ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4617
(By Delegates Webster, Proudfoot, Stemple and Ellem)
[Passed March 8, 2008; in effect from passage.]
AN ACT
to amend and reenact §31B-1-111 of the Code of West
Virginia, 1931, as amended; to amend and reenact §31D-5-504 of
said code; to amend and reenact §31D-15-1510 of said code; to
amend and reenact §31E-5-504 of said code; to amend and
reenact §31E-14-1410 of said code; to amend and reenact §46A-
2-137 of said code; to amend and reenact §47-9-4 of said code;
and to amend and reenact §56-3-31 and §56-3-33 of said code,
all relating to service of process; service on corporation
for-profit; service on corporation non-profit; service on
foreign corporation; service of process on certain
nonresidents; constituting the secretary of state as attorney-
in-fact for all limited partnerships; service of process
against non residents involved in motor vehicle accidents;
service of process against nonresidents having certain
contracts with this state.
Be it enacted by the Legislature of West Virginia:
That §31B-1-111 of the Code of West Virginia, 1931, as
amended, be amended and reenacted; that §31D-5-504 of said code be
amended and reenacted;
that §31D-15-1510 of said code be amended
and reenacted;
that §31E-5-504 of said code be amended and
reenacted; that §31E-14-1410 of said code be amended and reenacted;
that §46A-2-137 of said code be amended and reenacted; that §47-9-4
of said code be amended and reenacted; and that §56-3-31 and §56-3-
33 of said code be amended and reenacted, all to read as follows:
CHAPTER 31B. UNIFORM LIMITED LIABILITY COMPANY ACT.
ARTICLE 1. GENERAL PROVISIONS.
§31B-1-111. Service of process.
(a) An agent for service of process appointed by a limited
liability company or a foreign limited liability company is an
agent of the company for service of any process, notice or demand
required or permitted by law to be served upon the company.
(b) If a limited liability company or foreign limited
liability company fails to appoint or maintain an agent for service
of process in this state or the agent for service of process cannot
with reasonable diligence be found at the agent's address, the
secretary of state is an agent of the company upon whom process,
notice or demand may be served.
(c) Service of any process, notice or demand on the secretary
of state may be made by delivering to and leaving with the
secretary of state, the assistant secretary of state or clerk
having charge of the limited liability company department of the
secretary of state, the original process, notice or demand and two
copies thereof for each defendant, along with the fee required by
section two, article one, chapter fifty-nine of this code. No
process, notice or demand may be served on or accepted by the
secretary of state less than ten days before the return day
thereof. The secretary of state, upon being served with or
accepting any process, notice or demand, shall: (1) File in his or
her office a copy of the process, notice or demand, endorsed as of
the time of service or acceptance; and (2) transmit one copy of the
process, notice or demand by registered or certified mail, return
receipt requested, by a means which may include electronic issuance
and acceptance of electronic return receipts, to the limited
liability company's registered agent:
Provided, That if there is
no registered agent, then to the individual whose name and address
was last given to the secretary of state's office as the person
designated to receive process, notice or demand. If no person has
been named, then to the principal office of the limited liability
company at the address last given to the secretary of state's
office and if no address is available on record with the secretary of state then to the address provided on the original process,
notice or demand, if available; and (3) transmit the original
process, notice or demand to the clerk's office of the court from
which the process, notice or demand was issued. Such service or
acceptance of process, notice or demand is sufficient if the return
receipt is signed by an agent or employee of such company, or the
registered or certified mail so sent by the secretary of state is
refused by the addressee and the registered or certified mail is
returned to the secretary of state, showing the stamp of the United
States postal service that delivery thereof has been refused, and
such return receipt or registered or certified mail is received by
the secretary of state by a means which may include electronic
issuance and acceptance of electronic return receipts. After
receiving verification from the United States postal service that
acceptance of process, notice or demand has been signed, the
secretary of state shall notify the clerk's office of the court
from which the process, notice or demand was issued by a means
which may include electronic notification. If the process, notice
or demand was refused or undeliverable by the United States postal
service the secretary of state shall return refused or
undeliverable mail to the clerk's office of the court from which
the process, notice or demand was issued. No process, notice or
demand may be served on the secretary of state or accepted by him or her less than ten days before the return day of the process or
notice. The court may order continuances as may be reasonable to
afford each defendant opportunity to defend the action or proceedings.
(d) The secretary of state shall keep a record of all
processes, notices and demands served pursuant to this section and
record the time of and the action taken regarding the service.
(e) This section does not affect the right to serve process,
notice or demand in any manner otherwise provided by law.
CHAPTER 31D. WEST VIRGINIA BUSINESS CORPORATION ACT.
ARTICLE 5. OFFICE AND AGENT.
§31D-5-504. Service on corporation.
(a) A corporation's registered agent is the corporation's
agent for service of process, notice or demand required or
permitted by law to be served on the corporation.
(b) If a corporation has no registered agent, or the agent
cannot with reasonable diligence be served, the corporation may be
served by registered or certified mail, return receipt requested,
addressed to the secretary of the corporation at its principal
office. Service is perfected under this subsection at the earliest
of:
(1) The date the corporation receives the mail;
(2) The date shown on the return receipt, if signed on behalf
of the corporation; or
(3) Five days after its deposit in the United States mail, as
evidenced by the postmark, if mailed postpaid and correctly
addressed.
(c)In addition to the methods of service on a corporation
provided in subsections (a) and (b) of this section, the Secretary
of State is hereby constituted the attorney-in-fact for and on
behalf of each corporation created pursuant to the provisions of
this chapter. The Secretary of State has the authority to accept
service of notice and process on behalf of each corporation and is
an agent of the corporation upon whom service of notice and process
may be made in this state for and upon each corporation. No act of
a corporation appointing the Secretary of State as attorney-in-fact
is necessary. Service of any process, notice or demand on the
Secretary of State may be made by delivering to and leaving with
the Secretary of State the original process, notice or demand and
two copies of the process, notice or demand for each defendant,
along with the fee required by section two, article one, chapter
fifty-nine of this code:
Provided, That with regard to a class
action suit in which all defendants are to be served with the same
process, notice or demand, service may be made by filing with the
Secretary of State the original process, notice or demand and one
copy for each named defendant. Immediately after being served with
or accepting any process or notice, the Secretary of State shall: (1) File in his or her office a copy of the process or notice,
endorsed as of the time of service or acceptance;(2) transmit one
copy of the process or notice by registered or certified mail,
return receipt requested, by a means which may include electronic
issuance and acceptance of electronic return receipts, to: (A) The
corporation's registered agent; or (B) if there is no registered
agent, to the individual whose name and address was last given to
the Secretary of State's office as the person to whom notice and
process are to be sent and if no person has been named, to the
principal office of the corporation as that address was last given
to the Secretary of State's office. If no address is available on
record with the secretary of state, then to the address provided on
the original process, notice or demand, if available; and (3)
transmit the original process, notice or demand to the clerk's
office of the court from which the process, notice or demand was
issued. Service or acceptance of process or notice is sufficient if
return receipt is signed by an agent or employee of the
corporation, or the registered or certified mail sent by the
Secretary of State is refused by the addressee and the registered
or certified mail is returned to the Secretary of State, or to his
or her office, showing the stamp of the United States postal
service that delivery has been refused, and the return receipt or
registered or certified mail is received by the secretary of state by a means which may include electronic issuance and acceptance of
electronic return receipts. After receiving verification from the
United States postal service that acceptance of process, notice or
demand has been signed, the secretary of state shall notify the
clerk's office of the court from which the process, notice or
demand was issued by a means which may include electronic
notification. If the process, notice or demand was refused or
undeliverable by the United States postal service the secretary of
state shall return the refused or undeliverable mail to the clerk's
office of the court from which the process, notice or demand was
issued. No process or notice may be served on the Secretary of
State or accepted by him or her less than ten days before the
return day of the process or notice. The court may order
continuances as may be reasonable to afford each defendant
opportunity to defend the action or proceedings.
(d) This section does not prescribe the only means, or
necessarily the required means, of serving a corporation.
ARTICLE 15. FOREIGN CORPORATIONS.
§31D-15-1510. Service on foreign corporation.
(a) The registered agent of a foreign corporation authorized
to transact business in this state is the corporation's agent for
service of process, notice or demand required or permitted by law
to be served on the foreign corporation.
(b) A foreign corporation may be served by registered or
certified mail, return receipt requested, addressed to the
secretary of the foreign corporation at its principal office shown
in its application for a certificate of authority or in its most
recent return required pursuant to section three, article twelve-c,
chapter eleven of this code if the foreign corporation:
(1) Has no registered agent or its registered agent cannot
with reasonable diligence be served;
(2) Has withdrawn from transacting business in this state
under section one thousand five hundred twenty of this article; or
(3) Has had its certificate of authority revoked under section
one thousand five hundred thirty-one of this article.
(c) Service is perfected under subsection (b) of this section
at the earliest of:
(1) The date the foreign corporation receives the mail;
(2) The date shown on the return receipt, if signed on behalf
of the foreign corporation; or
(3) Five days after its deposit in the United States mail, as
evidenced by the postmark, if mailed postpaid and correctly
addressed.
(d) In addition to the methods of service on a foreign
corporation provided in subsections (a) and (b) of this section,
the secretary of state is hereby constituted the attorney-in-fact for and on behalf of each foreign corporation authorized to do or
transact business in this state pursuant to the provisions of this
chapter. The secretary of state has the authority to accept
service of notice and process on behalf of each corporation and is
an agent of the corporation upon whom service of notice and process
may be made in this state for and upon each corporation. No act of
a corporation appointing the secretary of state as attorney-in-fact
is necessary. Service of any process, notice or demand on the
secretary of state may be made by delivering to and leaving with
the secretary of state the original process, notice or demand and
one copy of the process, notice or demand for each defendant, along
with the fee required by section two, article one, chapter fifty-
nine of this code. Immediately after being served with or
accepting any process or notice, the secretary of state shall: (1)
File in his or her office a copy of the process or notice, endorsed
as of the time of service or acceptance; (2) transmit one copy of
the process or notice by registered or certified mail, return
receipt requested, by a means which may include electronic issuance
and acceptance of electronic return receipts, to: (A) The foreign
corporation's registered agent; or (B) if there is no registered
agent, to the individual whose name and address was last given to
the secretary of state's office as the person to whom notice and
process are to be sent and if no person has been named, to the principal office of the foreign corporation as that address was
last given to the secretary of state's office. If no address is
available on record with the secretary of state, then to the
address provided on the original process, notice or demand, if
available; and (3) transmit the original process, notice or demand
to the clerk's office of the court from which the process, notice
or demand was issued. Service or acceptance of process or notice
is sufficient if return receipt is signed by an agent or employee
of the corporation, or the registered or certified mail sent by the
secretary of state is refused by the addressee and the registered
or certified mail is returned to the secretary of state, or to his
or her office, showing the stamp of the United States postal
service that delivery has been refused, and the return receipt or
registered or certified mail is received by the secretary of state
by a means which may include electronic issuance and acceptance of
electronic return receipts. After receiving verification from
United States postal service that acceptance of process, notice or
demand has been accepted, the secretary of state shall notify the
clerk's office of the court from which the process, notice or
demand was issued by means which may include electronic
notification. If the process, notice or demand was refused or
undeliverable by the United States postal service the secretary of
state shall return the refused or undeliverable mail to the clerk's office of the court from which the process, notice or demand was
issued. No process or notice may be served on the secretary of
state or accepted by him or her less than ten days before the
return day of the process or notice. The court may order
continuances as may be reasonable to afford each defendant
opportunity to defend the action or proceedings.
(e) Any foreign corporation doing or transacting business in
this state without having been authorized to do so pursuant to the
provisions of this chapter is conclusively presumed to have
appointed the secretary of state as its attorney-in-fact with
authority to accept service of notice and process on behalf of the
corporation and upon whom service of notice and process may be made
in this state for and upon the corporation in any action or
proceeding arising from activities described in section one
thousand five hundred one of this article. No act of a corporation
appointing the secretary of state as its attorney-in-fact is
necessary. Immediately after being served with or accepting any
process or notice, of which process or notice one copy for each
defendant are to be furnished to the secretary of state with the
original notice or process, together with the fee required by
section two, article one, chapter fifty-nine of this code, the
secretary of state shall file in his or her office a copy of the
process or notice, with a note endorsed of the time of service or acceptance, and transmit one copy of the process or notice by
registered or certified mail, return receipt requested, by a means
which may include electronic issuance and acceptance of electronic
return receipts, to the corporation at the address of its principal
office, which address shall be stated in the process or notice.
The service or acceptance of process or notice is sufficient if the
return receipt is signed by an agent or employee of the
corporation, or the registered or certified mail sent by the
secretary of state is refused by the addressee and the registered
or certified mail is returned to the secretary of state, or to his
or her office, showing thereon the stamp of the United States
postal service that delivery thereof has been refused and the
return receipt or registered or certified mail is received by the
secretary of state by a means which may include electronic issuance
and acceptance of electronic return receipts. After receiving
verification from the United States postal service that acceptance
of process, notice or demand has been signed, the secretary of
state shall notify the clerk's office of the court from which the
process, notice or demand was issued by a means which may include
electronic notification. If the process, notice or demand was
refused or undeliverable by the United States postal service the
secretary of state shall return refused or undeliverable mail to
the clerk's office of the court from which the process, notice or demand was issued. No process or notice may be served on the
secretary of state or accepted by him or her less than ten days
before the return date thereof. The court may order continuances
as may be reasonable to afford each defendant opportunity to defend
the action or proceedings.
(f) This section does not prescribe the only means, or
necessarily the required means, of serving a foreign corporation.
CHAPTER 31E. WEST VIRGINIA NONPROFIT CORPORATION ACT.
ARTICLE 5. OFFICE AND AGENT.
§31E-5-504. Service on corporation.
(a) A corporation's registered agent is the corporation's
agent for service of process, notice, or demand required or
permitted by law to be served on the corporation.
(b) If a corporation has no registered agent, or the agent
cannot with reasonable diligence be served, the corporation may be
served by registered or certified mail, return receipt requested,
addressed to the secretary of the corporation at its principal
office. Service is perfected under this subsection at the earliest
of:
(1) The date the corporation receives the mail;
(2) The date shown on the return receipt, if signed on behalf
of the corporation; or
(3) Five days after its deposit in the United States mail, as
evidenced by the postmark, if mailed postpaid and correctly
addressed.
(c)In addition to the methods of service on a corporation
provided in subsections (a) and (b) of this section, the secretary
of state is hereby constituted the attorney-in-fact for and on
behalf of each corporation created pursuant to the provisions of
this chapter. The secretary of state has the authority to accept
service of notice and process on behalf of each corporation and is
an agent of the corporation upon whom service of notice and process
may be made in this state for and upon each corporation. No act of
a corporation appointing the secretary of state as attorney-in-fact
is necessary. Service of any process, notice or demand on the
secretary of state may be made by delivering to and leaving with
the secretary of state the original process, notice or demand and
two copies of the process, notice or demand for each defendant,
along with the fee required by section two, article one, chapter
fifty-nine of this code. Immediately after being served with or
accepting any process or notice, the secretary of state shall: (1)
File in his or her office a copy of the process or notice, endorsed
as of the time of service, or acceptance; (2) transmit one copy of
the process or notice by registered or certified mail, return
receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, to: (A) The
corporation's registered agent; or (B) if there is no registered
agent, to the individual whose name and address was last given to
the secretary of state's office as the person to whom notice and
process are to be sent, and if no person has been named, to the
principal office of the corporation as that address was last given
to the secretary of state's office; and if no address is available
on record with the secretary of state, then to the address provided
on the original process, notice or demand, if available; and (3)
transmit the original process, notice or demand to the clerk's
office of the court from which the process, notice or demand was
issued. Service or acceptance of process or notice is sufficient if
return receipt is signed by an agent or employee of the
corporation, or the registered or certified mail sent by the
secretary of state is refused by the addressee and the registered
or certified mail is returned to the secretary of state, or to his
or her office, showing the stamp of the United States postal
service that delivery has been refused, and the return receipt or
registered or certified mail is received by the secretary of state
by a means which may include electronic issuance and acceptance of
electronic return receipts. After receiving verification from the
United States postal service that acceptance of process, notice or
demand has been signed, the secretary of state shall notify the clerk's office of the court from which the process, notice or
demand was issued by a means which may include electronic
notification. If the process, notice or demand was refused or
undeliverable by the United States postal service, the secretary of
state shall return the refused or undeliverable mail to the clerk's
office from which the process, notice or demand was issued. No
process or notice may be served on the secretary of state or
accepted by him or her less than ten days before the return day of
the process or notice. The court may order continuances as may be
reasonable to afford each defendant opportunity to defend the
action or proceedings.
(d) This section does not prescribe the only means, or
necessarily the required means of serving a corporation.
ARTICLE 14. FOREIGN CORPORATIONS.
PART 1. CERTIFICATE OF AUTHORITY.
§31E-14-1410. Service on foreign corporation.
(a) The registered agent of a foreign corporation authorized
to conduct activities in this state is the corporation's agent for
service of process, notice, or demand required or permitted by law
to be served on the foreign corporation.
(b) A foreign corporation may be served by registered or
certified mail, return receipt requested, addressed to the
secretary of the foreign corporation at its principal office shown in its application for a certificate of authority or in its most
recent return required pursuant to section three, article twelve-c,
chapter eleven of this code if the foreign corporation:
(1) Has no registered agent or its registered agent cannot
with reasonable diligence be served;
(2) Has withdrawn from conducting activities in this state
under section one thousand four hundred twenty of this article; or
(3) Has had its certificate of authority revoked under section
one thousand four hundred thirty-one of this article.
(c)Service is perfected under subsection (b) of this section
at the earliest of:
(1) The date the foreign corporation receives the mail;
(2) The date shown on the return receipt, if signed on behalf
of the foreign corporation; or
(3) Five days after its deposit in the United States mail, as
evidenced by the postmark, if mailed postpaid and correctly
addressed.
(d) In addition to the methods of service on a foreign
corporation provided in subsections (a) and (b) of this section,
the secretary of state is hereby constituted the attorney-in-fact
for and on behalf of each foreign corporation authorized to conduct
affairs in this state pursuant to the provisions of this chapter.
The secretary of state has the authority to accept service of notice and process on behalf of each corporation and is an agent of
the corporation upon whom service of notice and process may be made
in this state for and upon each corporation. No act of a
corporation appointing the secretary of state as attorney-in-fact
is necessary. Service of any process, notice or demand on the
secretary of state may be made by delivering to and leaving with
the secretary of state the original process, notice or demand and
two copies of the process, notice or demand for each defendant,
along with the fee required by section two, article one, chapter
fifty-nine of this code. Immediately after being served with or
accepting any process or notice, the secretary of state shall: (1)
File in his or her office a copy of the process or notice, endorsed
as of the time of service, or acceptance;(2) transmit one copy of
the process or notice by registered or certified mail, return
receipt requested, by a means which may include electronic issuance
and acceptance of electronic return receipts, to: (A) The foreign
corporation's registered agent; or (B) if there is no registered
agent, to the individual whose name and address was last given to
the secretary of state's office as the person to whom notice and
process are to be sent, and if no person has been named, to the
principal office of the foreign corporation as that address was
last given to the secretary of state's office. If no address is
available on record with the secretary of state, then to the address provided on the original process, notice or demand, if
available; and (3) transmit the original process, notice or demand
to the clerk's office of the court from which the process, notice
or demand was issued. Service or acceptance of process or notice is
sufficient if return receipt is signed by an agent or employee of
the corporation, or the registered or certified mail sent by the
secretary of state is refused by the addressee and the registered
or certified mail is returned to the secretary of state, or to his
or her office, showing the stamp of the United States postal
service that delivery has been refused, and the return receipt or
registered or certified mail is received by the secretary of state
by a means which may include electronic issuance and acceptance of
electronic return receipts. After receiving verification from
United States postal service that acceptance of process, notice or
demand has been accepted, the secretary of state shall notify the
clerk's office of the court from which the process, notice or
demand was issued by means which may include electronic
notification. If the process, notice or demand was refused or
undeliverable by the United States postal service the secretary of
state shall return the refused or undeliverable mail to the clerk's
office of the court from which the process, notice or demand was
issued. No process or notice may be served on the secretary of
state or accepted by him or her less than ten days before the return day of the process or notice. The court may order
continuances as may be reasonable to afford each defendant
opportunity to defend the action or proceedings.
(e) Any foreign corporation conducting affairs in this state
without having been authorized to do so pursuant to the provisions
of this chapter is conclusively presumed to have appointed the
secretary of state as its attorney-in-fact with authority to accept
service of notice and process on behalf of the corporation and upon
whom service of notice and process may be made in this state for
and upon the corporation in any action or proceeding arising from
activities described in section one thousand four hundred one of
this article. No act of a corporation appointing the secretary of
state as its attorney-in-fact is necessary. Immediately after being
served with or accepting any process or notice, of which process or
notice two copies for each defendant are to be furnished to the
secretary of state with the original notice or process, together
with the fee required by section two, article one, chapter fifty-
nine of this code, the secretary of state shall file in his or her
office a copy of the process or notice, with a note endorsed of the
time of service or acceptance, and transmit one copy of the process
or notice by registered or certified mail, return receipt
requested, by a means which may include electronic issuance and
acceptance of electronic return receipts, to the corporation at the address of its principal office, which address shall be stated in
the process or notice. The service or acceptance of process or
notice is sufficient if the return receipt is signed by an agent or
employee of the corporation, or the registered or certified mail
sent by the secretary of state is refused by the addressee and the
registered or certified mail is returned to the secretary of state,
or to his or her office, showing thereon the stamp of the United
States postal service that delivery thereof has been refused, and
the return receipt or registered or certified mail is received by
the secretary of state by a means which may include electronic
issuance and acceptance of electronic return receipts. After
receiving verification from the United States postal service that
acceptance of process, notice or demand has been signed, the
secretary of state shall notify the clerk's office of the court
from which the process, notice or demand was issued by a means
which may include electronic notification. If the process, notice
or demand was refused or undeliverable by the United States postal
service the secretary of state shall return refused or
undeliverable mail to the clerk's office of the court from which
the process, notice or demand was issued. No process or notice may
be served on the secretary of state or accepted by him or her less
than ten days before the return date thereof. The court may order continuances as may be reasonable to afford each defendant
opportunity to defend the action or proceedings.
(f) This section does not prescribe the only means, or
necessarily the required means, of serving a foreign corporation.
CHAPTER 46A. WEST VIRGINIA CONSUMER CREDIT AND PROTECTION ACT.
ARTICLE 2. CONSUMER CREDIT PROTECTION.
§46A-2-137. Service of process on certain nonresidents.
Any nonresident person, except a nonresident corporation
authorized to do business in this state pursuant to the provisions
of chapter thirty-one of this code, who takes or holds any
negotiable instrument, nonnegotiable instrument, or contract or
other writing, arising from a consumer credit sale or consumer
lease which is subject to the provisions of this article, other
than a sale or lease primarily for an agricultural purpose, or who
is a lender subject to the provisions of section one hundred three
of this article, shall be conclusively presumed to have appointed
the secretary of state as his attorney-in-fact with authority to
accept service of notice and process in any action or proceeding
brought against him arising out of such consumer credit sale,
consumer lease or consumer loan. A person shall be considered a
nonresident hereunder if he is a nonresident at the time such
service of notice and process is sought. No act of such person
appointing the secretary of state shall be necessary. Immediately after being served with or accepting any such process or notice, of
which process or notice two copies for each defendant shall be
furnished the secretary of state with the original notice or
process, together with the fee required by section two, article
one, chapter fifty-nine of this code, the secretary of state shall
file in his office a copy of such process or notice, with a note
thereon endorsed of the time of service or acceptance, as the case
may be, and transmit one copy of such process or notice by
registered or certified mail, return receipt requested, by a means
which may include electronic issuance and acceptance of electronic
return receipts, to such person at his address, which address shall
be stated in such process or notice:
Provided, That after receiving
verification from the United States postal service that acceptance
of process or notice has been signed, the secretary of state shall
notify the clerk's office of the court from which the process or
notice was issued by a means which may include electronic
notification. If the process or notice was refused or undeliverable
by the United States postal service the secretary of state shall
return refused or undeliverable mail to the clerk's office of the
court from which the process or notice was issued. But no process
or notice shall be served on the secretary of state or accepted
fewer than ten days before the return date thereof. The court may
order such continuances as may be reasonable to afford each defendant opportunity to defend the action or proceeding.
The provisions for service of process or notice herein are
cumulative and nothing herein contained shall be construed as a bar
to the plaintiff in any action from having process or notice in
such action served in any other mode and manner provided by law.
CHAPTER 47. REGULATION OF TRADE.
ARTICLE 9. UNIFORM LIMITED PARTNERSHIP ACT.
§47-9-4. Secretary of state constituted attorney-in-fact for all
limited partnerships; manner of acceptance or service of
notice and process upon secretary of state; what constitutes
conducting affairs or doing or transacting business in this
state for purposes of this section.
The secretary of state is hereby constituted the attorney-in-
fact for and on behalf of every limited partnership created by
virtue of the laws of this state and every foreign limited
partnership authorized to conduct affairs or do or transact
business herein pursuant to the provisions of this article, with
authority to accept service of notice and process on behalf of
every such limited partnership and upon whom service of notice and
process may be made in this state for and upon every such limited
partnership. No act of such limited partnership appointing the
secretary of state such attorney-in-fact shall be necessary.
Immediately after being served with or accepting any such process or notice, of which process or notice two copies for each defendant
shall be furnished the secretary of state with the original notice
or process, together with the fee required by section two, article
one, chapter fifty-nine of this code, the secretary of state shall
file in his office a copy of such process or notice, with a note
thereon endorsed of the time of service or acceptance, as the case
may be, and transmit one copy of such process or notice by
registered or certified mail, return receipt requested, to the
person to whom notice and process shall be sent, whose name and
address were last furnished to the state officer at the time
authorized by statute to accept service of notice and process and
upon whom notice and process may be served; and if no such person
has been named, to the principal office of the limited partnership
at the address last furnished to the state officer at the time
authorized by statute to accept service of process and upon whom
process may be served, as required by law, or if no address is
available on record with the secretary of state then to the address
provided on the original process or process, if available. No
process or notice shall be served on the secretary of state or
accepted by him less than ten days before the return day thereof.
Such limited partnership shall pay the annual fee prescribed by
article twelve, chapter eleven of this code for the services of the
secretary of state as its attorney-in-fact.Any foreign limited partnership which shall conduct affairs or do
or transact business in this state without having been authorized
so to do pursuant to the provisions of this article shall be
conclusively presumed to have appointed the secretary of state as
its attorney-in-fact with authority to accept service of notice and
process on behalf of such limited partnership and upon whom service
of notice and process may be made in this state for and upon every
such limited partnership in any action or proceeding described in
the next following paragraph of this section. No act of such
limited partnership appointing the secretary of state as such
attorney-in-fact shall be necessary. Immediately after being served
with or accepting any such process or notice, of which process or
notice two copies for each defendant shall be furnished the
secretary of state with the original notice or process, together
with the fee required by section two, article one, chapter fifty-
nine of this code, the secretary of state shall file in his office
a copy of such process or notice, with a note thereon endorsed of
the time of service or acceptance, as the case may be, and transmit
one copy of such process or notice by registered or certified mail,
return receipt requested, by a means which may include electronic
issuance and acceptance of electronic return receipts, to such
limited partnership at the address of its principal office, which
address shall be stated in such process or notice. Such service or acceptance of such process or notice shall be sufficient if such
return receipt shall be signed by an agent or employee of such
limited partnership.. After receiving verification from the United
States postal service that acceptance of process or notice has been
signed, the secretary of state shall notify the clerk's office of
the court from which the process or notice was issued by a means
which may include electronic notification. If the process or notice
was refused or undeliverable by the United State postal service the
secretary of state shall return refused or undeliverable mail to
the clerk's office of the court from which the process or notice
was issued. No process or notice shall be served on the secretary
of state or accepted by him less than ten days before the return
date thereof. The court may order such continuances as may be
reasonable to afford each defendant opportunity to defend the
action or proceedings.
For the purpose of this section, a foreign limited partnership not
authorized to conduct affairs or do or transact business in this
state pursuant to the provisions of this article shall nevertheless
be deemed to be conducting affairs or doing or transacting business
herein (a) if such limited partnership makes a contract to be
performed, in whole or in part, by any party thereto in this state,
(b) if such limited partnership commits a tort, in whole or in
part, in this state, or (c)if such limited partnership manufactures, sells, offers for sale or supplies any product in a
defective condition and such product causes injury to any person or
property within this state notwithstanding the fact that such
limited partnership had no agents, servants or employees or
contacts within this state at the time of said injury. The making
of such contract, the committing of such tort or the manufacture or
sale, offer of sale or supply of such defective product as herein
above described shall be deemed to be the agreement of such limited
partnership that any notice or process served upon, or accepted by,
the secretary of state pursuant to the next preceding paragraph of
this section in any action or proceeding against such limited
partnership arising from or growing out of such contract, tort or
manufacture or sale, offer of sale or supply of such defective
product shall be of the same legal force and validity as process
duly served on such limited partnership in this state.
CHAPTER 56. PLEADING AND PRACTICE.
ARTICLE 3. WRITS, PROCESS AND ORDER OF PUBLICATION.
§56-3-31. Actions by or against nonresident operators of motor
vehicles involved in highway accidents; appointment of
secretary of state, insurance company, as agents; service of
process.
(a) Every nonresident, for the privilege of operating a motor
vehicle on a public street, road or highway of this state, either personally or through an agent, appoints the secretary of state, or
his or her successor in office, to be his or her agent or attorney-
in-fact upon whom may be served all lawful process in any action or
proceeding against him or her in any court of record in this state
arising out of any accident or collision occurring in the state of
West Virginia in which the nonresident was involved:
Provided, That
in the event process against a nonresident defendant cannot be
effected through the secretary of state, as provided by this
section, for the purpose only of service of process, the
nonresident motorist shall be considered to have appointed as his
or her agent or attorney-in-fact any insurance company which has a
contract of automobile or liability insurance with the nonresident
defendant.
(b) For purposes of service of process as provided in this
section, every insurance company shall be considered the agent or
attorney-in-fact of every nonresident motorist insured by that
company if the insured nonresident motorist is involved in any
accident or collision in this state and service of process cannot
be effected upon the nonresident through the office of the
secretary of state. Upon receipt of process as provided in this
section, the insurance company may, within thirty days, file an
answer or other pleading or take any action allowed by law on
behalf of the defendant.
(c) A nonresident operating a motor vehicle in this state,
either personally or through an agent, is considered to acknowledge
the appointment of the secretary of state, or, as the case may be,
his or her automobile insurance company, as his or her agent or
attorney-in-fact, or the agent or attorney-in-fact of his or her
administrator, administratrix, executor or executrix in the event
the nonresident dies, and furthermore is considered to agree that
any process against him or her or against his or her administrator,
administratrix, executor or executrix, which is served in the
manner provided in this section, shall be of the same legal force
and validity as though the nonresident or his or her administrator,
administratrix, executor or executrix were personally served with
a summons and complaint within this state.
Any action or proceeding may be instituted, continued or
maintained on behalf of or against the administrator,
administratrix, executor or executrix of any nonresident who dies
during or subsequent to an accident or collision resulting from the
operation of a motor vehicle in this state by the nonresident or
his or her duly authorized agent.
(d) Service of process upon a nonresident defendant shall be
made by leaving the original and two copies of both the summons and
complaint, together with the bond certificate of the clerk, and the
fee required by section two, article one, chapter fifty-nine of this code with the secretary of state, or in his or her office, and
the service shall be sufficient upon the nonresident defendant or,
if a natural person, his or her administrator, administratrix,
executor or executrix:
Provided, That notice of service and a copy
of the summons and complaint shall be sent by registered or
certified mail, return receipt requested, by a means which may
include electronic issuance and acceptance of electronic return
receipts, by the secretary of state to the nonresident defendant.
.. After receiving verification from the United States postal
service that acceptance of process, notice or demand has been
signed, the secretary of state shall notify the clerk's office of
the court from which the process, notice or demand was issued by a
means which may include electronic notification. If the process,
notice or demand was refused or undeliverable by the United State
postal service the secretary of state shall return refused or
undeliverable mail to the clerk's office of the court from which
the process, notice or demand was issued. The court may order any
reasonable continuances to afford the defendant opportunity to
defend the action.
(e) The fee remitted to the secretary of state at the time of
service shall be taxed in the costs of the proceeding. The
secretary of state shall keep a record in his or her office of all
service of process and the day and hour of service of process.
(f) In the event service of process upon a nonresident
defendant cannot be effected through the secretary of state as
provided by this section, service may be made upon the defendant's
insurance company. The plaintiff shall file with the clerk of the
circuit court an affidavit alleging that the defendant is not a
resident of this state; that process directed to the secretary of
state was sent by registered or certified mail, return receipt
requested; that the registered or certified mail was returned to
the office of the secretary of state showing the stamp of the post
office department that delivery was refused or that the notice was
unclaimed or that the defendant addressee moved without any
forwarding address; and that the secretary of state has complied
with the provisions of subsection (d) of this section. Upon receipt
of process the insurance company may, within thirty days, file an
answer or other pleading and take any action allowed by law in the
name of the defendant.
(g) The following words and phrases, when used in this
article, for the purpose of this article and unless a different
intent on the part of the Legislature is apparent from the context,
have the following meanings:
(1) "Duly authorized agent" means and includes, among others,
a person who operates a motor vehicle in this state for a
nonresident as defined in this section and chapter, in pursuit of business, pleasure or otherwise, or who comes into this state and
operates a motor vehicle for, or with the knowledge or acquiescence
of, a nonresident; and includes, among others, a member of the
family of the nonresident or a person who, at the residence, place
of business or post office of the nonresident, usually receives and
acknowledges receipt for mail addressed to the nonresident.
(2) "Motor vehicle" means and includes any self-propelled
vehicle, including a motorcycle, tractor and trailer, not operated
exclusively upon stationary tracks.
(3) "Nonresident" means any person who is not a resident of
this state or a resident who has moved from the state subsequent to
an accident or collision and among others includes a nonresident
firm, partnership, corporation or voluntary association, or a firm,
partnership, corporation or voluntary association that has moved
from the state subsequent to an accident or collision.
(4) "Nonresident plaintiff or plaintiffs" means a nonresident
who institutes an action in a court in this state having
jurisdiction against a nonresident in pursuance of the provisions
of this article.
(5) "Nonresident defendant or defendants" means a nonresident
motorist who, either personally or through his or her agent,
operated a motor vehicle on a public street, highway or road in this state and was involved in an accident or collision which has
given rise to a civil action filed in any court in this state.
(6) "Street", "road" or "highway" means the entire width
between property lines of every way or place of whatever nature
when any part of the street, road or highway is open to the use of
the public, as a matter of right, for purposes of vehicular
traffic.
(7) "Insurance company" means any firm, corporation,
partnership or other organization which issues automobile
insurance.
(h) The provision for service of process in this section is
cumulative and nothing contained in this section shall be construed
as a bar to the plaintiff in any action from having process in the
action served in any other mode and manner provided by law.
§56-3-33. Actions by or against nonresident persons having certain
contracts with this state; authorizing secretary of state to
receive process; bond and fees; service of process;
definitions; retroactive application.
(a) The engaging by a nonresident, or by his or her duly
authorized agent, in any one or more of the acts specified in
subdivisions (1) through (7) of this subsection shall be deemed
equivalent to an appointment by such nonresident of the secretary
of state, or his or her successor in office, to be his or her true and lawful attorney upon whom may be served all lawful process in
any action or proceeding against him or her, in any circuit court
in this state, including an action or proceeding brought by a
nonresident plaintiff or plaintiffs, for a cause of action arising
from or growing out of such act or acts, and the engaging in such
act or acts shall be a signification of such nonresident's
agreement that any such process against him or her, which is served
in the manner hereinafter provided, shall be of the same legal
force and validity as though such nonresident were personally
served with a summons and complaint within this state:
(1) Transacting any business in this state;
(2) Contracting to supply services or things in this state;
(3) Causing tortious injury by an act or omission in this
state;
(4) Causing tortious injury in this state by an act or
omission outside this state if he or she regularly does or solicits
business, or engages in any other persistent course of conduct, or
derives substantial revenue from goods used or consumed or services
rendered in this state;
(5) Causing injury in this state to any person by breach of
warranty expressly or impliedly made in the sale of goods outside
this state when he or she might reasonably have expected such
person to use, consume or be affected by the goods in this state:
Provided, That he or she also regularly does or solicits business,
or engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed or services
rendered in this state;
(6) Having an interest in, using or possessing real property
in this state; or
(7) Contracting to insure any person, property or risk located
within this state at the time of contracting.
(b) When jurisdiction over a nonresident is based solely upon
the provisions of this section, only a cause of action arising from
or growing out of one or more of the acts specified in subdivisions
(1) through (7), subsection (a) of this section may be asserted
against him or her.
(c)Service shall be made by leaving the original and two
copies of both the summons and the complaint, and the fee required
by section two, article one, chapter fifty-nine of this code with
the secretary of state, or in his or her office, and such service
shall be sufficient upon such nonresident:
Provided, That notice of
such service and a copy of the summons and complaint shall
forthwith be sent by registered or certified mail, return receipt
requested, by a means which may include electronic issuance and
acceptance of electronic return receipts, by the secretary of state
to the defendant at his or her nonresident address and the defendant's return receipt signed by himself or herself or his or
her duly authorized agent or the registered or certified mail so
sent by the secretary of state which is refused by the addressee
and which registered or certified mail is returned to the secretary
of state, or to his or her office, showing thereon the stamp of the
post-office department that delivery has been refused, After
receiving verification from the United States postal service that
acceptance of process, notice or demand has been signed, the
secretary of state shall notify the clerk's office of the court
from which the process, notice or demand was issued by a means
which may include electronic notification. If the process, notice
or demand was refused or undeliverable by the United States postal
service the secretary of state shall return refused or
undeliverable mail to the clerk's office of the court from which
the process, notice or demand was issued. If any defendant served
with summons and complaint fails to appear and defend within thirty
days of service, judgment by default may be rendered against him or
her at any time thereafter. The court may order such continuances
as may be reasonable to afford the defendant opportunity to defend
the action or proceeding.
(d) The fee remitted to the secretary of state at the time of
service shall be taxed in the costs of the action or proceeding. The secretary of state shall keep a record in his or her office of
all such process and the day and hour of service thereof.
(e) The following words and phrases, when used in this
section, shall for the purpose of this section and unless a
different intent be apparent from the context, have the following
meanings:
(1) "Duly authorized agent" means and includes among others a
person who, at the direction of or with the knowledge or
acquiescence of a nonresident, engages in such act or acts and
includes among others a member of the family of such nonresident or
a person who, at the residence, place of business or post office of
such nonresident, usually receives and receipts for mail addressed
to such nonresident.
(2) "Nonresident" means any person, other than voluntary
unincorporated associations, who is not a resident of this state or
a resident who has moved from this state subsequent to engaging in
such act or acts, and among others includes a nonresident firm,
partnership or corporation or a firm, partnership or corporation
which has moved from this state subsequent to any of said such act
or acts.
(3) "Nonresident plaintiff or plaintiffs" means a nonresident
of this state who institutes an action or proceeding in a circuit court in this state having jurisdiction against a nonresident of
this state pursuant to the provisions of this section.
(f) The provision for service of process herein is cumulative
and nothing herein contained shall be construed as a bar to the
plaintiff in any action or proceeding from having process in such
action served in any other mode or manner provided by the law of
this state or by the law of the place in which the service is made
for service in that place in an action in any of its courts of
general jurisdiction.
(g) This section shall not be retroactive and the provisions
hereof shall not be available to a plaintiff in a cause of action
arising from or growing out of any of said acts occurring prior to
the effective date of this section.