shall constitute personal service:
(1)
If the action be is against a domestic private corporation business entity, on the
president, partner or other head of the corporation, secretary, cashier, treasurer, a entity,
officer, director, or managing or registered agent thereof, and such service may be made
within or without this state. In case the sheriff shall return the summons with his
certificate that no such officer, director, or agent can. If any of the above cannot be
conveniently be found in his county, service may be made by leaving a copy of the
summons and complaint at any office of such corporation business entity within this
state, with the person in charge of such office;
(i) A business entity for purposes of this subdivision shall include, but not be limited
to:
(A) Domestic and foreign corporations;
(B) Domestic and foreign partnerships;
(C) Limited liability companies;
(D) Entities with fictitious names; and
(E) Any entity required to have a registered agent with the secretary of state;
(2)
If the action be against a foreign private corporation, on the president or other head of
the corporation, secretary, cashier, treasurer, a director or managing agent thereof;
(3)
In an action against a railroad corporation or against a person, firm, or corporation
operating an elevator or licensed warehouse in this state, service may be made by
serving any of the persons mentioned in subparagraphs (1) and (2) of this subsection,
or by service upon any acting ticket, station, or freight agent of a railroad company or
upon any acting agent in charge of any such elevator or warehouse, in the county where
the action or proceeding is commenced;
(4)
If the action be is against a public corporation within this state, service may be made as
follows:
(i)
Upon a county, by serving upon any county commissioner;
(ii)
Upon a first or second class municipality, by serving upon the mayor or any
alderman or commissioner;
(iii)
Upon a third class municipality, by serving upon any trustee;
(iv)
Upon an organized township, by serving upon any supervisor; and
(v)
Upon any school district, by serving upon any member of the school board or
board of education; and
(vi)
Upon a consumers power district, by serving upon any member of the board of
directors;
(5)(3)
If the action be is against a minor, upon a parent or person having custody, and if the
minor be is over the age of fourteen years, then also upon such minor personally, and
in any event upon the legally appointed guardian, guardian ad litem or conservator, if
there be is one. If a guardian ad litem has been appointed, such service shall also be
made on such guardian ad litem;
(6)(4)
If the action be is against a person judicially declared to be mentally incompetent, or
who is a patient at an institution for persons with mental illnesses or developmental
disabilities or for whom a guardian or conservator has been legally appointed, upon
such guardian or conservator, and upon the administrator or superintendent of such
institutions for persons with mental illnesses or developmental disabilities, or person
having custody, and also upon the person with mental illness or a developmental
disability; provided that if the person with mental illness or a developmental disability
is a patient of an institution for persons with mental illnesses or developmental
disabilities, and the administrator or superintendent thereof shall certify in writing that
service upon such person personally would be unavailing or injurious to his physical or
mental well-being, and such certificate be filed, service upon such individual may be
dispensed with by order of court;
(7)(5)
If the action is against the state or any of its institutions, departments, or agencies, by
service upon such officer or employee as may be designated by the statute authorizing
such action, and upon the attorney general. In all matters involving title to land owned
or held in trust by the state or any of its institutions, departments, or agencies, upon the
commissioner of school and public lands and the attorney general. In all matters other
than those involving title to such lands, if no officer or employee is designated, then
upon the Governor and the attorney general. Any of such officers or employees referred
to in § 15-6-4 may admit service of the summons with the same legal effect as if it had
been personally served upon them by an officer or elector;
(8)(6)
If the action be is against a state officer, employee or agent arising out of his office,
employment or agency, a copy of the summons and complaint shall be mailed, certified
mail, postage prepaid to the attorney general together with an admission of service and
a return envelope, postage prepaid, addressed to the sender. The executed admission of
service shall be filed by the sender in accordance with § 15-6-5(d);
(9)(7)
Whenever the manner of service of process is specified in any statute or rule relating to
any action, remedy or special proceedings the manner of service so specified shall be
followed;
(10)(8)
In all other cases, to the defendant personally; and
(11)
If the action be against a business with a fictitious name, upon the owner or other head
of the business, secretary, cashier, treasurer, director, manager or bookkeeper thereof,
and such service may be made within or without this state.
(12)(9) In an If the action is against a person or business entity in a foreign country,
service may be made as follows:
(i)
By an internationally agreed means reasonably calculated to give notice, such as
those means authorized by the Hague Convention on the service abroad of
judicial and extrajudicial documents; or
(ii)
If there is no internationally agreed means of service, service reasonably
calculated to give notice may be made:
(A)
In the manner prescribed by the law of the foreign country for service in
that country in an action in any of its court of general jurisdiction;
(B)
As directed by the foreign authority in response to a letter rogatory or
letter request; or
(C)
Unless prohibited by the law of the foreign country; by one delivery to the
individual personally; upon a corporation, limited liability company,
limited partnership or partnership or association, by delivery to an officer,
or a managing or, general or registered agent; or by any form of mail
requiring a signed receipt; or
(iii)
As directed by the court.
Service under this subdivision may be made by any person authorized by § 15-6-4(c), anyone
duly authorized to serve lawful summons by the law of the country where service is to be made,
pursuant to the applicable treaty or convention, or by anyone designated by order of the court or
the foreign court. Proof of service may be made as prescribed in § 15-6-4(g), pursuant to the
applicable treaty or convention, by order of the court, or by law of the foreign country. Proof of
service by mail shall include an affidavit or certificate of addressing and mailing.
IT IS FURTHER ORDERED that this rule shall become effective immediately.
DATED at Pierre, South Dakota, this 25th day of February 2005.