(On Behalf of the Office of the Secretary of State)
April 30, 1997
____________
Referred to Committee on Judiciary
SUMMARY--Revises requirements for filing service of process with secretary of state. (BDR 2-516)
FISCAL NOTE: Effect on Local Government: No.
Effect on the State or on Industrial Insurance: No.
EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.
AN ACT relating to service of process; imposing additional requirements for filing certain service of process with the secretary of state; eliminating the authority to file service of process on certain companies and corporations with the secretary of state; requiring a complaint brought against the State of Nevada to be served upon the attorney general; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1 NRS 14.030 is hereby amended to read as follows:
14.030 1. If any such company, association or municipal corporation [shall fail] fails to appoint [such] a resident agent, or [fail] fails to file [such] a certificate of acceptance of appointment for 30 days after a vacancy occurs in such agency, on the production of a certificate of the secretary of state showing either fact, which certificate [shall be] is conclusive evidence of the fact so certified to be made a part of the return of service, [it shall be lawful to serve such] the company, association or municipal corporation may be served with any and all legal process by delivering a copy to the secretary of state, or, in his absence, to any [duly appointed and acting] deputy secretary of state, and such service [shall be] is valid to all intents and purposes. The copy must:
(a) Include a specific citation to the provisions of this section. The secretary of state may refuse to accept such service if the proper citation is not included.
(b) Be accompanied by a fee of $10.
The secretary of state shall keep a copy of the legal process received pursuant to this section in his office for at least 1 year after receipt thereof and shall make those records available for public inspection during normal business hours.
2. In all cases of such service , the defendant [shall have] has 40 days , [(] exclusive of the day of service , [)] within which to answer or plead.
3. Before such service [shall be] is authorized, the plaintiff shall make or cause to be made and filed an affidavit setting forth the facts, showing that due diligence has been used to ascertain the whereabouts of the officers of such company, association or municipal corporation, and the facts showing that direct or personal service on, or notice to, such corporation , association or municipal corporation cannot be had.
4. If it [shall appear from such] appears from the affidavit that there is a last known address of such company, association or municipal corporation, or any known officers thereof, the plaintiff shall, in addition to and after such service on the secretary of state, mail or cause to be mailed to such corporation, association or municipal corporation, or to [such] the known officer, at such address, by registered or certified mail, a copy of the summons and a copy of the complaint, and in all such cases the defendant [shall have] has 40 days [from] after the date of [such] the mailing within which to appear in the action.
5. This section [shall be construed as giving] provides an additional [mode and] manner of serving process, and [as not affecting] does not affect the validity of any other valid service.
Sec. 2 NRS 14.080 is hereby amended to read as follows:
14.080 1. Any company, firm, partnership, corporation or association created and existing under the laws of any other state, territory, foreign government or the Government of the United States, which manufactures, produces, makes, markets or otherwise supplies directly or indirectly any product for distribution, sale or use in this state may be lawfully served with any legal process in any action to recover damages for an injury to a person or property resulting from such distribution, sale or use in this state [in the manner prescribed in this section.
2. Service of process as authorized under the provisions of subsection 1 shall be accomplished:
(a) By delivering a copy of such process to the secretary of state; and
(b) By] by mailing to the last known address of the company, firm, partnership, corporation or association, by registered or certified mail return receipt requested, a copy of the summons and a copy of the complaint.
[3.] 2. In all cases of such service , the defendant [shall have] has 40 days, exclusive of the day of service, within which to answer or plead.
[4.] 3. This section provides an additional manner of serving process and does not invalidate any other service.
Sec. 3 NRS 41.031 is hereby amended to read as follows:
41.031 1. The State of Nevada hereby waives its immunity from liability and action and hereby consents to have its liability determined in accordance with the same rules of law as are applied to civil actions against natural persons and corporations, except as otherwise provided in NRS 41.032 to 41.038, inclusive, 485.318, subsection [4] 3 and any statute which expressly provides for governmental immunity, if the claimant complies with the limitations of NRS 41.010 or the limitations of NRS 41.032 to 41.036, inclusive . [, or the limitations of NRS 41.010.] The State of Nevada further waives the immunity from liability and action of all political subdivisions of the state, and their liability must be determined in the same manner, except as otherwise provided in NRS 41.032 to 41.038, inclusive, subsection [4] 3 and any statute which expressly provides for governmental immunity, if the claimant complies with the limitations of NRS 41.032 to 41.036, inclusive.
2. An action may be brought under this section against the State of Nevada or any political subdivision of the state. In any action against the State of Nevada, the action must be brought in the name of the State of Nevada on relation of the particular department, commission, board or other agency of the state whose actions are the basis for the suit. An action against the State of Nevada must be filed in the county where the cause or some part thereof arose or in Carson City. In an action against the State of Nevada, the summons and a copy of the complaint must be served upon [the secretary of state and the] :
(a) The attorney general, or a person designated by the attorney general, at the office of the attorney general in Carson City; and
(b) The person serving in the office of administrative head of the named agency.
3. [Upon receipt of such a complaint, the secretary of state shall deliver a copy of the complaint to the attorney general.
4.] The State of Nevada does not waive its immunity from suit conferred by Amendment XI of the Constitution of the United States.
Sec. 4 NRS 78.750 is hereby amended to read as follows:
78.750 1. In any action commenced against any corporation in any court of this state, service of process may be made in the manner provided by law and rule of court for the service of civil process.
2. Service of process on a corporation which has been continued as a body corporate under NRS 78.585 may be made by mailing copies of the process and any associated documents by certified mail, with return receipt requested, to:
(a) [The secretary of state;
(b)] The resident agent of the corporation, if there is one; and
[(c)] (b) Each officer and director of the corporation as named in the list last filed with the secretary of state before the dissolution or expiration of the corporation or the forfeiture of its charter.
The manner of serving process described in this subsection does not affect the validity of any other service authorized by law.
Sec. 5 NRS 86.261 is hereby amended to read as follows:
86.261 1. The resident agent appointed by a limited-liability company is an agent of the company upon whom any process, notice or demand required or permitted by law to be served upon the company may be served.
2. [If a limited-liability company fails to appoint or maintain a resident agent in this state, or if its resident agent cannot with reasonable diligence be found at the registered office, then the secretary of state is an agent of the company upon whom any process, notice or demand may be served. Service on the secretary of state of any process, notice or demand must be made by delivering to and leaving with him, or with any clerk of his office, duplicate copies of the process, notice or demand. If any process, notice or demand is served on the secretary of state, he shall immediately cause one of the copies thereof to be forwarded by registered mail addressed to the limited-liability company at its registered office. Any service so had on the secretary of state must be returnable in not less than 30 days.
3. The secretary of state shall keep a record of all process, notices and demands served upon him pursuant to this section and shall record therein the time of service and his action with reference thereto.
4.] This section does not limit or affect the right to serve any process, notice or demand required or permitted by law to be served upon a limited-liability company in any other manner permitted by law.
Sec. 6 NRS 119.130 is hereby amended to read as follows:
119.130 1. No subdivision or lot, parcel, unit or interest in any subdivision may in any way be offered or sold in this state by any person until:
[1.] (a) He has appointed in writing the secretary of state to be his [attorney,] agent, upon whom all process, in any action or proceeding against him, may be served, and in this writing he agrees that any process against him which is served on the secretary of state is of the same legal validity as if served on him and that the appointment continues in force as long as any liability remains outstanding against him in this state. The written appointment must be acknowledged before a [person authorized to take acknowledgments of deeds] notary public and must be filed in the office of the secretary of state [.] with a fee of $10 for accepting and transmitting any legal process served on the secretary of state. Copies certified by the secretary of state are sufficient evidence of the appointment and agreement.
[2.] (b) He has received a license under NRS 119.160.
2. Service of process authorized by paragraph (a) of subsection 1 must be made by filing with the secretary of state:
(a) Two copies of the legal process. The copies must include a specific citation to the provisions of this section. The secretary of state may refuse to accept such service if the proper citation is not included in each copy.
(b) A fee of $10.
The secretary of state shall forthwith forward one copy of the legal process to the licensee, by registered or certified mail prepaid to the licensee.
Sec. 7 NRS 599B.210 is hereby amended to read as follows:
599B.210 1. Every registrant, other than a registrant incorporated in this state, shall file with the secretary of state an irrevocable consent appointing the secretary of state as his agent to receive service of any lawful process in any action or proceeding against him arising pursuant to this chapter. Any lawful process against the registrant served upon the secretary of state as provided in subsection 2 has the same force and validity as if served upon the registrant personally.
2. [Process] Service of process authorized by subsection 1 must be [served by delivering to and leaving] made by filing with the secretary of state [duplicate] :
(a) Two copies of the process . [with payment of a] The copies must include a specific citation to the provisions of this section. The secretary of state may refuse to accept such service if the proper citation is not included in each copy.
(b) A fee of $10.
The secretary of state shall forthwith forward one copy of the process by registered or certified mail prepaid to the registrant, or in the case of a registrant organized under the laws of a foreign government, to the United States manager or last appointed United States general agent of the registrant, giving the day and the hour of the service.
3. Service of process is not complete until the copy thereof has been mailed and received by the registrant, and the receipt of the addressee is prima facie evidence of the completion of the service.
4. If service of summons is made upon the secretary of state in accordance with the provisions of this section, the time within which the registrant is required to appear is extended 10 days.
Sec. 8 NRS 662.245 is hereby amended to read as follows:
662.245 1. Except as otherwise specifically provided by statute, no bank or other organization, and no officer, employee or agent of such an organization, acting on its behalf, may be appointed to act as fiduciary by any court or by authority of any law of this state unless, in addition to any other requirements of law, the bank or other organization:
(a) Is organized under the laws of and has its principal place of business in this state or is a depository institution authorized by the commissioner to operate a branch or agency in this state;
(b) Is a national banking association which has its principal place of business in this state;
(c) Associates as cofiduciary a bank whose principal place of business is in this state; or
(d) Is a national bank, banking corporation, trust corporation or trust company which:
(1) Is organized under the laws of and has its principal place of business in another state which allows banks, trust corporations or trust companies organized under the laws of this state to act as fiduciary;
(2) Is authorized by its charter to act as fiduciary; and
(3) Before the appointment as fiduciary, files with the secretary of state a document, acknowledged before a [person authorized to take acknowledgments of deeds,] notarial officer, which:
(I) Appoints the secretary of state as its [attorney] agent upon whom all process in any action or proceeding against it may be served; [and]
(II) Contains its agreement that the appointment continues in force as long as any liability remains outstanding against it in this state, and that any process against it which is served on the secretary of state is of the same legal validity as if served on it personally [.] ;
(III) Contains an address to which the secretary of state may mail the process when received; and
(IV) Is accompanied by a fee of $10.
A copy of the document required by this subparagraph, certified by the secretary of state, is sufficient evidence of the appointment and agreement.
2. A court with jurisdiction over the accounts of a fiduciary that is a national bank, banking corporation, trust corporation or trust company described in paragraph (d) of subsection 1, may require such a fiduciary to provide a bond to ensure the performance of its duties as fiduciary, in the same manner and to the same extent as the court may require such a bond from a fiduciary that is a banking or other corporation described in paragraph (a) or (b) of subsection 1.
3. Service of process authorized by subparagraph (3) of paragraph (d) of subsection 1 must be made by filing with the secretary of state:
(a) Two copies of the legal process. The copies must include a specific citation to the provisions of this section. The secretary of state may refuse to accept such service if the proper citation is not included in each copy.
(b) A fee of $10.
The secretary of state shall forthwith forward one copy of the legal process to the bank or other organization, by registered or certified mail prepaid to the address provided in the document filed pursuant to subparagraph (3) of paragraph (d) of subsection 1.
4. As used in this section:
(a) "Fiduciary" means an executor, commissioner, guardian of minors or estates, receiver, depositary or trustee.
(b) "Notarial officer" has the meaning ascribed to it in NRS 240.005.
(c) "State" means any state or territory of the United States, or the District of Columbia.