Certificates of service in South Carolina state courts

Many attorneys issue certificates of service (also known as proofs of service) with the motions, orders, pleadings and discovery they issue in filed cases. I sometimes get asked if such certificates are necessary. Except for the summons and complaint they are not. However I have a suspicion why many attorneys still issue them.

That suspicion is based upon how law students are taught the rules of procedure. Typically these rules are taught based on the Federal Rules of Procedure and the Federal Rules require “a certificate of service” for “[a]ny paper after the complaint that is required to be served.” FRCP 5(d)(1). Since we learn in law school to file certificates of service with any paperwork that is required to be formally served, most attorneys simply do what they were taught to do in law school.

However such certificates are unnecessary in South Carolina’s state courts. South Carolina’s parallel rule of procedure similarly requires proof of service of the summons and compliant be filed. It further indicates that other paperwork which must be served [such as pleadings, motions and orders] must also be filed with the court. However, there is no requirement of a certificate of service for such subsequent paperwork:

All papers required to be served upon a party except as provided in Rule 26(g)(1) [which relates to discovery], shall be filed with the court within five (5) days after service thereof. The summons and complaint shall be filed before service. Proof of service shall be filed within ten (10) days after service of the summons and complaint. Upon failure to serve the summons and complaint, the action may be dismissed by the court on the court’s own initiative or upon application of any party. Upon failure of a party to file other pleadings, motions, or papers, the court may permit filing or proceed as though the same had not been served.

SCRCP 5(d)(1).

This rule of procedure creates an odd system by allowing service before filing. Technically one can serve unfiled paperwork on an opposing party and that constitutes good service even if one never serves the opposing party a filed copy. Occasionally, in my years of practice, a party may send me an unfiled copy of paperwork but may modify that paperwork before filing it. Since service of an unfiled copy of anything but the summons and complaint is still good service the unfiled (but subsequently revised) paperwork exists in a figurative legal limbo, with the court allowed to permit filing or proceed as though it was never served. That’s why most attorneys serve the filed copy of these documents and most attorneys don’t begin preparing a response to these documents until they receive a filed copy. I certainly want to make sure I am responding to what was filed with the court in case the document was never filed or subsequently revised before filing.

Still, there’s no requirement for certificates of service with filed or unfiled paperwork. Attorneys who issue them are doing unnecessary work and these submissions make one suspect they’ve never compared the State and Federal versions of Rule 5(d)(1).

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  • Greg, wile I use certificates of service at the foot of my document, I have never served a filed copy of a answer, answer and counterclaim, or reply to counterclaim. If you wait for the filed copy from me you will default because I mail the pleading to the opposing lawyer at the same time I mail it to the clerk of court.

    I do not use certificates of service because I was taught to do so in law school. I use them because they are convenient, practical, and make my live easier. There is no requirement that I date my summons but I date it so that I will know when I prepared it.

    Assume that you are absolutely correct that not proof, certificate, or affidavit of service is necessary, what happens when you get to court and the other party is not there? What if the other party denies timely service? It seems to me that over the “long haul,” I will benefit from filed a certificate of service, particularly where it is automatically inserted into the document by Hot Docs, my document assembly software.

    My recollection is that somewhere the rules say that prior practices are carried forward but I cannot find it.

    • I simply keep a copy of my transmittal letter and provide a copy to the court if the opposing party/counsel fails to show up for the hearing.

      In my primary county (Charleston) I can download anything that’s been filed in a case I’ve appeared in directly from the court’s website. I simply download a filed copy before I respond. My concern is that what gets filed might be different than the copy I was mailed.

  • I’m in camp with Mr. McDow. Practicality. Utilizing a Certificate of Service allows me to know, at a glance, where things stand insofar as service goes. The same could be done with a mere cover letter, of course, but I’m a creature of habit.

  • I agree that a certificate or proof of service is not required by rule in those circumstances, I also agree that the effort to produce one is de minimus and the benefits are many, expecially when one represents a governmental agency whose every move is scrutinized carefully by the court. As there is no prescribed form, however, I find that a cover letter with a certified mail receipt, even without a signed green card, works just as well when a party or opposing counsel claims lack of notice.

  • I’ll serve an unfiled copy if I’m up against a deadline, but I will generally serve a filed copy later as well.

    I also do a separate Certificate of Service for everything, and I’m neurotic enough to go one step farther – I also file them all with the Court. Unfortunately, not everyone is honest, and I think if there is a question of service/notice, it can be persuasive that my Certificate is clocked within 5 days of the date I claim to have served the document.

  • I agree with your reading of the rules, but I also follow the procedures used by Ms. Dell. A few years ago I began executing a Certificate of Service for everything as self-protection against any party claiming that he or she was not served with a document. It is a small amount of extra work that bolsters my argument of service later should a party state they did not receive notice of a filing.

  • G. Simms McDowell, III

    I would send it Priority Mail and pull the delivery dates off the internet.

  • David Schwalbauch

    I recently been using your website for tons of information on my legal matter, i find it very useful in times im straining to find Rules of civil procedure. but here is my question,

    I certified mailed a production of documents, request to admit, and a second set of interrogatories to the defendant. he kindly responded that he doesn’t have to send me the second set of interrogatories because they where already sent out in Jun a year later, i sent the second set recently as for the interrogatories witch where a total different set of question to the defendant. I’m positive that rule 26(c) says that he has to answer as many set of interrogatories i send him.

    Now the production of documents i sent to his office he is saying he doesn’t have to answer to the production of documents because we have already engaged in written discovery. (former lawyer) further more that my last attorney didn’t ask or request for it in discovery. so he doesn’t have to send me anything.

    Now the request to admit i know hasn’t been done but i sent him the request to admit for his client to answer within the same document holder as the rest of them. because he hadn’t received it last June from my last attorney.

    what is he talking about that he doesn’t have to answer or comply because my other attorney never sent him anything or hes already done it?,
    -under civil rules of procedure rule 26 discovery is concluded to be admit, interrogatories, production of documents and depositions?

    What can i do? we have a temporary hearing for relief on the 26th this month but our final hearing is on sep 16. there is no time to file a motion to comply.
    even if i do i wont get the documents before i have to appear in court.

    Is there a rule that i can ask the courts to grant me default judgement because hes not complied to the discovery?

    What would you do in my situation?

    • Get a lawyer.

      • David

        That’s the expected response. Its to late for that. I’ve contacted many and with the stuff I have a monkey could walk in that court and walk out with a judgement in there favor. Just the loop holes in this is holding it up. Good case easy win but my kids will suffer because the money. When and where did this world turn. Thank you for the advice but I’m not gonna hive up.

  • Marc Modo

    Very useful website. I’ve been trying to determine whether it is valid service of process where the plaintiff’s relative – who is not party to the action but is mentioned in the facts of the complaint – serves the summons and complaint on the defendant. Rule 4 suggest that there is no problem here – service by “by any other person not less than eighteen (18) years of age, not an attorney in or a party to the action.” Any thoughts?

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