How Indiana's Proposed Rule Changes Could Affect Process Serving

• November 27, 2023
• by Jeff Karotkin
• Articles

The Indiana Supreme Court just published proposed Trial Court Rule 4 changes that, if adopted, will impact the Service of Process on Individuals and the Service of Process on Organizations.

The Supreme Court invites comments on these proposed rule changes until 12:00 p.m. (Eastern) on Friday, December 15, 2023. The proposed changes can be found here.

The proposed changes address several other Trial Court Rules. Still, I will focus on those that could have a material impact on the service of civil process for individuals and organizations.

First Proposed Change

The first proposed change is to Rule 4.1 Copy Service to Be Followed With Mail (A) 3 and 4. The existing language is as follows:

(3) leaving a copy of the summons and complaint at his dwelling house or usual place of abode; or (4) serving his agent as provided by rule, statute or valid agreement.

Sections 3 and 4 address service of process by other than personal service.

The Proposed changes are in red text. I’m not an expert on Indiana Trial Court Rule 4, but it seems to me that this proposed change is a clarifying improvement that may result in ensuring the party being served receives actual notice, which is more administrative in nature and doesn’t pose a potential threat to the process serving industry.

Second Proposed Change

The second proposed change is to Rule 4.6 Service Upon Organizations (B) Manner of Service. The existing language is as follows:

(B) Manner of service. Service under subdivision (A) of this rule shall be made on the proper person in the manner provided by these rules, for service upon individuals. Still, a person seeking service or his attorney shall not knowingly direct service to be made at the person’s dwelling house or place of abode, unless such is an address furnished under the requirements of a statute or valid agreement or unless an affidavit on or attached to the summons states that service in another manner is impractical.

(C) Service at organization’s office. When shown upon an affidavit or in the return, that service upon an organization cannot be made as provided in subdivision (A) or (B) of this rule, service may be made by leaving a copy of the summons and complaint at any office of such organization located within this state with the person in charge of such office.

The proposed changes are in red text. The first sentence is mainly minor changes to the existing intent of the rule. The addition of the last sentence is noteworthy and potentially problematic for those process servers who are currently hand-delivering documents to registered agents. Specifically, a registered agent can be served electronically if it consents to that service.

I did some quick checking to find anything in the existing Trial Court Rules that either define electronic service or the process by which a registered agent on a party to an action could consent to service under the provisions in Rule 4. That search came up empty, so either I didn’t know where to find it, or what I was looking for doesn’t exist. The closest thing I could find was in Rule 5, which approves electronic filing and service for pleadings. My understanding of Rule 5 is that it doesn’t apply to case-initiating documents. It seems to me that if this change expressly authorizes a manner of service, that manner of service should be defined somewhere.

Someone who is an expert on Indiana statutes could chime in and let me know if I missed a rule or other authority approving electronic service. Then again, perhaps an authorizing rule is unnecessary if the parties willingly consent to electronic service for that case…

One of the things I find interesting about the proposed change is that it says a “registered agent that has consented.” It doesn’t say a party that has consented. Again, I’m no expert, but I have to wonder if a registered agent can consent on behalf of the party to the action. Assuming they can, does that consent apply to all entities they may be the registered agent for?

Third Proposed Change

The third proposed change is to Rule 4.14 (b) Service Under Special Order of Court. The existing is as follows:

(B) Service under special order of court. Upon application of any party the court in which any action is pending may make an appropriate order for service in a manner not provided by these rules or statutes when such service is reasonably calculated to give the defendant actual knowledge of the proceedings and an opportunity to be heard.

This existing rule addresses how to authorize an alternative manner of service where a party can demonstrate that they have exhausted other traditional manner of service and need a special order of the court to approve another manner of service that is reasonably calculated to give the defendant actual notice.

The proposed changes are in red text. As you can see, the proposed change provided some clarifying language, making it more apparent how and what is required to get an alternative manner of service approved by the court. The last sentence is new and another example of how modern technology could be used to provide actual notice reasonably.

This change isn’t likely to have a material impact on the process serving industry in Indiana unless they can find a way to insert themselves in a motion to be a disinterested third party (process server) that would provide the court with a return of service attesting to how they performed the alternative service. Along these lines, ServeManager subscribers have access to our digital service of process workflow that is intended to help our clients address this type of use case. You can find information about that workflow here.

Indiana would become one of many states, including Utah, Texas, and Illinois, to adopt service of process rule changes that allow for electronic service by itself or as an approved alternative manner of service for case-initiating documents.