A common mistake we see at Lawyers Mutual is a break in the chain of Alias or Pluries (“A&P”) summonses that gives rise to a statute of limitations defense as to the defendant not properly served. For example, plaintiff’s lawyer files a lawsuit just shy of the statute of limitations. A summons is issued to the defendant, but for one reason or another the defendant is not properly served within 60 days of the date of issuance of the summons.
Remember that under Rule 4, if the summons is not served within 60 days, it becomes dormant. Service of a dormant summons, i.e., a summons that is more than 60 days but no more than 90 days old, is salvageable, but you do not want to go there. (Upon motion pursuant to Rule 6(b), the court has the discretion “to breathe new life” into a dormant summons. Wetchin v. Ocean Side Corp., 167 N.C. App. 756, 606 S.E. 2d 407 (2005)). After 90 days, the court has no such discretion.
If the summons is not served within 60 days of the date of issuance, the action may be continued in existence by securing an endorsement upon the original summons for an extension of time within which to complete service of process or by suing out an A&P summons within 90 days after the issuance of the last preceding summons, endorsement, or A&P summons.
Here is where the mistake occurs. Rule 4 says that if the endorsement or A&P summons is not obtained within 90 days after the date of issuance of last preceding summons, the action is discontinued as to any defendant not served within the time allowed. You can sue out another A&P summons even after 90 days, but the action will be deemed to have commenced on the date of issuance of that new A&P summons. If you are within the statute of limitations, great! No problem. But if the statute of limitations has expired, your action as to that defendant not theretofore served is barred by the statute of limitations.
Here are a few take-aways based on our experience at Lawyers Mutual:
Oftentimes a break in the chain occurs when the lawyer on the third, fourth, . . . A&P summons. Someone gets busy and misses getting a timely A&P summons issued by a day or two. The chain of timely A&P summonses is broken, and the action is deemed to have commenced as to the defendant not theretofore served. If the statute of limitations has expired, that defendant has a statute of limitations defense. If you have a chain running, pay careful attention to it.
When issuing A&P summonses, make sure you complete the sections asking for the date the original summons was issued and the date(s) subsequent summons(es) were issued. Failure to complete these sections will “break the chain” and your action as to that defendant will not “relate back” to the date of issuance of the original summons. Integon General Ins. Co. v. Martin, 127 N.C. App. 440, 490 S.E. 2d 242 (1997) (The issuance of an alias or pluries summons with [reference to its alleged relation to the original] has the double effect of initiating a new action and discontinuing the original one.)
Keep your summons alive, i.e., your chain intact, until the defendant has filed an answer that does not include a lack of personal jurisdiction, insufficiency of process or insufficiency of service of process defense. You might even want to wait 30 more days since the defendant has a right to amend the answer without leave of court to add one of those defenses.
We all make mistakes, many of which we at Lawyers Mutual can help you fix. But when it comes to a break in the chain of A&P summonses where the statute of limitations has intervened, there is not much we or you can do. Train you staff that a running chain is A&P summons is a red flag indicating a situation where a mistake is not uncommon.
About the Author
Mark Scruggs is senior claims counsel with Lawyers Mutual specializing in litigation, workers compensation and family law matters. You can reach Mark at 800.662.8843 or firstname.lastname@example.org.