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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