SCRCP 5

(a)Service: When Required. Unless otherwise ordered by the court because of numerous defendants

or other reasons, all (1) written orders; (2) pleadings subsequent to the original summons and

complaint, which includes answers, counterclaims, cross claims, replies and amended complaints; (3)

written motions, other than ones which may be heard ex parte; (4) written notices; (5) discovery

requests and responses; (6) appearances; (7) demands; (8) offers of judgment; (9) designations of

record or case; (10) grounds or exceptions on appeal; and (11) other similar papers shall be served

upon each of the parties of record. 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 serving of summons in Rule 4, and notice of any trial or hearing on

unliquidated damages shall also be given to parties in default.

Note:

This Rule 5(a) is substantially the same as Federal Rule, and restates Code §§ 15-9-910

and 15-9-970 with no change in practice.

Note to 2005 Amendment:

This amendment to subsection (a) makes explicit that all major documents and

papers, including, but not limited to, pleadings and amended pleadings, discovery

requests and responses, motions and similar papers are to be served on every party of

record. The amendment also adds the word “grounds” in subsection (a)(10).

(b)(1) 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 himself is ordered by the court. Service upon the attorney or upon a party shall be

made by delivering a copy to him or by mailing it to him at his last known address or, if no address is

known, by leaving it with the clerk of court. Delivery of a copy within this rule means: handing it to the

attorney or to the party; or leaving it at his office with his clerk or other person in charge thereof; or, if

there be 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 a copy at his dwelling place or usual place of abode with

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

mailing of all pleadings and papers subsequent to service of the original summons and complaint.

(b)(2) Service on Sunday. Civil process may be served on Sundays, provided that no person may be

served going to or from or attending a regularly or specially scheduled church or religious service on

Sunday.

Note:

This Rule 5(b)(1) is the same as Federal Rule 5(b) and substantially restates Code §§

15-9-920, 15-9-930, 15-9-980 and 15-9-990; with no resulting change in State

practice. Rule 5(b)(2) is the same as Code § 15-9-1010, except permitting subpoenas

to be served on Sunday.

Note to 2001 Amendment:

Rule 5(b)(2) is rewritten to reflect the enactment of S.C. Code Ann. § 15-9-17, 2000 S.C.

Acts No. 360, which allows for the service of process on Sundays with the stated

exceptions.

(b)(3) Service of Proposed Orders and Other Papers. Any party providing a proposed order,

proposed findings of fact or conclusions of law, or proposed judgment or other paper to the court for

its consideration in any pending matter shall serve the same on all counsel of record at the same time

and by the same means.

Note to 1994 Amendment:

Rule 5(b)(3) clarifies the intent of Rule 5(a) and requires that proposed orders, findings of fact and

conclusions of law and other materials provided to the court are to be served on all counsel of record.

The material is to be provided to all other counsel at the same time and by the same means as they

are provided to the court. Thus opposing counsel will have the opportunity to review and comment on

the proposed order before it is signed. The rule does not require the court to delay entering any

proposed order.

(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 pleadings 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.

Note:

This Rule 5(c) is the same as the Federal Rule. It has no parallel in State practice, but is

a needed addition.

(d) Filing. All papers required to be served upon a party except as provided in Rule 26(g)(1), shall be

filed with the court within five (5) days after service thereof. The summons and complaint shall be filed

before service. Proof of service shall be filed within ten (10) days after service of the summons and

complaint. Upon failure to serve the summons and complaint, the action may be dismissed by the

court on the court's own initiative or upon application of any party. Upon failure of a party to file other

pleadings, motions, or papers, the court may permit filing or proceed as though the same had not

been served.

Note:

This Rule 5(d) encompasses present Circuit Rule 68 and former Rule 75, as well as

Code § 15-9-1000. It is a more concise statement, and provides more specific

sanctions in the court's discretion.

Note to 1993 Amendment:

Rule 5(d) was amended to add language permitting the court to dismiss an action on

its own initiative if it has been filed but not served upon the defendant. The prior rule

required a motion by a party.

(e) Filing With the Court 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 of the court, except that the judge may

permit the papers to be filed with him, in which event he shall note thereon the filing date and

forthwith transmit them to the office of the clerk. Upon any trial or hearing, the clerk shall furnish the

original record in the action to the judge, who shall return same to the clerk immediately upon

completion of such trial or hearing. Copies of the record may be furnished instead of the original by

permission of the judge. Upon change of venue the original record shall be transferred to the clerk of

court to which the action is transferred.

Note:

This Rule 5(e) is the same as the Federal Rule. It restates and clarifies present Circuit

Rules 32 and 67.

Last amended by order dated April 27, 2005