4.5 Process

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

4.5 PROCESS

4.501 Introduction. The court's authority to adjudicate over a defendant is limited by:

1.	The form of notice given to the defendant, namely, service of process, the purpose of which is to officially inform the defendant of the action brought against him or her. The notice formally subjects the defendant to the adjudicatory authority of court;
2.	The territory wherein court can exercise its power, namely, jurisdiction over person or thing; 525
3.	In a motion to set aside a default judgment under Rule 3:19(d)(1), a trial court is not required to find "actual notice" to a defendant or to articulate its decision of and

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	findings with regard to the factors listed in Rule 3:19(d)(1); 526 and
4.	The use of a post office box, although one of two known addresses to the plaintiff, is not unconstitutional and satisfies "the last known address" requirement of Va. Code § 8.01-329(B). 527

4.502 Service of Process Generally. ⁵²⁸

A. Definition. Service of process is a summons (order) to an officer to notify the defendant to answer the plaintiff's complaint at a time and place specified in the summons.

B. Commencement of Action. The date of the commencement of the action is important for statute of limitations purposes. The commencement of the action relates to filing in court, not to service of process on the defendant.

C. Circuit Court. In circuit court, actions are commenced by filing a complaint in the clerk's office on which the clerk issues process (a summons). ⁵²⁹ The full name and last known address of each defendant must be given in writing to the clerk or other issuing officer. ⁵³⁰ It may be given by a separate document. However, failure to give the necessary address or other identifying facts does not affect the validity of a judgment. ⁵³¹

D. General District Court. In general district court, if by warrant, an action commences when (i) the memorandum is filed with the clerk or other officer authorized to issue warrants and (ii) the filing fee is paid. ⁵³²

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If by complaint, an action commences when (i) the complaint is filed with the clerk and (ii) the filing fee is paid. It is important to remember that when a complaint is used, the same rules apply as when proceeding by warrant. ⁵³³

E. Computation of Time. When a statute court rule requires that an act be performed a prescribed amount of time before a motion or proceeding, the day of such motion or proceeding is not counted against the time allowed, but the day on which such act is performed may be counted as part of the time. When a statute or court rule requires that an act be performed within a prescribed amount of time after any event or judgment, the day on which the event or judgment occurred is not counted against the time allowed. ⁵³⁴

Saturdays, Sundays, legal holidays, and all days on which the clerk's office is closed as authorized by statute do not count if they are the last day, but the period is extended to the next day that is not a Saturday, Sunday, legal holiday, or closed office day. ⁵³⁵

Civil process may not be served on Sunday, except in cases of persons escaping out of custody or otherwise expressly provided. ⁵³⁶

Rule 1:7 sets out the additional days added to the prescribed response period after service of a paper on counsel of record:

(a)	No days are to be added if served by: (1) manual delivery no later than 5:00 p.m. by counsel, counsel's agent or courier, or a commercial delivery service making same-day delivery; (2) facsimile transmission completed no later than 5:00 p.m.; or (3) electronic mail transmitted no later than 5:00 p.m.
(b)	One day is added to the prescribed time if served by: (1) placing the paper in the hands of a commercial

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	delivery service before midnight for next-day delivery, or (2) completion of the following after 5:00 p.m. but before midnight: (A) manual delivery by counsel, counsel's agent or courier, or a commercial delivery service making same-day delivery; (B) transmission by facsimile; or (C) transmission by electronic mail.
(c)	Three days are added to the prescribed time if served by mail. With respect to Parts Five and Five A of the Rules, Rule 1:7 applies only to the time for filing a brief in opposition.

4.503 Classification of Process (by Phases of a Case).

A. Original (Commence Action).

B. Mesne (Pendente Lite). When an attorney authorized to practice law in Virginia has entered a general appearance for any party, any process, order, or other legal papers to be used in the proceeding may be served on such attorney of record, ⁵³⁷ or, for service of papers after the initial process, see Rule 1:12.

C. Final. For example, execution on a judgment: order to sheriff (fieri facias) to serve judgment debtor.

D. Requirements of Service in Discovery. Rule 4:1(f) pertains to the requirements of service in discovery, although it is not really considered process (in the sense that process emanates from the court through the clerk's office).

E. Out-of-State Lawyers. Where service on counsel is required, service on a local associate is sufficient in cases where a foreign attorney has been permitted to appear. ⁵³⁸ Although it is not required, a copy is usually sent to the foreign attorney also.

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4.504 Classification of Service. There are three types of classification of service:

1. Actual (for example, on defendant personally);

2. Substituted (for example, on agent of defendant); and

3. Constructive (fictional) (for example, by order of publication).

4.505 Persons Who May Serve Process.

A. Sheriff of County or City. ⁵³⁹ If service is by sheriff, the sheriff must make return of service to the clerk's office. ⁵⁴⁰ A sheriff can serve in his or her own bailiwick and in contiguous cities and counties. ⁵⁴¹ As a practical matter, sheriffs are reluctant to serve outside their bailiwicks. Process can be served by one officer even if directed to another officer. ⁵⁴² The sheriff must get papers from the clerk's office each working day. ⁵⁴³

In 2018, Va. Code § 8.01-293 was amended to provide that an investigator employed by a commonwealth's attorney or by the Indigent Defense Commission who within 10 years immediately before that employment was an active law enforcement officer in Virginia ⁵⁴⁴ and retired or resigned from that position as a law enforcement officer in good standing may serve process, provided that the sheriff in the jurisdiction where process is to be served has agreed that the investigator may serve. However, in any case in which custody or visitation of a minor child is at issue and a summons is issued for attendance in testimony of a teacher or other school personnel who is not a party to the proceeding, if that summons is served on the school property, it must be served only by a sheriff or his or her deputy. ⁵⁴⁵

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B. Person 18 or Older and Private Process Server. Process may be served by any person age 18 years or older and who is not a party or otherwise interested in the subject matter in controversy. ⁵⁴⁶ A private process server is any person 18 years of age or older who is not a party or otherwise interested in the subject matter in controversy who charges a fee for service of process. ⁵⁴⁷ Proof of service must be made by an affidavit. ⁵⁴⁸

C. Out-of-State Defendant. Court only acquires in rem jurisdiction, but see long-arm statute, paragraph 4.516 below. Service on an out of state defendant may be made by a person authorized to serve process in the jurisdiction in which the defendant is located or by a person over 18 who is not a party and not interested. Where there is in personam jurisdiction under the long-arm statute, service has the same effect as personal service. ⁵⁴⁹

D. Divorce or Annulment. In any suit for divorce or annulment or affirmation of a marriage, process may be served in any manner authorized under Va. Code §§ 8.01-296 or 8.01-320. ⁵⁵⁰

E. Penalties for Failure to Make Proper Service. There are penalties for failure of the officer to make proper service. Civil (for example, on bond). ⁵⁵¹

4.506 Persons Exempt from Service of Process. A nonresident is exempt from service of process if he or she is (i) brought into the state by fraud or trickery; ⁵⁵² (ii) a witness summoned in Virginia or en route through Virginia; ⁵⁵³ or (iii) party, plaintiff or defendant: probably. ⁵⁵⁴

The procedure to object is to make a special appearance or file a motion to quash.

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Quaere: Should not this demonstrate that process has reached its destination and trigger Va. Code § 8.01-288? Answer: Probably no—these things are matter of policy (not fact).

Judge: Old Virginia case. Dictum applies to judges, attorneys, witnesses, and parties. ⁵⁵⁵

If a person is exempt from process, so is his or her property, if it is reasonably necessary for his or her appearance, for example, his or her automobile. ⁵⁵⁶

4.507 Persons Privileged from "Arrest Under Civil Process." Under Va. Code § 8.01-327.2, persons who are privileged from "arrest under civil process" include, for example, the President of the United States, the Governor of Virginia, and the Lieutenant Governor of Virginia. Exempt persons also include, for example, voters going to an election or a minister performing a service before a congregation.

Under Va. Code § 8.01-327.1, The terms "arrest under civil process" and "civil arrest" are synonymous and shall be the apprehending and detaining of a person pursuant to specific provisions of this title to achieve the following:

1.	A full and proper answer or response to interrogatories under Va. Code § 8.01-506 (capias ad respondendum); 557 or
2.	His or her obedience to the orders, judgments, and decrees of any court (civil contempt).

Exemptions are just for time specified by statute. ⁵⁵⁸

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4.508 Service of Process on Natural Persons.

A. Necessary for Valid Judgment. Service of process on natural persons is necessary...