Request for Written Comments
The South Carolina Bar has proposed amending Rule 4 of the South Carolina Rules of Civil Procedure (SCRCP) to provide for a method of service on an individual defendant in a foreign country.
After a review of the Bar's submission, the Court is considering modifying the Bar's proposed amendment1 for submission to the General Assembly in accordance with Article V, Section 4A of the South Carolina Constitution. The proposed changes are set forth in the attachment.
Persons or entities desiring to submit written comments should submit their comments to the following email address, firstname.lastname@example.org, on or before December 1, 2021. Comments should be submitted as an attachment to the email as either a Microsoft Word document or an Adobe PDF document.
Columbia, South Carolina
November 10, 2021
Rule 4(e), SCRCP, would be amended to provide:2
(e) Serving an Individual in a Foreign Country. Unless a statute provides otherwise, an individual—other than a minor or an incompetent person—may be served at a place not within any judicial district of the United States:
(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;
(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:
(A) as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction;
(B) as the foreign authority directs in response to a letter rogatory or letter of request; or
(C) unless prohibited by the foreign country's law, by:
(i) delivering a copy of the summons and of the complaint to the individual personally; or
(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or
(3) by other means not prohibited by international agreement, as the court orders.
Rule 4(h), SCRCP, would be amended to provide:
(h) Proof of Service Without the State. When the service is made out of the State the proof of such service may be made, if within the United States, by affidavit before:
(1) Any person in this State authorized to make an affidavit;
(2) A commissioner of deeds for this State;
(3) A notary public who shall affix thereto his official seal; or
(4) A clerk of a court of record who shall certify the same by his official seal
(5) If made without the limits of the United States, before a consul, vice-consul or consular agent of the United States who shall use in his certificate his official seal.
Rule 4(i), SCRCP, would be amended to provide:
(i) Proof of Service on an Individual in a Foreign Country. Service not within the United States must be proved as follows:
(1) if made under Rule 4(e)(1), as provided in the applicable treaty or convention; or
(2) if made under Rule 4(e)(2) or (e)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee.
1 The version approved by the Bar's House of Delegates is available at: https://www.scbar.org/media/filer_public/dc/56/dc56e1e7-33f0-46b6-aa37-e89f16300fe5/july_30_2021_materials.pdf.
2 Subsequent paragraphs in Rule 4 would be re-lettered to reflect the addition of any new paragraphs.