1.  Summons; issuance.  Upon the filing of the petition pursuant to this chapter, the clerk of the district court shall issue a summons for service upon each defendant in accordance with this act.  Additional summonses may be issued as requested.

Comment

This is essentially identical to K.S.A. 61-1801.

2.  Summons; time for appearance; form. 
(a) The summons shall be issued by the clerk, dated the day it is issued and contain the information set forth in the rules to be adopted by the supreme court of this state.  The summons shall state the time when the law requires the defendant to appear or file an answer in response to the petition, and shall notify such defendant that in case of such defendant's failure to appear or file an answer, judgment by default will be rendered against such defendant for the relief demanded in the petition.  The summons shall be in substantially the form set forth in the rules to be adopted hereunder by the supreme court.
(b)  The time stated in the summons requiring the defendant to appear in response to the petition shall be determined by the court. Such time shall be not less than 11 nor more than 50 days after the date the summons is issued. 

Comment

Present law (K.S.A. 61-1802) dictates what information is to be set forth in the summons.  Under the new section, the form of the summons and the manner of issuance will be set forth in a supreme court rule.  This will allow, among other things, for something other than a signature on the summons by the clerk.

The time for appearance by the defendant under a summons is not less than 11 nor more than 50 days after issuance of summons.  Current law is not less than 11 nor more than 35 days.

3.  Methods of service or process; persons authorized to serve process.
(a)  Service, levy and execution of all process under this act shall be made by a sheriff or deputy within the sheriff's county, by an attorney admitted to the practice of law before the supreme court of Kansas, by a party to a lawsuit, or by some person appointed as a process server by a judge, except that a subpoena may also be served by any person who is not a party and is not less than 18 years of age.  An appointed process server may be an individual, corporation, partnership, court employee or other legal entity.  An authorized attorney and appointed process server shall have the same authority as the sheriff or deputy to serve, levy and execute all process under this act, including, but not limited to, writs of execution, orders of attachment, replevin orders, orders for delivery, writs of restitution and writs of assistance.  All persons authorized under this subsection to serve, levy and execute process shall be considered an "officer" as used in K.S.A. 60-706 and 60-2401 and amendments thereto.
(b)  Process servers shall be appointed freely and may be authorized either to serve process in a single case or in cases generally during a fixed period of time.  A process server or an authorized attorney may make the service anywhere in or out of the state and shall be allowed the fees prescribed in K.S.A. 28-110, and amendments thereto, for the sheriff and such other fees and costs as the court shall allow.  The mileage and fees of a appointed process server incurred in the service of process shall upon order of the court be allowed as court costs in the lawsuit.
(c)  The sheriff of the county where the lawsuit is filed shall serve all process unless request is made by the party requesting issuance of process, or the court enters an order, for someone else to serve the process.  The clerk of the court shall deliver, electronically or otherwise, the process and petition or other document to be served.
(d)  The person serving process may serve the process in any of the methods set forth below in this subsection.
(1)  First class mail, certified mail, or registered mail.  Process may be sent to a person by first class mail, certified mail or registered mail, by placing a copy of the process and petition or other document to be served in an envelope addressed to the person to be served in accordance with section 4 of this article, at such person's last known address.  The envelope used for such service shall be addressed to the person in accordance with section 4 of this article, shall contain adequate postage for the type of mail used, and shall contain such additional endorsements or receipts as is required for the type of mail used.  Such envelope shall be sealed and placed in the United States mail.  Service by first class mail shall be complete when the envelope is placed in the mail unless returned undelivered.  Service by certified mail or registered mail shall be complete upon delivery of the envelope by the post office.  If the certified mail or registered mail envelope is returned with an endorsement showing refusal of delivery, the person serving the same shall send a copy of the process and petition or other document to be served to the defendant by first-class mail.  Service shall be considered obtained upon the mailing by first-class mail unless returned undelivered.  Failure to claim certified mail or registered mail service is not refusal of service within the meaning of this subsection.
(2)  Personal and residence service.  Personal service shall be made by delivering or offering to deliver a copy of the process and accompanying documents to the person to be served. Residence service shall be made by leaving a copy of the process and petition, or other document to be served, at the dwelling house or usual place of abode of the person to be served with some person of suitable age and discretion residing therein. If service cannot be made upon an individual, other than a minor or a disabled person, by personal or residence service, service may be made by leaving a copy of the process and petition, or other document to be served, at the dwelling house or usual place of abode of the person to be served and mailing a notice to the individual by first-class mail that such copy has been left at such house or place of abode.
(3)  Telefacsimile communication.  Process may be sent to a person by telefacsimile communication.  Service is complete upon receipt of a confirmation generated by the transmitting machine.
(4)  Internet electronic mail.  Process may be sent to a person by Internet electronic mail as provided in the rules to be adopted hereunder by the supreme court.
(5)  Publication.  Service of process by publication may be made pursuant to the provisions of K.S.A. 60-307, and amendments thereto, which are not inconsistent or in conflict with this act. 
(e)  When the person to be served, or an agent authorized by the person to accept service of process, refuses to accept or receive copies of the process, the offer of the process server to deliver copies thereof, and the refusal, shall be a sufficient service of the process. 
(f)  An acknowledgment of service on the summons is equivalent to service.  The voluntary appearance by a defendant is equivalent to service as of the date of appearance.

Comment

Service of process and all other papers required to be served on a party may be served by first class mail, certified mail, registered mail, telefacsimile communication, Internet electronic mail, as well as delivery by the Sheriff or a process server.
Experience in Shawnee County has shown that service by first class mail is highly effective in notifying defendants of the pendency of the lawsuit.  The subcommittee also believes that service by electronic mail and fax is reliable and is appropriate in certain circumstances.  These methods of service will drastically cut down on the expense and personnel needed to serve process.

To allay fears that service of process by first class mail, electronic mail, and fax may not be constitutional, the article on judgments does not allow the entry of a default judgment when service is one of these three methods.

4.  Service of process; time limits; on whom service made. 
(a) Service shall be made promptly and, in any event, in time to make a timely return of service as required by section 5 of this article.
(b) As used in this section, "serving" means making service by any of the methods described in section 3 of this article, unless a specific method of making service is prescribed in this section.  Except for service by publication, service of process shall be made as follows: 
(1)  Service upon an individual other than a minor or disabled person shall be made by serving the individual or by serving an agent authorized by appointment or by law to receive service of process, but if the agent is one designated by statute to receive service, such further notice as the statute requires shall be given.  Service by certified mail or ordinary mail shall be addressed to an individual at the individual's dwelling house or usual place of abode and to an authorized agent at the agent's usual or designated address.
(2)  Service upon a minor, disabled person, as defined by K.S.A. 59-3002, and amendments thereto, foreign or domestic corporations, partnerships, insurance companies or associations shall be made in accordance with the applicable provisions of K.S.A. 60-304 and amendments thereto. 
(3)  Service upon a governmental entity shall be made in accordance with the applicable provisions of K.S.A. 60-304 and amendments thereto. 
(c)  If the defendant is a nonresident who is employed in this state, or if the place of residence of the defendant is unknown, the plaintiff may direct that the service of summons or other process shall be made by directing an officer, partner, managing or general agent, or the person having charge of the office or place of employment at which the defendant is employed, to make the defendant available for the purpose of permitting the summons or other process to be served on the defendant at the defendant's place of employment.

Comment

This is identical to existing law (K.S.A. 61-1805) except under subsection (c) the plaintiff does not have to first file an affidavit as is required under existing law.

5.  Proof of service.  (a) The person serving process shall file a return showing proof of service as follows: 
(1) Mail service.  The return shall show the nature of the process, the date on which the process was mailed, the name and address on the envelope containing the process, the type of mail service, and the return receipt, if any.
(2) Personal and residence service.  The return shall show the time, place and manner of service of such process.
(3) Telefacsimile communication.  The return shall show the nature of the process, the time and date on which the process was transmitted by telefacsimile, the telephone number of the transmitting machine, and the telephone number of the receiving machine.
(4) Internet electronic mail.   The return shall show the nature of the process, the time and date on which the process was transmitted by Internet electronic mail, the Internet electronic mail address of the transmitting person, and the Internet electronic mail address of the receiving person.
(5) Publication.  The return shall show the dates upon, and the newspaper in which the notice of publication was published. When mailing of copies of the publication notice is required in accordance with subsection (e) of K.S.A. 60-307, and amendments thereto, the proof of such mailing shall include the person to whom such notice was mailed. and any return receipt.
(b) Time for return.  The person receiving a summons or other process in forcible detainer cases shall file a return of service no later than three days before the date stated in the summons for the defendant to appear.  In all other cases, return of service shall be filed no later than five days before the date stated in the summons for the defendant to appear.  If the process cannot be served as directed it shall be returned to the court forthwith with a statement of the reason for the failure to serve the same.
(c) Amendment of return.  At any time in the judge's discretion and upon such terms as the judge deems just, the judge may allow any process, return or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued. 

Comment

This is the same as K.S.A. 61-1807 except new sections are added for service by  electronic mail and fax.

6.  Service of process outside the state.
(a) Proof and effect.  (1) Service of process may be made upon any party outside the state.  If upon a person domiciled in this state or upon a person who has submitted to the jurisdiction of the courts of this state, it shall have the force and effect of service of process within this state; otherwise it shall have the force and effect of service by publication.
(2) The service of process shall be made in the same manner as service within this state, by any officer authorized to make service of process in this state or in the state where the defendant is served.  No order of a court is required.  An affidavit, or any other competent proofs, of the server shall be filed stating the time, manner and place of service.  The court may consider the affidavit, or any other competent proofs, in determining whether service has been properly made.
(3) The time stated in the summons requiring the defendant to appear in response to the petition shall be determined by the court.  Such time shall be not less than 11 nor more than 50 days after the date the summons is issued, except as provided in K.S.A. 60-308(a)(3). 
(b) Submitting to jurisdiction -- process.  The provisions of K.S.A. 60-308(b), as amended, shall be used to determine whether a person has submitted to the jurisdiction of this state.
(c) Service of process upon any person who is subject to the jurisdiction of the courts of this state, as provided in subsection (b), may be made by serving the process upon the defendant outside this state, as provided in subsection (a)(2), with the same force and effect as though process had been served within this state, but only causes of action arising from acts enumerated in subsection (b) may be asserted against a defendant in an action in which jurisdiction over the defendant is based upon this subsection.
(d) Nothing contained in this section limits or affects the right to serve any process in any other manner provided by law. 

Comment

This section sets forth the substance of K.S.A. 60-308 except with the increased time limits for service to 50 days.