HAWAII RULES AND CIVIL PROCEDURE

Disclaimer: Due to the rapidly changing nature of the law, there will be times when the material on this site will not be current. It is provided for general information purposes only and is not intended as legal advice. It should not be considered comprehensive or exhaustive and is not a substitute for advice from your attorney. We make no express or implied warranty as to the material’s accuracy, reliability, completeness, timeliness or appropriateness for a particular purpose, including applicability to your jurisdiction or circumstances. We assume no liability whatsoever for any direct, indirect or consequential damages resulting from your reliance on this material; you do so at your own risk.  Seek the advice of an attorney. Comments, corrections or suggestions should be directed to info@undisputedlegal.com.  The information listed below may have been amended. For updated process serving legislation, please visit the Hawaii Judiciary and Courts web site.

Hawaii Process Server Requirements

Service of all process shall be made:

  1. Anywhere in the State by the sheriff or the sheriff’s deputy, by some other person specially appointed by the court for that purpose, or by any person who is not a party and is not less than 18 years of age; or
  2. In any county by the chief of police or the chief’s duly authorized subordinate.

Hawaii Service of Process Laws to Note

Summons must contain a prohibition against personal delivery of the summons between 10:00 p.m. and 6:00 a.m. on premises not open to the public, unless a judge of the district or circuit courts permits delivery during those hours.

Rule 4. Process.

(a) Summons – Issuance. Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it to the plaintiff or the plaintiff’s attorney, who shall cause the summons and a copy of the complaint to be served in accordance with this rule. Upon request of the plaintiff separate or additional summonses shall issue against any defendants.

(b) Same: Form. – The summons shall:

(1) be signed by the clerk under the seal of the court,

(2) contain the name of the court, the names of the parties, and the date when issued,

(3) be directed to the defendant,

(4) state the name and address of the plaintiff’s attorney, if any, otherwise the plaintiff’s address,

(5) state the time within which these rules require the defendant to appear and defend, and shall notify the defendant that in case of defendant’s failure to do so judgment by default will be rendered against the defendant for the relief demanded in the complaint,

(6) contain a prohibition against personal delivery of the summons between 10:00 p.m. and 6:00 a.m. on premises not open to the public, unless a judge of the district or circuit courts permits, in writing on the summons, personal delivery during those hours, and

(7) contain a warning to the person summoned that failure to obey the summons may result in an entry of default and default judgment.

When, under Rule 4(e), service is made pursuant to a statute or rule of court, the summons or notice, or order in lieu of summons, shall correspond as nearly as may be to that required by the statute or rule.

(c) Same: By Whom Served. Service of all process shall be made: (1) anywhere in the State by the sheriff or the sheriff’s deputy, by some other person specially appointed by the court for that purpose, or by any person who is not a party and is not less than 18 years of age; or (2) in any county by the chief of police or the chief’s duly authorized subordinate. A subpoena, however, may be served as provided in Rule 45.

(d) Same: Personal Service. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:

(1) Upon an individual other than an infant or an incompetent person, (A) by delivering a copy of the summons and of the complaint to [him] the individual personally or in case [he] the individual cannot be found by leaving copies thereof at [his] the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or (B) by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.

(2) Upon an infant, by delivering a copy of the summons and of the complaint personally (A) to the guardian of [his] the individual’s property or if there is no guardian of [his] the individual’s property or service cannot be made upon such guardian then as provided by order of the court and (B) if the infant be of the age of 16 years or over, also to the infant; and upon an incompetent person, by delivering a copy of the summons and of the complaint personally (A) to the guardian of [his] the individual’s property, or if [he] the individual is living in an institution then to the director or chief executive officer of the institution, or if service cannot be made upon either of them, then as provided by order of the court, and (B) unless the court otherwise orders, also to the incompetent person.

(3) Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.

(4) Upon the State by delivering a copy of the summons and of the complaint to the attorney general of the State or to the assistant attorney general or to any deputy attorney general who has been appointed by the attorney general.

(5) Upon an officer or agency of the State by serving the State and by delivering a copy of the summons and of the complaint to such officer or agency. If the agency is a corporation, the copies shall be delivered as provided in paragraph (3) of this subdivision of this rule.

(6) Upon a county, as provided by statute or the county charter, or by delivering a copy of the summons and of the complaint to the corporation counsel or county attorney or any of his or her deputies.

(7) Upon an officer or agency of a county, by serving the county and by delivering a copy of the summons and of the complaint to such officer or agency. If the agency is a corporation the copies shall be delivered as provided in paragraph (3) of this subdivision of this rule.

(8) Upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule, it is also sufficient if the summons and complaint are served in the manner prescribed by any statute.

(e) Same: Other Service. Whenever a statute or an order of court provides for service upon a party not an inhabitant of or found within the State, of a summons, or of a notice, or of an order in lieu of summons, service shall be made under the circumstances and in the manner prescribed by the statute or order. Whenever a statute or an order of court requires or permits service by publication of a summons, or of a notice, or of an order in lieu of summons, any publication pursuant thereto shall be made under the circumstances and in the manner prescribed by the statute or order.

(f) Territorial Limits of Effective Service. All process may be served anywhere within the State and, when a statute or order so provides, beyond the limits of the State.

(g) Return. The person serving the process shall make proof of service thereof to the court promptly and in any event within the time during which the person served must respond to process. When service is made by any person specially appointed by the court, [he] that person shall make affidavit of such service.

(h) Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any process 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.

Rule 5. Service and Filing of Pleadings and Other Papers.

(a) 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 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, brief or memorandum of law, offer of judgment, bill of costs, designation of record on appeal, 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) 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.

(1) Service upon the attorney or upon a party shall be made (a) by delivering a copy to [him] the attorney or party; or (b) by mailing it to [him at his] the attorney or party at the attorney’s or party’s last known address; or (c) if no address is known, by leaving it with the clerk of the court; or (d) if service is to be upon the attorney, by facsimile transmission to the attorney’s business facsimile receiver.

(2) Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at [his] the attorney’s or party’s office with [his] 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 [his] the person’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Facsimile transmission means transmission and receipt of the entire document without error with a cover sheet which states the attorney(s) to whom it is directed, the case name and court case number, and the title and number of pages of the document.

(3) Service by mail is complete upon mailing. Service by facsimile transmission is complete upon receipt of the entire document by the intended recipient and between the hours of 8:00 a.m. and 5:00 p.m. on a court day. Service by facsimile transmission that occurs after 5:00 p.m. shall be deemed to have occurred on the next court day.

(4) Service by facsimile transmission shall be confirmed by a certificate of service which declares that service was accomplished by facsimile transmission to a specific phone number, on a specific date.

(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.

(d) Filing. Except as provided in subdivision (f) of this rule, 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 [after service] [thereafter]. All documents filed with the court shall be previously or contemporaneously served on all parties to the action, except as permitted in subdivision (a) above.

(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 or her, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. Any other rule to the contrary notwithstanding, the clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules. Proposed findings, conclusions, orders, or judgments submitted for signature shall be dated and stamped “lodged” or “received” by the clerk and transmitted to the court for consideration.

(f) Nonfiling of Discovery Materials. A deposition, interrogatory, request for discovery production or inspection, request for documents, request for admissions, and answers and responses thereto shall not be filed automatically with the court; provided that on a motion or at trial any such document shall be filed when offered in evidence or submitted as an exhibit; and further provided that a deposition taken outside this state or a deposition taken by an officer who is discontinuing the occupation of taking depositions shall be promptly filed pursuant to Rule 30(f)(1). In addition the court may at any time, on ex parte request or sua sponte, order the filing of any discovery material.

Rule 45. Subpoena.

(a) For Attendance of Witnesses; Form; Issuance. Every subpoena shall be issued by the clerk of the circuit court of the circuit in which the action is pending under the seal of the court, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified. The clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service.

(b) For Production of Documentary Evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.

(c) Service. A subpoena may be served at any place within the State. A subpoena may be served: (1) anywhere in the State by the sheriff or [his] deputy sheriff or by any other person who is not a party and is not less than 18 years of age; or (2) in any county by the chief of police or [his] a duly authorized subordinate. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to [him] such person the fees for one day’s attendance and the mileage allowed by law. When the subpoena is issued on behalf of the State or a county, or an officer or agency of the State or a county, fees and mileage need not be tendered.

(d) Subpoena for Taking Depositions; Place of Examination.

(1) Proof of service of a notice to take a deposition as provided in Rules 30(b) and 31(a) constitutes a sufficient authorization for the issuance by the clerk of the circuit court of the circuit in which the deposition is to be taken of subpoenas for the persons named or described therein. The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain matters within the scope of the examination permitted by Rule 26(b), but in that event the subpoena will be subject to the provisions of Rule 26(c) and subdivision (b) of this Rule 45.

The person to whom the subpoena is directed may, within 10 days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than 10 days after service, serve upon the attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursuant to an order of the court from which the subpoena was issued. The party serving the subpoena may, if objection has been made, move upon notice to the deponent for an order at any time before or during the taking of the deposition.

(2) A resident of the State may be required to attend an examination only in the county wherein [he] said person resides or is employed or transacts [his] business in person, or at such other convenient place as is fixed by an order of court. A nonresident of the State subpoenaed within the State may be required to attend only in the county wherein [he] is served with a subpoena, or at such other convenient place as is fixed by an order of court.

(e) [(Reserved)] Duties in Responding to Subpoena.

(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.

(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.

(f) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon [him] said person may be deemed a contempt of the court from which the subpoena issued.

§634-24 Service outside the State or by registered mail. In any case in which, under section 634-23, provision is made for service of summons as provided by this section, personal service shall be made upon the defendant wherever found or the defendant shall be served by registered or certified mail with request for a return receipt and marked deliver to addressee only, as ordered by the court. A certified copy of the order, the summons and the complaint shall be served, and the service shall be evidenced by an affidavit showing that the required papers were sent by registered or certified mail as aforesaid, and by the receipt signed by the defendant and filed with the affidavit, or in the case of personal service by the return of the serving officer or the affidavit of any other person authorized to serve process in the place where the defendant is found or appointed by the court to make the service.

The affidavit required by this section shall set forth facts based upon the personal knowledge of the affiant concerning the methods, means, and attempts made to satisfy the requirements of this section and any other pertinent facts.

§634-25 Personal service on resident outside the State. Whenever a defendant, being a resident of the State, cannot be served within the State personal service may be made upon the defendant outside the State by any person authorized to serve process in the place in which the defendant may be found or specially appointed by the court to make the service which service shall be evidenced by the return of the serving officer or by affidavit and shall be of the same legal force and validity as if made within the State.

The affidavit required by this section shall set forth facts based upon the personal knowledge of the affiant concerning the methods, means, and attempts made to satisfy the requirements of this section and any other pertinent facts.

§633-28 Small claims, no appeal; appearance by whom. (a) Actions shall be commenced and conducted in the small claims division of the district court as provided by the rules of court. The clerk of the court, at the request of an individual, shall prepare the papers required to be filed in an action in the court, but the clerk’s services in the preparation of these papers shall not be available to a corporation, partnership, or association, or to any individual proprietorship. The mode of service shall be:

(1) As provided by law or rule of court for cases in the district courts; provided that for any small claims action, service may be made by one of the parties to the action by means of personal service to the other parties, on the condition that:

(A) The party being served signs that party’s name to indicate actual receipt of service; or

(B) A competent witness, who is not an employee, family member, or agent of the plaintiff appears at a hearing on the matter or provides a notarized affidavit testifying that personal service on the party sought to be served was accomplished in the witness’ presence;

(2) As to actions arising under paragraphs (1) and (3) of section 633-27(a), by registered mail or by certified mail with return receipt signed by the addressee showing delivery within the circuit; or

(3) As to actions arising under paragraph (2) of section 633-27(a), by registered mail or by certified mail with return receipt signed by the addressee showing delivery at any place within or without the State.

There shall be no appeal from a judgment of the small claims division, but the court, sitting as the small claims division, may alter or set aside any judgment as provided by the rules of court.

(b) Notwithstanding any provision of law requiring the licensing of practitioners, any person may, with the approval of the court, appear on behalf of oneself or another in the small claims division of the district court; provided in cases involving disagreement between landlord and tenant about the security deposit in a residential landlord-tenant relationship, licensed practitioners are prohibited to appear on behalf of another person. The services of an unlicensed person appearing under this subsection shall be without compensation, either by way of direct fee, contingent fee, or otherwise. In the event the services are rendered for compensation this subsection is inapplicable and the rendering of the services constitutes the unlawful practice of law, except as otherwise provided.

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