Significant changes and additions have been introduced in Rule 14 (“Summons”) under the 2019 Proposed Amendments to the 1997 Rules of Civil Procedure (hereinafter, “2019 Amendments”), which takes effect on 1 May 2020. The summary of other Rules may be tracked through the Menu.
Among the significant changes are: (a) power of the court to dismiss the complaint even before directing the issuance of summons; (b) authority of the plaintiff to serve the summons; (c) a new provision on validity of summons; (d) service on spouses; (e) what constitutes “reasonable time” for substituted service, as well as the grounds thereof; (f) additional persons authorized to receive for private juridical entities; (g) deputization of defendant’s counsel to serve summons improperly served; and (h) revisions on service of summons on foreign private juridical entities.
Under the old 1997 Rules, the clerk of court issues the summons without need of directive from the judge and without any specific period to cause the issuance of summons. More importantly, the court cannot order the dismissal of the case at that point.
Radical changes have been introduced in the 2019 Amendments. The court, motu prioprio, may dismiss the complaint if, on its face, it is dismissible based on the following grounds:
It is interesting that this Section does not include other grounds for dismissing a complaint, e.g., there is no verification page, or a defective certification against forum shopping.
If the complaint is not dismissible, the court shall, within 5 calendar days from receipt of the initiatory pleading and proof of payment of the requisite legal fees, direct the clerk of court to issue the corresponding summons to the defendants.
The 2019 Amendments reproduces most of the required contents of summons under the old 1997 Rules. The summons shall be directed to the defendant, signed by the clerk of court under seal, and contain:
A copy of the complaint and order for appointment of guardian ad litem, if any, shall be attached to the original and each copy of the summons.
However, the 2019 Amendments introduces one more required content — when authorized by the court upon ex parte motion, an authorization for the plaintiff to serve summons to the defendant. Under the old 1997 Rules, the plaintiff may accompany the sheriff or the process server, but cannot serve the summons on his/her own.
The summons may be served by the sheriff, his or her deputy, or other proper court officer.
One of the most significant changes introduced under the 2019 Amendments is the authority of the plaintiff to serve summons.
In case of failure of service of summons by the sheriff or his deputy, the court may authorize the plaintiff to serve the summons – together with the sheriff.
In cases where summons is to be served outside the judicial region of the court where the case is pending, the plaintiff shall be authorized to cause the service of summons.
If the plaintiff is a juridical entity, it shall notify the court, in writing, and name its authorized representative therein, attaching a board resolution or secretary’s certificate thereto, as the case may be, stating that such representative is duly authorized to serve the summons on behalf of the plaintiff.
If summons not served
If summons is returned without being served on any or all the defendants, the court shall order the plaintiff to cause the service of summons by other means available under the Rules.
Failure to comply with the order shall cause the dismissal of the initiatory pleading without prejudice.
Misrepresentation of plaintiff
If the plaintiff misrepresents that the defendant was served summons, and it is later proved that no summons was served:
A new section has been introduced under the 2019 Amendments, relating to the validity of summons and issuance of alias summons.
Summons shall remain valid until duly served, unless it is recalled by the court. In case of loss or destruction of summons, the court may, upon motion, issue an alias summons. [Under the old 1997 Rules, alias summons is issued in case it is lost or in case the summons is returned without being served.]
There is failure of service after unsuccessful attempts to personally serve the summons on the defendant in his or her address indicated in the complaint. Substituted service may be resorted to (see below).
Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person and informing the defendant that he or she is being served, or, if he or she refuses to receive and sign for it, by leaving the summons within the view and in the presence of the defendant.
If, for justifiable causes, the defendant cannot be served personally after at least 3 attempts on 2 different dates, service may be effected:
The old 1997 Rules only provides for (a) and (b) and merely provides that substituted service may be resorted to if summons cannot be served “within a reasonable time”. The 2019 Amendments clarifies that “reasonable time” means at least 3 attempts on 2 different dates.
A new, and very interesting, provision has been added in the 2019 Amendments. Where the summons is improperly served and a lawyer makes a special appearance on behalf of the defendant to, among others, question the validity of service of summons, the counsel shall be deputized by the court to serve summons on his or her client.
[Note: This means that in case a motion ad cautelam is filed, seeking the dismissal of the complaint on the ground of improper service of summons, the motion is as good as not filed because the defendant’s can counsel can be deputized to serve the summons. See also: Motion to Dismiss.]
When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was filed. The 2019 Amendments practically reproduces the provisions of the 1997 Rules, except the substitution of “brought” with “filed”.
When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him or her by the officer having the management of such jail or institution who is deemed as a special sheriff for said purpose.
The 2019 Amendments practically reproduces the provisions of the 1997 Rules, but adds that the jail warden shall file a return within 5 calendar days from service of summons to the defendant.
Service may be made through methods which are consistent with established international conventions to which the Philippines is a party. [This is a new provision in the 2019 Amendments.]
When the defendant is a minor, insane or otherwise an incompetent person, service of summons shall be made upon him or her personally and on his or her legal guardian if he or she has one, or if none, upon his or her guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service shall be made on his or her parent or guardian. [The section is practically a reproduction of the old 1997 Rules.]
When spouses are sued jointly, service of summons should be made to each spouse individually. This is a new provision in the 2019 Amendments.]
When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel of the corporation wherever they may be found, or in their absence or unavailability, on their secretaries. [Under the old 1997 Rules, service must be done in the address indicated in the complaint, and cannot be made on secretaries.]
The following new provisions have been introduced in the 2019 Amendments:
When the defendant is a foreign private juridical entity which has transacted or is doing business in the Philippines, as defined by law, service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers, agents, directors or trustees within the Philippines.
The preceding paragraph is practically a reproduction of the 1997 Rules, except: (a) the provision that the foreign entity is doing business in the Philippines as defined by law; and (b) service is also allowed on the directors or trustees, in addition to the entity’s officers or agent in the Philippines.
The 2019 Amendments also adds that if the foreign private juridical entity is not registered in the Philippines, or has no resident agent but has transacted or is doing business in it, as defined by law, such service may, with leave of court, be effected outside of the Philippines through any of the following means:
When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct. [This is a reproduction of the 1997 Rules.]
In any action where the defendant is designated as an unknown owner, or the like, or whenever his or her whereabouts are unknown and cannot be ascertained by diligent inquiry, within 90 calendar days from the commencement of the action, service may, by leave of court, be effected upon him or her by publication in a newspaper of general circulation and in such places and for such time as the court may order. [Except the additional provision on the 90-day period, this paragraph is practically a reproduction of the 1997 Rules.]
The 2019 Amendments adds that any order granting such leave shall specify a reasonable time, which shall not be less than 60 calendar days after notice, within which the defendant must answer.
Service may, by leave of court, be effected out of the Philippines when the defendant does not reside and is not found in the Philippines, and the action
In these instances, the mode of service shall be:
Any order granting such leave shall specify a reasonable time, which shall not be less than 60 calendar days after notice, within which the defendant must answer.
When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, extraterritorial service may, by leave of court, be resorted to. [This is a reproduction of the provisions in the old 1997 Rules.]
Any application to the court under this Rule for leave to effect service in any manner for which leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application. [This is a reproduction of the provisions in the old 1997 Rules.]
The old 1997 Rules simply provides that when the service has been completed, the server shall, 5 days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiffs counsel, and shall return the summons to the clerk who issued it, accompanied by proof of service. This has been significantly expanded under the 2019 Amendments.
Should substituted service have been effected, the return shall state the following:
The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his or her deputy.
The foregoing paragraph is a reproduction of the 1997 Rules. The 2019 Amendments, however, adds that if summons was served by electronic mail, a printout of said e-mail, with a copy of the summons as served, and the affidavit of the person mailing, shall constitute as proof of service.
If the service has been made by publication, service may be proved by the affidavit of the publisher, editor, business or advertising manager, to which affidavit a copy of the publication shall be attached and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his or her last known address.
In the old 1997 Rules, the publisher is not included in the list, and the following are included: printer, his foreman or principal clerk.
The defendant’s voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall be deemed a voluntary appearance. [The amendment turns the 1997 Rules on its head. See Motion to Dismiss.]
Atty. Fred Pamaos is a member of P&L Law (click on photo/name for profile). No legal advice is given in this forum. For other questions, use the "Contact Us" link.
