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Serving a Summons – when is a copy not a copy?
Serving a Summons
When a Complaint is served on a defendant, it is accompanied by a Summons that instructs the defendant to file an answer within a certain amount of time.
Service of a summons is, in most cases, governed by Rule 4 of the Mississippi Rules of Civil Procedure. Rule 4 provides for service in several different ways, including:
- mailing a “copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment”;
- sending a “copy of the summons and complaint” to an out-of-state defendant by certified mail, return receipt requested;
- delivering a “copy of the summons and of the complaint” to the defendant personally or to an agent authorized by appointment or by law to receive service of process;
- a corporation, partnership or other unincorporated association can be served by “delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.”
So, a defendant can be served with a “copy” of the summons and complaint, right?
Wrong, says the Mississippi Supreme Court.
In Bilbo v. Thigpen , 647 So. 2d 678, 691 (Miss. 1994), the Supreme Court held that “while the word ‘complaint’ sometimes refers to a duplicate copy, the word ‘summons’ means an original, not a duplicate or photocopy.” Because the defendant received a copy of the summons, process was not properly effected.
It is correct, as the Bilbo court noted, that some portions of Rule 4 refer to the “summons and a copy of the complaint.” This was the basis of the Court’s ruling that the summons must be an original.
Yet, the Court paid no attention to the multiple places in the Rule which plainly state that the defendant is to be served with a copy of the summons.
This may be much ado about nothing. Yet, if a plaintiff serves a copy of the summons on a defendant and later obtains a default judgment, Bilbo may provide the basis for setting that default judgment aside.
Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110
601-607-3156
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