§ Rule 5 Service

Rule 5. Service

(a) Service and Filing of Pleadings and Other Papers--Service--When Required. Every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, brief and memorandum of law, and similar paper shall be served upon each of the parties affected thereby, but no service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.

(b) Service--How Made. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made by:

(A) handing it to the attorney or the party;

(B) leaving it:

(i) at the attorney's office with the person in charge or, if no one is in charge, in a conspicuous place in the office; or

(ii) if the office is closed or the person to be served has no office, at the person's dwelling or usual place of abode with someone over the age of eighteen years who resides there;

(D) leaving it with the court clerk if the person has no known address;

(E) sending it by electronic means if the person consented in writing in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served;

(F) transmitting the copy by a facsimile machine process although this rule shall not require a facsimile machine to be maintained in the office of an attorney; or

(F) [FN1] delivering it by any other means that the person consented to in writing in which event service is complete when the person making service delivers it to the agency designated to make delivery.

(c) Service--Numerous Defendants. In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.

(d) Filing. All papers after the complaint required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter. If the papers have been filed before service, the filing date shall be noted thereon.

(e) Filing With the Court.

(1) Defined. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk, except that the judge may accept the papers for filing, in which event the judge shall note thereon the filing date, hour and minute and forthwith transmit them to the office of the clerk. The judge or clerk shall indorse upon every pleading and other paper the hour and minute of its filing.

(2) Filing by Facsimile. Any pleading or document except those documents requiring a filing fee or filed as proof of incarceration of a party to the action may be transmitted to the court for filing by a facsimile machine process. The clerk shall file stamp the facsimile copy as an original and the signature, court seal, and notary seal on the copy shall constitute the required signature and be considered as originals under Rule 11(a)(1). After a document is filed by facsimile, there is no need to mail that document to the court. Filings may be made to the court only during the normal working hours of the clerk and only if there is a facsimile machine in the office of the filing clerk of the court. Provided, documents over ten (10) pages in length cannot be filed by facsimile machine process.

(3) Other Use of Facsimile Copies. Any facsimile machine process copy that is not transmitted directly to the court may be filed with the court. The clerk shall file stamp the facsimile copy as an original and the signature on the copy shall constitute the required signature under Rule 11(a)(1). There shall be no limit as to the number of pages of a facsimile copy which was not transmitted directly to the court by the facsimile machine process.

(4) Additional Filings by County. Each county, on an individual basis, may elect to waive any or all of the restrictions of subsection (2) above to the extent that (a) documents requiring a filing fee may be transmitted to the court for filing by a facsimile machine process provided that the fee is prepaid by credit card in accordance with the county's credit card acceptance policy; (b) filings may be made at any time, provided that filings received outside normal working hours or on any non-judicial day will be file stamped at 9:00 a.m. on the next judicial day; (c) documents of any length may be faxed.

(f) Proof of Service. Proof of service shall be made by a certificate of the attorney or the party making service. The certificate of service shall be attached to the copy of the document filed with the court, or if the document is not filed with the court, the certificate shall be filed within a reasonable time after service of the document. The certificate of service shall state the date and manner of service and the name and address of the person served. Failure to make proof of service does not affect the validity of the service.

(g) Service on Attorney-Legislator Suspended During Sessions--Emergency Provisions. During such time as any attorney shall be serving as a legislator or legislative attache while the legislature is in general or special session, the attorney shall not be required to attend in court at any trial or other proceeding, and in any pending matter in which the attorney appears as attorney of record, the time within which the attorney would normally be required to file any pleading or other paper shall be extended for a period of ten days following adjournment of such session of the legislature, provided, that such extension of time is not intended to, and shall not, toll or otherwise extend the running of any limitation period provided by statute and provided further, that upon motion by an aggrieved party or attorney, supported by appropriate affidavit, that an emergency exists or said party would be unduly prejudiced or irreparable damage would accrue, the court in which said action is pending may order, ex parte, such attorney to make appropriate arrangements to appear or for another member of the Idaho state bar to represent said attorney's clients in such pending matter, which said order shall be served upon the attorney by special delivery mail addressed to the attorney at the legislature.

[FN1] So in original.

The rule headings for Idaho Rules of Civil Procedure have been editorially supplied.