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STATE OF OKLAHOMA
2nd Session of the 58th Legislature (2022 )
HOUSE BILL 3381 By: Moore
AS INTRODUCED
An Act relating to civil procedure; amending 12 O.S.
2021, Section 2004, which relates to service of
process; adding method of service for individuals;
and providing an effective date .
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 12 O.S. 2021, Section 2004, is
amended to read as follows:
Section 2004.
PROCESS
A. SUMMONS: ISSUANCE. Upon filing of the petition, the clerk
shall forthwith issue a summons. Upon re quest of the plaintiff
separate or additional summons shall issue against any defendants.
B. SUMMONS: FORM.
1. The summons shall be signed by the clerk, be under t he seal
of the court, contain the name of the court and the names of the
parties, be directed to the defendant, state the name and address of
the plaintiff's attorney, if any, otherwise, the plaintiff 's
address, and the time within which these rules requir e the defendant
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to appear and defend, and shall notify the defendant that in case of
failure to appear, judgment by default will be rendered against the
defendant for the relief demanded in the petition.
2. A judgment by default shall not be different in kind from or
exceed in amount that prayed for in either the demand for judgment
or in cases not sounding in contract in a notice which has been
given the party against whom default judgment is sought. Except as
to a party against whom a judgment is entere d by default, every
final judgment shall grant the relief to which the party in whose
favor it is rendered is entitled, even if the party has not demanded
such relief in his or her pleadings.
C. BY WHOM SERVED: PERSON TO BE SERVED.
1. SERVICE BY PERSONA L DELIVERY.
a. At the election of the plaintiff, process, other than
a subpoena, shall be served by a sheriff or deputy
sheriff, a person licensed to make service of process
in civil cases or a person specially appointed for
that purpose. The court shall freely make special
appointments to serve all process, other than a
subpoena, under this p aragraph.
b. A summons to be served by the sheriff or deputy
sheriff shall be delivered to the sheriff by the court
clerk or an attorney of record for the plaintiff.
When a summons, subpoena or other process is to be
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served by the sheriff or deputy sherif f of another
county, the court clerk shall mail it, together with
the voucher of the court clerk for the fees collected
for the service, to the sheriff of that county . The
sheriff shall deposit the voucher in the Sheriff 's
Service Fee Account created purs uant to Section 514.1
of Title 19 of the Oklahoma Statutes. The sheriff or
deputy sheriff shall serve the process in the manner
that other process issued out of the court of the
sheriff's own county is served. A summons to be
served by a person licensed to make service of process
in civil cases or by a person specially appointed for
that purpose shall be delivered by an attorney of
record for the plaintiff to such pe rson.
c. Service shall be made as follows:
(1) upon an individual other than an infant who is
less than fifteen (15) years of age or an
incompetent person, by delivering a copy of the
summons and of the petition personally or by
leaving copies thereof at t he person's dwelling
house or usual place of abode with some person
then residing therein who is fifteen (15) years
of age or older or, by delivering a copy of the
summons and of the petition to an agent
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authorized by appointment or by law to receive
service of process, or by delivering a copy of
the summons and of the petition personally or by
leaving copies thereof at an agreed meeting place
with some person then re siding at the person's
dwelling house or usual place of abode ,
(2) upon an infant who is le ss than fifteen (15)
years of age, by serving the summons and petition
personally and upon either of the infant's
parents or guardian, or if they cannot be found,
then upon the person having the care or control
of the infant or with whom the infant lives; and
upon an incompetent person by serving the summons
and petition personally and upon the incompetent
person's guardian,
(3) upon a domestic or foreign corporation or upo n a
partnership or other unincorporated association
which is subject to suit under a common name, by
delivering a copy of the summons and of the
petition to an officer, a mana ging or general
agent or to any other agent authorized by
appointment or by law t o receive service of
process and, if the agent is one authorized by
statute to receive service and the statute so
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requires, by also mailing a copy to the
defendant,
(4) upon the United States or an officer or agency
thereof in the manner specified by Feder al Rule
of Civil Procedure 4,
(5) upon a state, county, school district, public
trust or municipal corporation or other
governmental organization thereof subject to
suit, by delivering a copy of the summons and of
the petition to the officer or individual
designated by specific statute; however, if there
is no statute, then upon the chief executive
officer or a clerk, secretary or other official
whose duty it is to maintain the official records
of the organization,
(6) upon an inmate incarcerated in an inst itution
under the jurisdiction and control of the
Department of Corrections, by deliv ering a copy
of the summons and of the petition to the warden
or superintendent or the des ignee of the warden
or superintendent of the institution where the
inmate is housed. It shall be the duty of the
receiving warden or superintendent or a designee
to promptly deliver the summons and petition to
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the inmate named therein. The warden or
superintendent or his or her designee shall
reject service of process for any inmate who is
not actually present in the institution, and
(7) upon an inmate incarcerated i n a county jail or
detention center under the jurisdiction and
control of the county sheri ff or the jail trust
of the county, by delivering a copy of the
summons and of the petition to the jail or
detention center administrator or the designee of
such administrator of the jail or detention
center where the inmate is housed. It shall be
the duty of the receiving jail or detention
center administrator or designee to promptly
deliver the summons and petition to the inmate
named therein. The jail or detention center
administrator or designee shall reject service of
process for any inmate who is no t actually
present in the jail or detention center.
2. SERVICE BY MAIL.
a. At the election of the plaintiff, a summons and
petition may be served by mail by the plai ntiff's
attorney, any person authorized to serve process
pursuant to subparagraph a of par agraph 1 of this
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subsection or by the court clerk upon a defendant of
any class referred to in division (1), (3) or (5) of
subparagraph c of paragraph 1 of this subse ction.
Service by mail shall be effective on the date of
receipt or if refused, on the da te of refusal of the
summons and petition by the defendant.
b. Service by mail shall be accomplished by mailing a
copy of the summons and petition by certified mail,
return receipt requested and delivery restricted to
the addressee. When there is more tha n one defendant,
the summons and a copy of the petition or order shall
be mailed in a separate envelope to each defendant.
If the summons is to be served by mail by the court
clerk, the court clerk shall enclose the summons and a
copy of the petition or o rder of the court to be
served in an envelope, prepared by the plaintiff,
addressed to the defendant, or to the resident service
agent if one has been appointed. The court clerk
shall prepay the postage and mail the envelope to the
defendant, or service a gent, by certified mail, return
receipt requested and delivery restricted to the
addressee. The return receipt shall be prepared by
the plaintiff. Service by mail t o a garnishee shall
be accomplished by mailing a copy of the summons and
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notice by certified mail, return receipt requested,
and at the election of the judgment creditor b y
restricted delivery, to the addressee.
c. Service by mail shall not be the basis fo r the entry
of a default or a judgment by default unless the
record contains a return rece ipt showing acceptance by
the defendant or a returned envelope showing refusal
of the process by the defendant. Acceptance or
refusal of service by mail by a person who is fifteen
(15) years of age or older who resides at the
defendant's dwelling house or usual place of abode
shall constitute acceptance or refusal by the party
addressed. In the case of an entity described in
division (3) of subparagraph c of paragrap h 1 of this
subsection, acceptance or refusal by any officer or by
any employee of the reg istered office or principal
place of business who is authorized to or who
regularly receives certified mail shall constitute
acceptance or refusal by the party addres sed. A
return receipt signed at such registered office or
principal place of business sha ll be presumed to have
been signed by an employee authorized to receive
certified mail. In the case of a state municipal
corporation, or other governmental organizat ion
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thereof subject to suit, acceptance or refusal by an
employee of the office of the off icials specified in
division (5) of subparagraph c of paragraph 1 of this
subsection who is authorized to or who regularly
receives certified mail shall constitute ac ceptance or
refusal by the party addressed. If delivery of the
process is refused, upon t he receipt of notice of such
refusal and at least ten (10) days before applying f or
entry of default, the person elected by plaintiff
pursuant to subparagraph a of th is paragraph to serve
the process shall mail to the defendant by first -class
mail a copy of the summons and petition and a notice
prepared by the plaintiff that despite su ch refusal
the case will proceed and that judgment by default
will be rendered agains t him unless he appears to
defend the suit. Any default or judgment by default
shall be set aside upon motion of the defendant in the
manner prescribed in Section 1031.1 of this title, or
upon petition of the defendant in the manner
prescribed in Section 1033 of this title if the
defendant demonstrates to the court that the return
receipt was signed or delivery was refused by an
unauthorized person. A petition shall be fi led within
one (1) year after the defendant has notice of the
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default or judgment by default but in no event more
than two (2) years after the filing of the judgment.
3. SERVICE BY PUBLICATION.
a. Service of summons upon a named defendant may be made
by publication when it is stated in the petition,
verified by the plaintiff or the plaint iff's attorney
or in a separate affidavit by the plaintiff or the
plaintiff's attorney filed with the court, that with
due diligence service cannot be made upon the
defendant by any other method.
b. Service of summons upon the unknown successors of a
named defendant, a named decedent or a dissolved
partnership, corporation or other association may be
made by publication when it is stated in a petition,
verified by the plain tiff or the plaintiff's attorney
or in a separate affidavit by the plaintiff or the
plaintiff's attorney filed with the court, that the
person who verified the petition or the affidavit does
not know and with due diligence cannot ascertain the
following:
(1) whether a person named as defendant is living or
dead, and, if dead, the names or whereabouts of
the person's successors, if any,
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(2) the names or whereabouts of the unknow n
successors, if any, of a named decedent,
(3) whether a partnership, corporation or other
association named as a defendant continues to
have legal existence or not; or the names or
whereabouts of its officers or successors,
(4) whether any person designat ed in a record as a
trustee continues to be the trustee; or the names
or whereabouts of the successors of the trustee,
or
(5) the names or whereabouts of the owners o r holders
of special assessment or improvement bonds, or
any other bonds, sewer warrants o r tax bills.
c. Service pursuant to this paragraph shall be made by
publication of a notice, signed by the court clerk,
one (1) day a week for three (3) consecutive w eeks in
a newspaper authorized by law to publish legal notices
which is published in the c ounty where the petition is
filed. If no newspaper authorized by law to publish
legal notices is published in such county, the notice
shall be published in some such newspaper of general
circulation which is published in an adjoining county.
All named parties and their unknown successors who may
be served by publication may be includ ed in one
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notice. The notice shall state the court in which the
petition is filed an d the names of the plaintiff and
the parties served by publication, and shall designate
the parties whose unknown successors are being served.
The notice shall also state that the named defendants
and their unknown successors have been sued and must
answer the petition on or before a time to be stated
(which shall not be less than forty -one (41) days from
the date of the first publication), or judgment, the
nature of which shall be stated, will be rendered
accordingly. If jurisdiction of the court is base d on
property, any real property subject to the
jurisdiction of the court and any property or debts to
be attached or garnished must be described in the
notice.
(1) When the recovery of money is sought, it is not
necessary for the publication notice to sta te the
separate items involved, but the total amount
that is claimed must be stated. When interest is
claimed, it is not necessary to state the rate of
interest, the date from which interest is claimed
or that interest is claimed until the obligation
is paid.
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(2) It is not necessary for the publication notice to
state that the judgment will in clude recovery of
costs in order for a judgment following the
publication notice to include costs of suit.
(3) In an action to quiet title to real property, it
is not necessary for the publication notice to
state the nature of the claim or interest of
either party, and in describing the nature of the
judgment that will be rendered shou ld the
defendant fail to answer, it is sufficient to
state that a decree quieting pla intiff's title to
the described property will be entered. It is
not necessary to state th at a decree forever
barring the defendant from asserting any interest
in or to the property is sought or will be
entered if the defendant does not answer.
(4) In an action to foreclose a mortgage, it is
sufficient that the publication notice state that
if the defendant does not answer, the defendant 's
interest in the property will be f oreclosed. It
is not necessary to state that a judgment forever
barring the defendan t from all right, title,
interest, estate, property and equity of
redemption in or to the property or any part
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thereof is requested or will be entered if the
defendant does not answer.
d. Service by publication is complete when made in the
manner and for the time prescribed in subparagraph c
of this paragraph. Service by publication shall be
proved by the affidavit of any person having knowledge
of the publication. No def ault judgment may be
entered on such service until proof of service by
publication is filed with and approved by the court.
e. Before entry of a default judgment or order agai nst a
party who has been served solely by publication under
this paragraph, the c ourt shall conduct an inquiry to
determine whether the plaintiff, or someone acting i n
behalf of the plaintiff, made a distinct and
meaningful search of all reasonably availab le sources
to ascertain the whereabouts of any named parties who
have been served solely by publication under this
paragraph. Before entry of a default judgment or
order against the unknown successors of a named
defendant, a named decedent or a dissolved
partnership, corporation or association, the court
shall conduct an inquiry to as certain whether the
requirements described in subparagraph b of this
paragraph have been satisfied.
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f. A party against whom a default judgment or order has
been rendered, without other service than by
publication in a newspaper, may, at any time within
three (3) years after the filing of the judgment or
order, have the judgment or order se t aside in the
manner prescribed in Sections 1031.1 and 1033 of this
title. Before the ju dgment or order is set aside, the
applicant shall notify the adverse party of the
intention to make an application and shall file a full
answer to the petition, pay a ll costs if the court
requires them to be paid and satisfy the court by
affidavit or other evidence that during the pendency
of the action the applicant had no actual noti ce
thereof in time to appear in court and make a defense.
The title to any property which is the subject of and
which passes to a purchaser in good faith by or in
consequence of the judgment or order to be opened
shall not be affected by any proceedings u nder this
subparagraph. Nor shall proceedings under this
subparagraph affect the tit le of any property sold
before judgment under an attachment. The adverse
party, on the hearing of an application to open a
judgment or order as provided by this subparagr aph,
shall be allowed to present evidence to show that
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during the pendency of the act ion the applicant had
notice thereof in time to appear in court and make a
defense.
g. The term "successors" includes all heirs, executors,
administrators, devisees, trust ees and assigns,
immediate and remote, of a named individual,
partnership, corporatio n or association.
h. Service outside of the state does not give the court
in personal jurisdiction over a defendant who is not
subject to the jurisdiction of the courts of this
state or who has not, either in person or through an
agent, submitted to the ju risdiction of the courts of
this state.
4. SERVICE ON THE SECRETARY OF STATE.
a. Service of process on a domestic or foreign
corporation may be made by serving the Secret ary of
State as the corporation 's agent, if:
(1) there is no registered agent for the corporation
listed in the records of the Secretary of State,
or
(2) neither the registere d agent nor an officer of
the corporation could be found at the registered
office of the corporation, when service of
process was attempted.
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b. Before resorting to se rvice on the Secretary of State
the plaintiff must have attempted service either in
person or by mail on the corporation at:
(1) the corporation's last-known address shown on the
records of the Franchise Tax Division of the
Oklahoma Tax Commission, if any is listed there,
and
(2) the corporation's last-known address shown on the
records of the Secretary of State, if any is
listed there, and
(3) the corporation's last address known to the
plaintiff.
If any of these addresses are the same, the plaintiff
is not required to attempt service more than once at
any address. The plaintiff shall furnish the
Secretary of State with a certified copy of the return
or returns showing the attempted service.
c. Service on the Secretary of State shall be made by
filing two (2) copies of the summons and petition with
the Secretary of State, notifying the Secretar y of
State that service is being made pursuant to the
provisions of this paragrap h, and paying the Secretary
of State the fee prescribed in paragraph 7 of
subsection A of Section 1142 of Title 18 of the
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Oklahoma Statutes, which fee shall be taxed as part o f
the costs of the action, suit or proceeding if the
plaintiff shall prevail ther ein. If a registered
agent for the corporation is listed in the records of
the Secretary of State, the plaintiff must also
furnish a certified copy of the return showing that
service on the registered agent has been attempted
either in person or by mail, and that neither the
registered agent nor an officer of the corporation
could be found at the registered office of the
corporation.
d. Within three (3) working days after rece iving the
summons and petition, the Secretary of State shall
send notice by lette r, certified mail, return receipt
requested, directed to the corporation at its
registered office or the last -known address found in
the office of the Secretary of State, or i f no address
is found there, to the corporation 's last-known
address provided by the plaintiff. The notice shall
enclose a copy of the summons and petition and any
other papers served upon the Secretary of State. The
corporation shall not be required to serve its answer
until forty (40) days after service of the summons and
petition on the Secretary of State.
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e. Before entry of a default judgment or order against a
corporation that has been served by serving the
Secretary of State as its agent under this paragraph,
the court shall determine whether the requirements of
this paragraph have been satisfied. A default
judgment or order against a corporation that has been
served only by service on the Secretary of State may
be set aside upon motion of the corpo ration in the
manner prescribed in Section 1031.1 of this title, or
upon petition of the corporation in the manner
prescribed in Section 1033 of this title, if the
corporation demonstrates to the court that it had no
actual notice of the action in time to appear and make
its defense. A petition shall be filed within one (1)
year after the corporation has notice of the default
judgment or order but in no event more tha n two (2)
years after the filing of the default judgment or
order.
f. The Secretary of Sta te shall maintain an alphabetical
record of service setting forth the name of the
plaintiff and defendant, the title, docket number and
nature of the proceeding in wh ich the process has been
served upon the defendant, the fact that service has
been effected pursuant to the provisions of this
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paragraph, the return date thereof and the d ate when
the service was made. The Secretary of State shall
not be required to retai n this information for a
period longer than five (5) years from receipt of the
service of process.
g. The provisions of this paragraph shall not apply to a
foreign insurance company doing business in this
state.
5. SERVICE BY ACKNOWLEDGMENT. An acknowled gment on the back of
the summons or the voluntary appearance of a defendant is equivalent
to service.
6. SERVICE BY OTHER METHODS. If service cannot be made by
personal delivery or by mail, a defendant of any class referred to
in division (1) or (3) of s ubparagraph c of paragraph 1 of this
subsection may be served as provided by court order i n a manner
which is reasonably calculated to give the defendant actual notice
of the proceedings and an opportunity to be heard and upon filing an
affidavit by the plaintiff or plaintiff 's attorney that with due
diligence service cannot otherwise be made u pon the defendant.
7. NO SERVICE BY PRISONER. No prisoner in any jail, Departme nt
of Corrections facility, private prison, or parolee or probationer
under supervision of the Department of Corrections shall be
appointed by any court to serve process on an y defendant, party or
witness.
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D. SUMMONS AND PETITION. The summons and petitio n shall be
served together. The plaintiff shall furnish the person making
service with such copies as are necessary. The failure to serve a
copy of the petition with the sum mons is not a ground for dismissal
for insufficiency of service of process, but o n motion of the party
served, the court may extend the time to answer or otherwise pl ead.
If a summons and petition are served by personal delivery, the
person serving the su mmons shall state on the copy that is left with
the person served the date that s ervice is made. This provision is
not jurisdictional, but if the failure to comply w ith it prejudices
the party served, the court, on motion of the party served, may
extend the time to answer or otherwise plead.
E. SUMMONS: TERRITORIAL LIMITS OF EFFECTI VE SERVICE.
1. Service of the summons and petition may be made anywhere
within this state in the manner provided by subsection C of this
section.
2. When the exercise of jur isdiction is authorized by
subsection F of this section, service of the summons a nd petition
may be made outside this state:
a. by personal delivery in the manner pre scribed for
service within this state,
b. in the manner prescribed by the law of the place in
which the service is made for service in that place in
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an action in any of it s courts of general
jurisdiction,
c. in the manner prescribed by paragraph 2 of subse ction
C of this section,
d. as directed by the foreign authority in response to a
letter rogatory,
e. in the manner prescribed by paragraph 3 of subsection
C of this section only when permitted by subparagraphs
a and b of paragraph 3 of subsection C of thi s
section, or
f. as directed by the court.
3. Proof of service outside this state may be made in the
manner prescribed by subsection G of this section, the order
pursuant to which the service is made, or the law of the place in
which the service is made f or proof of service in an action in any
of its courts of general jurisdiction.
4. Service outside this state may be made by an individual
permitted to make service of pro cess under the law of this state or
under the law of the place in which the service i s made or who is
designated to make service by a court of this state.
5. When subsection C of this section requires that in order to
effect service one or more designated individuals be served, service
outside this state under this section must be made up on the
designated individual or individuals.
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6. a. A court of this state may order service upon any
person who is domiciled or can be found within this
state of any document issued in connection with a
proceeding in a tribunal outside this state. The
order may be made upon application of any interested
person or in response to a letter rogator y issued by a
tribunal outside this state and shall direct the
manner of service.
b. Service in connection with a proceeding in a tribunal
outside this state may be m ade within this state
without an order of court.
c. Service under this paragraph does not, of itself,
require the recognition or enforcement of an order,
judgment or decree rendered outside this state.
F. ASSERTION OF JURISDICTION. A court of this state may
exercise jurisdiction on any basis consistent with the Constitution
of this state and the Constitution of the United States.
G. RETURN.
1. The person serving the pro cess shall make proof of service
thereof to the court promptly and in any event withi n the time
during which the person served must respond to the process, but the
failure to make proof of service does not affect the validity of the
service.
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2. When process has been served by a sheriff or deputy sheriff
and return thereof is filed in the office of the court clerk, a copy
of the return shall be sent by the court clerk to the pl aintiff's
attorney within three (3) days after the return is filed. If
service is made by a person other than a sheriff or deputy sheriff,
the licensed process serve r shall make affidavit thereof. The
return shall set forth the county of issuance, the na me of the
person served and the date, place and method of service.
3. If service was by mail, the person mailing the summons and
petition shall endorse on the copy o f the summons or order of the
court that is filed in the action the date and place of mail ing and
the date when service was receipted or service was rejected, and
shall attach to the copy of the summons or order a copy of the
return receipt or returned env elope, if and when received, showing
whether the mailing was accepted, refused or otherwis e returned. If
the mailing was refused, the return shall also show the date and
place of any subsequent mailing pursuant to paragraph 2 of
subsection C of this secti on. When the summons and petition are
mailed by the court clerk, the court clerk shall no tify the
plaintiff's attorney within three (3) days after receipt of the
returned card or envelope showing that the card or envelope has been
received.
H. AMENDMENT. At any time in its discretion and upon such
terms as it deems just, the court may allow any process or proof of
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service thereof to be amended, unless it clearly appears that
material prejudice would result to the substantial rights of the
party against whom the process issued.
I. SUMMONS: TIME LIMIT FOR SERVICE. If service of process is
not made upon a defendant within one hundred eighty (180) days after
the filing of the petition and the plaintiff has not shown good
cause why such service was not made within that period, the action
shall be deemed dismissed as to that defendant without pre judice and
Section 100 of this title shall be applicable to any refiling of the
action. Upon application of a defendant not timely served, the
court shall enter an o rder dismissing the action as to that
defendant. The court shall enter a dismissal order of an action
within two hundred (200) days after the filing of the action in
which no service has been made on any defendant as required pursuant
to this section and such order shall be mailed to the address of the
party or the party's attorney of record. The action shall not be
dismissed if a summons was served on the defendant withi n one
hundred eighty (180) days after the filing of the petition and a
court later holds that the summons or its service was invalid.
After a court quashes a summons or its s ervice, a new summons may be
served on the defendant within a time specified by t he judge. If
the new summons is not served within the specified time, the action
shall be deemed to have been dismissed without prejudice as to that
defendant. This subsecti on shall not apply with respect to a
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defendant who has been outside of this state for one hundred eighty
(180) days following the filing of the petition.
SECTION 2. This act shall become effective November 1, 2022.
58-2-8609 AQH 12/09/21