STATE OF WEST VIRGINIA


      At a Regular Term of the Supreme Court of Appeals continued and held at Charleston, Kanawha County, on the 24^th day of January 2007, the following order was made and entered:

RE:         AMENDMENT TO RULE 4(d)(1)(E) OF THE RULES OF CIVIL PROCEDURE

      On a former day to-wit, September 21, 2006 the Court published for comment the proposed amendment to Rule 4(d)(1)(E) of the Rules of Civil Procedure. No comments were received.

      On this day came the Court on its own motion and proceeded to consider the proposed amendment. Upon consideration whereof, the Court is of opinion to and doth hereby adopt the following rule with the amendment to read as follows, effective July 1, 2007. Justice Starcher and Justice Albright would not adopt the amendment. Deletions are indicated by strikethroughs and insertions are indicated by underscoring.

“ Rule 4. Summons.

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(d)(1)(E) The clerk sending a copy of the summons and complaint by first class mail, postage prepaid, to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to Form 14 and a return envelope, postage prepaid, addressed to the clerk.

The plaintiff shall furnish the person making service with such copies of the complaint or order as are necessary and shall advance the costs of service. For service by certified mail, the plaintiff shall pay to the clerk a fee of ten twenty dollars for each complaint to be served. For service by first class mail, the plaintiff shall pay to the clerk a fee of five dollars for each complaint to be served.

Service pursuant to subdivision (d)(1)(D) shall not be the basis for the entry of a default or a judgment by default unless the record contains a return receipt showing acceptance by the defendant or a return envelope showing refusal of the registered or certified mail by the defendant. If delivery of the summons and complaint pursuant to subdivision (d)(1)(D) is refused, the clerk, promptly upon receipt of the notice of such refusal, shall mail to the defendant, by first class mail, postage prepaid, a copy of the summons and complaint and a notice that despite such refusal, the case will proceed and that judgment
by default will be rendered against the defendant unless the defendant appears to defend the suit. Any such default or judgment by default shall be set aside pursuant to Rule 55(c) or Rule 60(b) if the defendant demonstrates to the court that the return receipt was signed by or delivery was refused by an unauthorized person. The notice and acknowledgment of receipt of the summons and complaint pursuant to subdivision (d)(1)(E) shall be executed in the manner prescribed on Form 14. Unless good cause is shown for failure to complete and return the notice and acknowledgment of receipt of summons and complaint pursuant to subdivision (d)(1)(E) within twenty (20) days after mailing, the court may order the payment of cost of personal service by the person served. Service pursuant to subdivision (d)(1)(E) shall not be the basis for entry of default or a judgment by default unless the record contains a notice and acknowledgment of receipt of the summons and complaint. If no acknowledgment of service pursuant to subdivision (d)(1)(E) is received by the clerk within twenty (20) days after the date of mailing, service of such summons and complaint shall be made under subdivisions (d)(1)(A), (B), (C), or (D).”



A True Copy

                  Attest: ________________________________________
                              Deputy Clerk, Supreme Court of Appeals