WEST virginia legislature
2020 regular session
Introduced
Senate Bill 670
By Senator Weld
[Introduced January 31,
2020; referred
to the Committee on the Judiciary]
A BILL to amend and reenact §56-3-33 of the Code of West Virginia, 1931, as amended, relating to amending the manner of service of process on nonresident persons or corporate entities.
Be it enacted by the Legislature of West Virginia:
ARTICLE 3. WRITS, PROCESS AND ORDER OF PUBLICATION.
§56-3-33. Actions by or against nonresident persons having certain contacts 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
considered equivalent to an appointment by such a 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
the 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 §59-1-2 of this code with
the Secretary of State, or in his or her office, and such this service
shall be sufficient upon such the nonresident: Provided,
That notice of such the 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 create a preservation duplicate from which a
reproduction of the stored record may be retrieved which truly and accurately
depicts the image of the original record. The Secretary of State may destroy or
otherwise dispose of the original returned or undeliverable mail. Written
notice of the action by the Secretary of State must then be provided by
certified mail, return receipt requested, facsimile, or by electronic 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 30 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. If the certified mail was returned by the United States Postal
Service as unclaimed, unable to forward or with any other notation other than
“accepted” or “refused”, notice may be served as follows:
(1) In any manner accepted as service within the domiciled state or the nonresident, or otherwise; or
(2) In any manner otherwise permitted by West Virginia Rules of Civil Procedure 4(d)(7) or (8) for corporations and any way permitted by West Virginia Rules of Civil Procedure 4(c) for individuals or noncorporate entities.
(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 the nonresident
or a person who, at the residence, place of business or post office of such
the nonresident, usually receives and receipts for mail addressed to such
the 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
may 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
may not be retroactive and the provisions hereof shall may
not be available to a plaintiff in a cause of action arising from or growing
out of any of said the acts occurring prior to the effective date
of this section.
NOTE: The purpose of this bill is to amend the manner of service of process on non-resident persons or corporate entities.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.