Rule 5. Service and filing of pleadings and other Papers

Alabama Rules of Civil Procedure

II. Commencement of action; service of process, pleadings, motions,

and orders.

Rule 5.

Service and filing of pleadings and other papers.

(a)

Service: When required. Except as otherwise provided in these rules,

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 paper relating to discovery required to be served upon a party

unless the court otherwise orders, 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, and similar paper shall be served upon

each of the parties. 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.

In an action begun by seizure of property, in which no person need be or is

named as defendant, any service required to be made prior to the filing of an

answer, claim, or appearance shall be made upon the person having custody or

possession of the property at the time of its seizure.

(b)

Same: 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 delivering a copy to

the attorney or the party or by mailing it to the attorney or the party at the attorney's

or party's last known address, or, if no address is known, by leaving it with the clerk

of the court

presented 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 delivering a copy to

the attorney or the party or by mailing it to the attorney or the party at the attorney's

or party's last known address, or, if no address is known, by leaving it with the clerk

of the court. Delivery of a copy within this rule means: handing it to the attorney or

party; or leaving it at the attorney's or party's office with a clerk or other person in

charge thereof; or, if there is no one in charge, leaving it in a conspicuous place

therein; or, if the office is closed or the person to be served has no office, leaving

it at the person's dwelling house or usual place of abode with some person of

suitable age and discretion then residing therein. Service by mail is complete upon

mailing.

If the attorney for the party to be served or the party to be served is a

registered user of the electronic-filing system as provided for by order or

rules of the Supreme Court of Alabama, service may be made by electronic

transmittal in accordance therewith. Service by electronic means in compliance

with those orders and rules shall be complete on transmission of the electronic

document. (c) Same: 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.

ross-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; certificate of service. All papers after the complaint required to be

served upon a party, together with a certificate of service, shall be filed with the

court either before service or within a reasonable time thereafter, except that

discovery material shall not be filed other than upon order of the court, for use at

trial, or in connection with motions. For purposes of this rule, "discovery material"

shall include depositions upon oral examination or written questions, notices of

deposition, interrogatories, requests for production of documents, requests for

admission, and answers, responses, and objections thereto. The person

responsible for service of the discovery material shall retain the original and

become custodian.

A certificate of service shall list the names and addresses, including the

email addresses of registered electronic-filing-system users, if known, of all

attorneys or pro se parties upon whom the paper has been served.

All discovery material may be served electronically using the court's

electronic filing system. Such service will generate an entry in the case-action

summary documenting the fact of service, the date of service, and the nature of

the document or documents served, but the discovery will not be filed, entered, or

retained in electronic form in the court file.

During the pendency of any case, the custodian of any discovery material shall

provide to counsel for all other parties reasonable access to the material and an

opportunity to duplicate the material at the expense of the copying party.

ervice, and the nature of

the document or documents served, but the discovery will not be filed, entered, or

retained in electronic form in the court file.

During the pendency of any case, the custodian of any discovery material shall

provide to counsel for all other parties reasonable access to the material and an

opportunity to duplicate the material at the expense of the copying party.

(e) Filing with the court defined. The filing of papers with the court as

required by these rules shall be made by filing them with the clerk of the court,

except that the judge may permit the papers to be filed with the judge, in which

event, the judge shall note thereon the filing date and forthwith transmit them to

the office of the clerk. A pleading, motion, order, or other document filed by

electronic means in accordance with an order or rules of the Supreme Court of

Alabama constitutes filing with the court for the purpose of applying these rules.

The clerk shall not refuse to accept for filing any document presented for that

purpose solely because it is not presented in proper form as required by these

rules.

(dc) District court rule. Rule 5 applies in the district court.

[Amended eff. 2-1-88; Amended eff. 8-1-92; Amended eff. 10-1-95; Amended eff.

10-24-2008; Amended eff. 4-16-2010.]

Committee Comments on 1973 Adoption

Except for a sentence added to paragraph (d), this rule is identical with

Federal Rule 5. It is in substantial accord with the general practice of Alabama

courts. See Tit. 7, §§ 349(1)-349(5), Code of Ala

5 applies in the district court.

[Amended eff. 2-1-88; Amended eff. 8-1-92; Amended eff. 10-1-95; Amended eff.

10-24-2008; Amended eff. 4-16-2010.]

Committee Comments on 1973 Adoption

Except for a sentence added to paragraph (d), this rule is identical with

Federal Rule 5. It is in substantial accord with the general practice of Alabama

courts. See Tit. 7, §§ 349(1)-349(5), Code of Ala.

Rule 5(a) thus requires all papers to be served on all parties to the action

with the following exceptions: (1) orders and judgments not required by their terms

to be served; (2) ex parte motions; (3) any pleadings, motions, notices, or other

papers when the opposing party is in default for failure to appear, and no new or

additional claim for relief is asserted; (4) certain pleadings when the court, pursuant

to Rule 5(c), orders otherwise because of numerous defendants; and (5) such

notices as are required to be filed rather than served, such as the transcript of a

deposition, Rule 30(f), a notice of dismissal, Rule 41(a)(1).

Rule 5(b) has no application to service of the summons. That subject is

completely covered by Rule 4.

Proof of service of a summons is required by Rule 4. There is no similar

provision in the Federal Rules of Civil Procedure. Tit. 7, §§ 349(1)-349(5), Code of

Ala., very closely follow Rule 5 of the Federal Rules of Civil Procedure but do

contain additional treatment of proof of service at Tit. 7, § 349(4), Code of Ala., last

sentence. This Rule has carried that language forward as the second sentence of

Rule 5(d). The requirement of proof of service is not imposed upon written

requested instructions which are required to be served by Rule 51. This

dispensation is necessitated by practical considerations. Better practice, however,

would call for counsel making a statement on the record in open court to the effect

that he is now serving requested charges numbered 1-5 or 10, as the case may

be, on opposing counsel

rement of proof of service is not imposed upon written

requested instructions which are required to be served by Rule 51. This

dispensation is necessitated by practical considerations. Better practice, however,

would call for counsel making a statement on the record in open court to the effect

that he is now serving requested charges numbered 1-5 or 10, as the case may

be, on opposing counsel. Note that these rules generally refer to service rather

than filing. For example, see Rule 12(a) wherein a defendant is required to “serve”

his answer within thirty (30) days. The requirement of service used in these rules

must be read in conjunction with Rule 5(d), first sentence, wherein the Rule

provides that all papers that are required to be served, shall be filed either before

service or within a reasonable time thereafter.

The term “clerk” is used throughout these rules as referring both to the clerk

of court and to the register in chancery. Rule 81(d). For administrative purposes

only, suits are to be filed with the register or with the clerk as would have been

proper prior to adoption of these rules. If the papers are filed in the wrong office,

or, for other reasons, provision is made for their transfer. Rule 79(f).

Committee Comments to February 1, 1988, Amendment to Rule

5(d)

This amendment to subdivision (d) is intended to permit courts in

appropriate circumstances to dispense with the requirement for filing discovery

material. Many courts are presently encountering severe constraints in storing

litigation papers. These storage constraints and the expenses incurred by the

courts in connection with the retention of discovery materials may make it

appropriate for certain courts to utilize the option permitted under the amended

subdivision and eliminate the necessity for filing all discovery material. If this option

is exercised, the court should be careful to provide certain safeguards necessary

to assure access to these discovery materials

enses incurred by the

courts in connection with the retention of discovery materials may make it

appropriate for certain courts to utilize the option permitted under the amended

subdivision and eliminate the necessity for filing all discovery material. If this option

is exercised, the court should be careful to provide certain safeguards necessary

to assure access to these discovery materials. Local Rule 17(A-E) of the United

States District Court for the Southern District of Alabama is an example of such

safeguards.

Court Comments to February 1, 1988, Amendment to Rule 5(d)

If this option is exercised, the court’s order must, at a minimum, contain the

safeguards set out in Local Rule 17 of the United States District Court for the

Southern District of Alabama. The court’s order—in addition to other provisions—

must substantially track the language of Rule 17(A-E), adapting that language for

application in the state court. Rule 17(A-E), as it existed at the time of the adoption

of this amendment to Rule 5(d), provided, as follows:

“RULE 17. CIVIL DISCOVERY MATERIALS AND EXHIBITS

“Unless the Court directs otherwise, in all civil actions other than

inmate complaints challenging the conditions of confinement:

“A. Interrogatories, requests for production, requests for admissions

and responses thereto, and notices of depositions shall be served in

accordance with Rule 5(b), FED.R.CIV.P., but shall not be filed with the

Clerk except upon order of the Court or for use at trial or in connection with

motions. The party responsible for service of the discovery material shall

retain the original and become custodian.

tories, requests for production, requests for admissions

and responses thereto, and notices of depositions shall be served in

accordance with Rule 5(b), FED.R.CIV.P., but shall not be filed with the

Clerk except upon order of the Court or for use at trial or in connection with

motions. The party responsible for service of the discovery material shall

retain the original and become custodian.

“B. No depositions shall be filed with the Clerk unless the Court

directs otherwise, or unless in support of or in opposition to a motion.

Counsel who notices a deposition shall be the custodian of the deposition

and shall maintain the original for filing if the Court so directs.

“C. If discovery materials are germane to any motion or response,

only the relevant material shall be filed with the motion or response.

“D. Whenever any discovery material (request, response, notice) is

served, counsel shall contemporaneously deliver to the Clerk a notice

identifying the date of service and the nature of the material served or the

first and last page of the document served, including the certificate of

service. These notices shall be maintained by the clerk with the civil action

file but will not be docketed.

“E. During the pendency of any case the custodian of any discovery

material shall provide to counsel for all other parties reasonable access to

the material and an opportunity to duplicate the material at the expense of

the copying party, and any other person may, with leave of Court, obtain a

copy of any discovery material from its custodian upon payment of the

expense of the copy.”

Committee Comments to August 1, 1992, Amendment to Rule

5(d)

The February 1, 1988, amendment to Rule 5(d) gave courts the option to

order that discovery materials no longer be filed with the clerk of the court. This

dispensation from the filing requirement was felt necessary to deal with the severe

problems many courts faced in storing litigation papers

ment of the

expense of the copy.”

Committee Comments to August 1, 1992, Amendment to Rule

5(d)

The February 1, 1988, amendment to Rule 5(d) gave courts the option to

order that discovery materials no longer be filed with the clerk of the court. This

dispensation from the filing requirement was felt necessary to deal with the severe

problems many courts faced in storing litigation papers. The comments to the 1988

amendment suggested that any court following this option should be careful to

provide safeguards necessary to assure access to these discovery materials. Local

Rule 17 of the United States District Court for the Southern District of Alabama was

suggested as an example of such safeguards. Following the 1988 amendment,

many courts have adopted the option permitted by this rule and have dispensed

with the necessity for filing all discovery materials. Unfortunately, these courts

adopted a variety of local rules to guide litigants with respect to nonfiled discovery

materials. The August 1, 1992, amendment to Rule 5(d) is intended to provide a

uniform procedure for the nonfiling of discovery materials in those circuits that

choose to dispense with the filing of discovery materials. This amendment

generally follows the guidelines incorporated in Local Rule 17 of the United States

District Court for the Southern District of Alabama. In view of this amendment, there

is no longer any need for any local rule on this subject. The Committee notes that

by order effective April 14, 1992, the Supreme Court amended Rule 83 to provide

that there will be no local rules.

Important Notice From the Clerk of the Supreme Court of

Alabama

The Supreme Court issued an opinion in Ex parte Tuck, 622 So.2d 929

(Ala.1993), affirming an opinion by the Alabama Court of Civil Appeals in McKay v.

Tuck, 622 So.2d 926 (Ala.Civ.App.1992). These opinions addressed the propriety

of facsimile filings under the Alabama Rules of Civil Procedure

at there will be no local rules.

Important Notice From the Clerk of the Supreme Court of

Alabama

The Supreme Court issued an opinion in Ex parte Tuck, 622 So.2d 929

(Ala.1993), affirming an opinion by the Alabama Court of Civil Appeals in McKay v.

Tuck, 622 So.2d 926 (Ala.Civ.App.1992). These opinions addressed the propriety

of facsimile filings under the Alabama Rules of Civil Procedure. The Alabama

Supreme Court held that “other filings attempted by facsimile transmissions as

filings in reliance on the opinion of the Court of Civil Appeals will be taken as proper

on the same basis through the period ending July 31, 1993. After that date we will

not recognize facsimile transmissions as filings, within the meaning of our rules of

court or the statutes of this state, except as statutes or rules may authorize ‘filing’

by facsimile transmission.” Ex parte Tuck, 622 So.2d at 930. After due

consideration the Supreme Court Standing Committee on the Rules of Civil

Procedure has recommended to the Supreme Court that the Rules of Civil

Procedure not be amended to provide for filing by facsimile transmission after July

31, 1993.

Committee Comments to October 1, 1995, Amendment to Rule

5

The amendments to subdivisions (b) and (d) are technical; no substantive

change is intended. The amendment to subdivision (e) incorporates most of the

language of F.R.Civ.P. 5(e), but omits the language in the federal rule authorizing

filing by facsimile transmission under rules established by the Judicial Conference

of the United States. See Ex parte Tuck, 622 So.2d 929 (Ala.1993).

Committee Comments Adopted February 13, 2004, to Rule 5

All litigants should be aware that there is a statutory requirement that the

attorney general be served when a statute or ordinance is being challenged on

constitutional grounds. See § 6-6-227, Code of Alabama 1975

on under rules established by the Judicial Conference

of the United States. See Ex parte Tuck, 622 So.2d 929 (Ala.1993).

Committee Comments Adopted February 13, 2004, to Rule 5

All litigants should be aware that there is a statutory requirement that the

attorney general be served when a statute or ordinance is being challenged on

constitutional grounds. See § 6-6-227, Code of Alabama 1975. This requirement is

mandatory, and the failure to serve the attorney general deprives the court of

jurisdiction to resolve any constitutional issues related to the statute or ordinance

being challenged. See Ex parte Jefferson County, 767 So.2d 343, 345 (Ala.2000),

and Bratton v. City of Florence, 688 So.2d 233, 234 (Ala.1996).

Committee Comments to Amendments to Rule 5 Effective

October 24, 2008

The additions to Rule 5(b) and Rule 5(e) recognize that electronic filing is

now an optional means of filing and service in every county in Alabama. Electronic

filing must be accomplished within the electronic-filing system established by order

and rules of the Supreme Court of Alabama, not merely email communication. The

Rule 5(d) addition regarding inclusion of e-mail addresses in certificates of service

is to be read in the context of filings within the electronic-filing system. In that same

section language has been added to provide for electronic filing of discovery and

responses thereto, both of which are excluded from the existing provisions

regarding the filing of paper copies.

Committee Comments to Amendment t Rule 5(d) Effective April

16, 2010

Before this amendment, Rule 5(d) included a model standing order under which

the parties could serve and retain discovery material and not file it. Virtually all

circuits adopted the model standing order. This amendment embraces the current

practice by specifying that discovery material may be served electronically but is

not kept in the court file

ent t Rule 5(d) Effective April

16, 2010

Before this amendment, Rule 5(d) included a model standing order under which

the parties could serve and retain discovery material and not file it. Virtually all

circuits adopted the model standing order. This amendment embraces the current

practice by specifying that discovery material may be served electronically but is

not kept in the court file. In the absence of a protective order, a party retains the

discretion to allow or to deny a nonparty access to discovery material. Whether

discovery material is a matter of public record is an issue for the courts and is

beyond the scope of this amended rule.

Note from the reporter of decisions: The order adopting the Committee

Comments to Rules 5, 15, 21, 23, 24, and 42, Alabama Rules of Civil Procedure,

effective February 13, 2004, is published in that volume of Alabama Reporter that

contains Alabama cases from 865 So.2d.

Note from the reporter of decisions: The order amending effective

October 24, 2008, Rule 3, Rule 4, Rule 5, Rule 6, Rule 11, Rule 55, Rule 58, Rule

59.1, Rule 77, and Rule 79, and adopting effective October 24, 2008, the

Committee Comments to Amendment to Rule 3(b) Effective October 24, 2008;

Committee Comments to Amendments to Rule 4 Effective October 24, 2008;

Committee Comments to Amendments to Rule 5 Effective October 24, 2008;

Committee Comments to Amendments to Rule 6 Effective October 24, 2008;

Committee Comments to Amendment to Rule 11 Effective October 24, 2008;

Committee Comments to Amendment to Rule 55(a) Effective October 24, 2008;

Committee Comments to Amendments to Rule 58 Effective October 24, 2008;

Committee Comments to Amendment to Rule 59.1 Effective October 24, 2008;

Committee Comments to Amendments to Rule 77(d) Effective October 24, 2008;

6 Effective October 24, 2008;

Committee Comments to Amendment to Rule 11 Effective October 24, 2008;

Committee Comments to Amendment to Rule 55(a) Effective October 24, 2008;

Committee Comments to Amendments to Rule 58 Effective October 24, 2008;

Committee Comments to Amendment to Rule 59.1 Effective October 24, 2008;

Committee Comments to Amendments to Rule 77(d) Effective October 24, 2008;

and the Committee Comments to Addition of Rule 79(e) Effective October 24,

2008, is published in that volume of Alabama Reporter that contains Alabama

cases from 994 So. 2d.

Note from the reporter of decisions: The order amending Rule 5(d),

Alabama Rules of Civil Procedure, effective April 16, 2010, is published in that

volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.