W.Va. R. Civ. P. 4

As amended through January 31, 2024

Rule 4 - [Effective 1/1/2025] Summons

(a) Contents and amendments.

(1)Contents. A summons shall:

(A) name the court and the parties:

(B) be directed to the defendant:

(C) state the name and address of plaintiffs attorney or, if unrepresented, of the plaintiff:

(D) state the time within which the defendant shall appear and defend;

(E) notify the defendant that a failure to appear and defend may result in a default judgment against the defendant for the relief demanded in the complaint;

(F) be signed by the clerk; and

(G) bear the court's seal,

(2)Amendments. The court may permit a summons to be amended.

(b) Issuance. On or after filing the complaint, the plaintiff shall present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk shall sign, seal and issue it to the plaintiff for service on the defendant . A summons, or a copy that is addressed to multiple defendants, shall be issued for each defendant to be served.

(c) Service

(1)In general. A summons shall be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed y Rule 4(i) and shall furnish the necessary copies to the person who makes service.

(2)By whom.

(A) A person who is at least 18 years old and not a party may serve a summons and complaint.

(B) At the plaintiffs request and upon payment of applicable fees and costs services may be made by the sheriff.

(C) At the request of the plaintiff and upon payment of applicable fees and costs by the plaintiff, the clerk shall serve the West Virginia Secretary of State as statutory attorney-in-fact for service as specified by any applicable statute.

(D) A party may, upon payment of applicable fees, serve the West Virginia Secretary of State as statutory attorney-in- fact for service as specified by any applicable statute.

(E) Upon payment of applicable fees, by either certified mail or by first class mail, as directed by the plaintiff.

(d) Manner of service. Service may be effectuated by personal or substitute service and shall be made upon:

(1)Individuals. An individual, other than a minor, incompetent person or incarcerated person within the State of West Virginia by:

(A) Personal delivery;

(B) Leaving a copy of the summons and complaint at the individual's dwelling or usual place of abode with someone the age of 18 or above who resides there;

(C) Delivering a copy to an agent or attorney-in-fact authorized by appointment or statute to receive service of process for the individual;

(D) Sheriff:

(E) Secretary of State:

(F) Certified mail from the clerk. The clerk may send a copy of the summons and complaint by certified mail, return receipt requested, and delivery restricted to the individual to be served; or

(G) First class mail from the clerk. The clerk may send a copy of the summons and complaint by first class mail, postage pre-paid, together with two copies of a notice and acknowledgement conforming substantially to Form and 11 with a return envelope, postage pre-paid and addressed to the clerk, to the individual to be served.

The plaintiff shall furnish the person making service with such copies of the summons and complaint or order as are necessary and shall pay the costs of service. For service by certified mail from the clerk, the plaintiff shall pay the clerk a fee of twenty dollars for each complaint to be served. For service by first class mail from the clerk, the plaintiff shall pay the clerk a fee of five dollars for each complaint to be served.

Service pursuant to Rule 4 (d)(1)(F) or (G) shall not be the basis for the entry of a default or a judgment by default unless the record contains a return receipt showing acceptance by the defendant or a return envelope showing refusal of the certified mail by the defendant. If delivery of the summons and complaint pursuant to Rule 4(d)(1)(F) or (G) is refused, the clerk, promptly upon receipt of the notice of such refusal, shall mail to the defendant, by first class mail, postage prepaid, a copy of the summons and complaint and a notice that despite such refusal, the case will proceed and that judgment by default may be rendered against the defendant unless the defendant appears to defend the suit. Any such default or judgment by default shall be set aside pursuant to Rule 55 (c) or Rule 60(b) if the defendant demonstrates to the court that the return receipt was signed by or delivery was refused by an unauthorized person.

The notice and acknowledgement of receipt of the summons and complaint pursuant to Rule 4(d)(1)(G) shall be executed in the manner prescribed on Form 11. Unless good cause is shown for failure to complete and return the notice and acknowledgement of receipt of the summons and complaint pursuant to Rule 4 (d)(1)(G) within 21 days after mailing, the court may order the payment of the cost of personal service by the individual to be served.

Service pursuant to Rule 4(d)(1)(G) shall not be the basis for entry of default or judgment by default unless the record contains a notice and acknowledgement of receipt of the summons and complaint. If no acknowledgement of service pursuant to Rule 4(d)(1)(G) is received by the clerk within 21 days after the date of mailing, service of such summons and complaint shall be made under subdivisions Rule 4(d)(1)(A), (B), (C), (D) or (E).

(2)A minor or incompetent person. A minor or an incompetent person in West Virginia shall be served by delivering a copy of the summons and complaint to the infant's or incompetent person's guardian or conservator who is resident in the State. lf there be no such guardian or conservator, then to either the infant's or incompetent person's father or mother if they be found in the State. If there is no such guardian or conservator and the father or mother cannot be found in the State, service shall be made upon a guardian ad litem appointed under Rule 17(c). But, if any of the persons upon whom service is directed to be made by this paragraph is a plaintiff, then service shall be upon the person who stands first in the order named in this paragraph who is not a plaintiff.

(3)Incarcerated persons. Upon a person confined in the penitentiary or jail of this or any other state, or of the United States, by delivering a copy of the summons and complaint to that person's committee, guardian or like fiduciary resident in the State. If there be no such committee, guardian or like fiduciary, or if the committee, guardian or like fiduciary is a plaintiff, then service shall be made upon a guardian ad litem appointed under Rule 17(c).

(4)Corporations, partnerships or associations.

(A) Domestic private corporations. Service upon a domestic private corporation by:

(1) delivering or mailing in accordance with Rule 4(c)(2) a copy of the summons and complaint to an officer, director, or trustee thereof. lf no such officer, director, or trustee be found in the State, by delivering a copy thereof to any agent of the corporation including, in the case of a railroad company, a depot or station agent in the actual employment of the company; but excluding, in the case of an insurance company, a local or soliciting agent; or

(2) delivering or mailing in accordance with Rule 4(c)(2) a copy of the summons and complaint to any agent or attorney-in-fact authorized by appointment or by statute to receive or accept service of process on its behalf.

(B) Domestic public corporations.

(1) City, town or village by delivering or mailing in accordance with Rule 4(c)(2) a copy of the summons and complaint to its mayor, city manager, recorder, clerk, treasurer; or any member of its council or board of commissioners;.

(2) County commission or other tribunal created to transact county business by delivering or mailing in accordance with Rule 4(c)(2) a copy of the summons and complaint to any commissioner or the clerk thereof. if they be absent, to the prosecuting attorney of the county.

(3) Board of education by delivering or mailing in accordance with Rule 4(c)(2) a copy of the summons and complaint to the president or any member thereof. If they be absent, to the prosecuting attorney of the county.

(4) Other domestic public corporations, including state agencies by delivering or mailing in accordance with Rule 4(c)(2) a copy of the summons and complaint to any officer, director or governor thereof or by delivering or mailing in accordance with Rule 4(c)(2) a copy of the summons and complaint to an agent or attorney-in-fact authorized by appointment or statute to receive or accept service on its behalf.

(C) Foreign corporations and business trusts qualified to do business in the State by delivering or mailing in accordance with Rule 4(c)(2) a copy of the summons and complaint as in the same manner as service upon a domestic private corporation as set forth in Rule 4(d)(A).

(D) Foreign corporations and business trusts not qualified to do business in the State by delivering or mailing in accordance with Rule 4(c)(2) a copy of the summons and complaint to any officer, director, trustee, or agent of such corporation or by delivering or mailing in accordance with Rule 4(c)(2) a copy of the summons and complaint to any agent or attorney-in-fact authorized by appointment or by statute to receive or accept service on its behalf.

(E) Unincorporated associations subject to suit under a common name, but delivering in accordance with Rule 4(c)(2) a copy of the summons and complaint to any officer, director or governor thereof or to any agent or attorney-in-fact authorized by appointment or by statute to receive or accept service on its behalf. If no such officer, director, governor or appointed or statutory agent or attorney-in-fact be found in the State, then by delivering or mailing in accordance with Rule 4(c)(2) a copy of the summons and complaint to any member of such association and publishing notice of the pendency of such action once a week for two successive weeks in a newspaper of general circulation in the county wherein such action is pending. Proof of publication of such notice is made by filing the publisher's certificate of publication with the court.

(e)Constructive service.

(1)Service by publication. If the plaintiff files with the court an affidavit:

(A) That the defendant is a foreign corporation or business trust for which no officer, director, trustee, agent or appointed or statutory agent or attorney-in-fact is found in the State upon whom service may be had; or

(B) That the defendant is a nonresident of the State for whom no agent or appointed or statutory attorney-in-fact is found in the State upon whom service may be had; or

(C) That the plaintiff has used due diligence to ascertain the residence or whereabouts of the defendant, without effect; or

(D) That process, delivered to the sheriff of the county in which the defendant resides or is, has twice been delivered to such officer and has been returned without being executed; or

(E) That there are or may be persons, other than those named in the complaint as plaintiff and defendant interested in the subject matter of the action; whose names are unknown to the plaintiff and who are made defendants by the general description of unknown defendants; then the clerk shall enter an order of publication against such named and/or unknown defendants. Every order of publication shall state the caption of the action; the object thereof; the name and address of the plaintiffs attorney, if any; that a copy of the complaint may be obtained from the clerk; and that each named and/or unknown defendant shall appear and defend on or before a date set forth in the order, which shall be not fewer than 30 days after the first publication thereof; otherwise, that judgment by default may be rendered against the defendants at any time thereafter. Every such order of publication shall be published once a week for two successive weeks (or such period as may be prescribed by statute, whichever period is longer) in a newspaper of general circulation in the county where such action is pending. Proof of service by publication is made by filing the publisher's certificate of publication with the court.

(2)Service by mailing. When plaintiff knows the residence of a defendant upon whom service has been unsuccessfully attempted as described in Rule 4(e)(1)(D), or when plaintiff knows the residence of a nonresident defendant or the principal office of a nonresident defendant foreign corporation or business trust for which no officer, director, trustee, agents or appointed or statutory agent or attorney in fact is found in the State upon whom service may be had, plaintiff shall obtain constructive service of the summons and complaint upon such defendant by the method set forth in Rule (d)(1)(D). The summons in such instance shall notify the defendant that the defendant shall appear and defend within 30 days of the date of mailing pursuant to Rule 4(d)(1)(D); otherwise, that judgment by default may be rendered against the defendant at any time thereafter. However, service pursuant to Rule 4(d)(1)(D) shall not be the basis for the entry of a judgment by default unless the record contains a return receipt showing acceptance by the defendant or a return envelope showing refusal of the certified mail by the defendant. If delivery of the summons and complaint sent by certified mail is refused, the clerk, promptly upon notice of such refusal, shall mail to the defendant, first class mail, postage prepaid, a copy of the summons and complaint and a notice that despite such refusal the case will proceed and that judgment by default will be rendered against defendant unless defendant appears to defend the suit. If plaintiff is unable to obtain service of the summons and complaint upon such defendant by use of the method set forth in Rule 4(d)(1)(D), then, upon affidavit to such effect filed with the court, the clerk shall issue an order of publication, and the procedures described in subdivision (e)(1) shall be followed to effectuate constructive service.

(f) Personal service outside State. Personal service of a copy of the summons and complaint may be made outside of this State on any defendant. If any such defendant be then a resident of this State and if the plaintiff shall, during the pendency of the action, file with the court an affidavit setting forth facts showing that the defendant is such a resident, such service shall have the same effect as personal service within this State and within the county of the defendant's residence; otherwise, such service shall have the same effect as constructive service. In either case, the summons shall notify the defendant that the defendant shall appear and defend within 30 days after service, otherwise judgment by default may be rendered against the defendant at any time thereafter.

(g) Summons; service thereof in addition to constructive service. The plaintiff may, at any time before judgment, have a copy of the summons and complaint served on a defendant in the manner provided by subdivisions (d) or (f) of this rule, although constructive service under subdivision (e) of this rule has been made. After such service under subdivision (d) of this rule, the action shall proceed as in other cases of personal or substituted service within the State; and after such service under subdivision (f) of this rule, the action shall proceed as in other cases of personal or constructive service.

(h)Proving service.

(1)Affidavit rewired. Proof of service shall be made to the court. Except for service by a deputy sheriff, proof shall be by the server's affidavit.

(2)Validity of service amending proof . Failure to prove service does not affect the validity of service. The court may permit proof of service to be amended.

(i) Time limit for service. If a defendant is not served within 120 days after the complaint is filed, the court on motion or on its own after notice to the plaintiff shall dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

W.va. R. Civ. P. 4

Amended effective 1/1/2025.