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 plaintiff’s 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 by 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 plaintiff’s request and upon payment of applicable fees and costs, service 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 substituted 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 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 to 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 to 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. If 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 if 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. If 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 or,. 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 by 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 in the same manner as service upon a domestic private corporation as set forth in Rule 4(d)(4)(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 plaintiff's 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, 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, agent, 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 4(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 required. 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. Rule 4.1 Service of other process. (a) Generally. Whenever an order of court provides for service of a rule, or of an order in lieu of summons or a rule, upon a party, service shall be made in the manner provided in Rule 4(d), unless the order prescribes a different mode of service. Rule 45 governs the service of subpoenas. (b) Process part of record. Original, mesne, and final writs and process of every nature, and proofs of service and returns endorsed thereon, and all orders and notices served or published, and all proofs of service and certificates of publication and all other documents filed in relation to such process, orders, and notices, are a part of the record of an action for all purposes. Rule 5. Serving and filing pleadings and other documents. (a) Service: when required. (1) In general. Unless these rules provide otherwise, each of the following documents shall be served on every party: (A) an order stating that service is required; (B) a pleading filed after the original complaint, unless the court orders otherwise under Rule 5(c) because there are numerous defendants; (C) a discovery document required to be served on a party, unless the court orders otherwise; (D) a written motion, except one that may be heard ex parte and (E) a written notice, appearance, demand, offer of judgment, designation of record on appeal, or any similar document. (2) If a party fails to appear. No service is required on a party who is in default for failing to appear except as provided in Rule 55(b)(2). However a pleading that asserts a new claim for relief against such a party shall be served on that party under Rule 4. (b) Service: How made. (1) Serving an attorney . If a party is represented by an attorney, service under this rule shall be made on the attorney unless the court orders service on the party. (2) Service in general . A document is served under this rule by: (A) handing it to the person; (B) leaving it: (i) at the person's office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or (ii) if the person has no office at the person's dwelling or usual place of abode with someone the age of 18 or above and of suitable discretion who resides there; (C) mailing it to the person’s last known address—in which event service is complete upon mailing; (D) leaving it with the court clerk if the person has no known address; (E) in counties where West Virginia E-Filing is utilized, by electronic service pursuant to Rule 15 of the West Virginia Trial Court Rules, or otherwise by sending it by facsimile transmission pursuant to Rule 12 of the West Virginia Trial Court Rules; (F) sending it by other electronic means if the person consented in writing—in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served; or (G) delivering it by any other means that the person consented to in writing—in which event service is complete when the person making service delivers it to the agency designated to make delivery. (c) Serving numerous defendants. (1) In general. If an action involves an unusually large numbers of defendants, the court may, on motion or on its own order that: (A) defendants’ pleadings and replies to them need not be served on other defendants; (B) any crossclaim, counterclaim, avoidance or affirmative defense in those pleadings and replies to them will be treated as denied or avoided by all other parties and (C) filing any such pleading and serving it on the plaintiff constitutes notice of the pleading to all parties. (2) Notifying parties. A copy of every such order shall be served on the parties as the court directs. (d) Filing; certificate of service. (1) Any document after the complaint that is required to be served upon a party, together with a certificate of service, shall be filed within a reasonable time after service. But disclosures under Rule 26(a)(1) or (2), and the following discovery requests and responses, shall not be filed until they are used in the proceeding or the court orders filing: depositions, interrogatories, requests for documents or tangible things or to permit entry onto land, and requests for admission. Certificates of service of discovery materials shall be filed. Unless otherwise stipulated or ordered, the party taking a deposition or obtaining any material through discovery is responsible for its custody, preservation, and delivery to the court if needed or ordered. Such responsibility shall not terminate until one year after final disposition of the action. The responsibility shall not terminate upon dismissal of any party while the action is pending. The custodial responsibility of a dismissed party may be discharged by stipulation of the parties to transfer the custody of the discovered material to one or more of the remaining parties. (2) Electronic filing, signing or verification. A court may allow documents to be filed, signed or verified by electronic means. A document filed electronically is a written document for purposes of these rules. Filing by facsimile is permitted pursuant to the Supreme Court of Appeals Rules for Filing and Service by Facsimile Transmission. Electronic filing and service may be permitted pursuant to the West Virginia Trial Court Rules. (3) Non-electronic filing. A document not filed electronically is filed by delivering it: (A) to the clerk; or (B) to a judge who agrees to accept it for filing, and who shall then note the filing date on the document and promptly send it to the clerk. Rule 5.1. [Reserved.] Rule 5.2. Privacy protection for filings made with the court. (a) Confidential filings. Whenever a party files a pleading or other document that is confidential in part or in its entirety, the party shall identify, by cover letter or otherwise, in a conspicuous manner, the portion of the filing that is confidential. A pleading or other document that is confidential in part or in its entirety shall be filed conventionally with the clerk. Any party or other person with standing may file a motion to unseal the case record or portion of a case record, setting forth good cause why the case record should no longer be confidential. An opposing party may respond to the motion within ten days from the date of filing of the motion. Upon its consideration, a court may, in its discretion, issue an order unsealing all or part of the case record, or issue an order denying the motion. Any party or other person with standing may file a motion to seal the case record or portion of a case record. The motion shall state the legal authority for confidentiality. Upon filing of the motion to seal, the case record or portion of the case record that is the subject of the motion shall be kept confidential pending a ruling on the motion. An opposing party may file a response to a motion to seal within ten days of the date of filing of the motion. Upon its consideration, the court may, in its discretion, issue an order sealing all or part of the case record, or issue an order denying the motion. (b) Personal identifiers restricted. In order to protect the identities of juveniles and in order to avoid the unnecessary distribution of personal identifiers, any document filed with a trial court shall comply with the following standards. (1) Initials or a descriptive term shall be used instead of a full name in: cases involving juveniles, even if those children have since become adults; cases involving crimes of a sexual nature that require reference to the victim of such crime; abuse and neglect cases; mental hygiene cases; and cases relating to expungements. (2) Personal identifiers such as birth date and address may be used only when absolutely necessary to the disposition of the case. (3) Social Security numbers may not be used. The last four digits should be utilized only. (4) Sensitive financial information may be used only when necessary to the disposition of the case. The last four digits of financial account information should be utilized only. (c) Exemptions from the redaction requirement. The redaction requirement does not apply to the following: (1) the record of an administrative or agency proceeding; (2) the official record of a court proceeding; or (3 ) the record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed; or. (d) Filings made under seal for good cause shown. The court may, for good cause shown, order that a filing be made under seal without redaction. The court may later for good cause shown, unseal the filing or order the person who made the filing to file a redacted version for the public record. (e) Protective orders. For good cause, the court may: (1) order redaction of additional information; (2) limit or prohibit a non-party's access to a document filed with the court; or (3) enter a Medical Protective Order governing production of medical records and bills in a civil action. A proposed Medical Protective Order is set forth at Form 23. (4) enter a general Protective Order governing production of confidential materials in a civil action. A proposed Protective Order (Confidentiality) is set forth at Form 24. (f) Option for additional unredacted filing under seal. A person making a redacted filing may also file an unredacted copy under seal. The court shall retain the unredacted copy as part of the record. (g) Option for filing a reference list. A filing that contains redacted information may be filed with a reference list that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The list shall be filed under seal and may be amended as of right. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information. (h) Waiver of protection of identifiers. A person waives the protection of this Rule as to the person's own information by filing it without redaction and not under seal.