Commencement of Action

Question 1

What is a summons?

Answer 1

The court clerk will issue a summons when the P files the petition.

The summon will include the following information:

1. that a legal action has been filed against him;
2. the name of the court in which the petition has been filed;
3. the names of the parties;
4. the name and address of the P’s attorney; and
5. the time in which the D is required to appear and defend to avoid suffering a default judgment.

Where the action is rightly brought in any county, a summons will be issued to any other county against any of the Ds, at the P’s request.

Question 2

What are the proper methods of service by personal delivery?

Answer 2

1. A P may have personal service of process made by a sheriff or deputy sheriff, a person licensed to serve process in civil cases, or a person specially appointed for that purpose.
2. A P may serve process by mail through the attorney, court clerk, or a person authorized to serve process personally. The mail must be sent through certified mail, return receipt requested, with delivery restricted to the addressee. Alternatively, commercial courier service, overnight delivery service, or other reliable personal delivery service may be utilized, so long as delivery is evidenced by a written or electronic receipt signed by the addressee showing to whom it was delivered, the date of delivery, the address where it was delivered and the identity of the person or entity effecting delivery.

Question 3

How is service made upon a competent adult?

Answer 3

Personal service upon a competent individual of at least 15 years of age is accomplished by:

a. delivering a copy of the summons and petition personally;
b. leaving copies thereof at the person’s dwelling house or usual place of abode with someone then residing therein who is 15 years of age or older; or
c. delivering a copy of the summons and petition to an agent authorized to receive service of process.

Service of process can also be made by certified mail, return receipt requested.

Question 4

How is service made upon infants?

Answer 4

Personal service upon an infant is accomplished:

1. by serving the summons an petition personally upon either a parent or guardian of the infant; or
2. if a parent or guardian cannot be found, then by serving process upon a person having the care or control of the infant or a person with whom the infant lives.

Infants cannot be served by mail.

Question 5

How is service made upon incompetent persons?

Answer 5

Personal service uon an incompetent person is accomplished by serving the summons and petition personally upon the incompetent person’s guardian.

Incompetent persons cannot be served by mail.

Question 6

How is service made upon incarcerated persons?

Answer 6

Personal service upon an incarcerated person is accomplished by delivering a copy of the summons and petition to the warden or superintendent of the institution where the inmate is housed, whose duty it is to then promptly deliver the summons and petition to the inmate named therein.

Inmates cannot be served by mail.

Question 7

How is service made upon business entity?

Answer 7

Personal service upon a corporation, partnership, or other unincorporated association is accomplished by:

1. delivering a copy of the summons and petition to an officer, managing or general agent, or to any other agent authorized to receive service of process; and
2. if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the D.

Service can be made by certified mail, return receipt requested.

If neither a registered agent or officer can be located, service may be made on the secretary of state.

Question 8

How is service made upon states, counties, school districts, local governments, etc.?

Answer 8

Personal service upon a state, county, school district, public trust, municipal corporation, or other governmental organization is accomplished by delivering a copy of the summons and petition to the officer or individual designated by specific statute; if there is no statute, then upon the chief executive officer or a clerk, secretary, or other official whose duty it is to maintain the official records of the organization.

Question 9

How is service made upon the United States?

Answer 9

Personal service upon the US is accomplished by delivering a copy of the summons and complaint to the US attorney for the district where the action is brought, or to an assistant US attorney or clerical employee whom the US attorney designates in a writing filed with the court clerk.

Service by mail is accomplished by:

1. sending a copy of the summons and petition by registered or certified mail to the civil process clerk at the US attorney’s office;
2. sending a copy of the summons and petition by registered or certified mail to the US attorney general in Washington, D.C.; and
3. if the action challenges an order of a nonparty agency or officer of the US, by sending a copy of the summons and petition by registered or certified mail to the agency or officer.

Question 10

How is service made upon an agency of the US?

Answer 10

To serve a US agency or corporation, or an officer or employee of the US sued in an official capacity, a party must serve the US and also send a copy of the summons and complaint y registered or certified mail to the agency, corporation, officer, or employee.

Question 11

How is service by publication done?

Answer 11

Service made by publication of a notice must be signed by the court clerk and published for at least one day a seek for three consecutive weeks in a newspaper authorized by law to publish legal notices which is published in the county where the petition is filed. If no such newspaper exists, the notice shall be published in a newspaper of general circulation that is published in an adjoining county.

Service may only be accomplished by publication when service cannot be made upon the D by any other method.

Question 12

How is service outside Oklahoma done?

Answer 12

Service made outside the state will be effective so long as an Oklahoma court can exercise PJ over the D based on Oklahoma’s long-arm statute and the constitutional requirements for PJ are met.

Process served outside Oklahoma may be accomplished:

1. by personal delivery;
2. by certified mail, return receipt requested;
3. by publication, when permitted;
4. in any manner prescribed by the law of the place in which the service is made;
5. as directed by a foreign authority in response to a formal request; or
6. as directed by the court.

Question 13

What is the time limit for service?

Answer 13

Service must be made within 180 days after the filing of the petition. An extension may be granted where there is a showing of good cause.

Question 14

When is a civil action commenced?

Answer 14

The filing of a petition with the court.

Question 15

What is a statute of limitations?

Answer 15

It limits the time in which a P may bring suit after a cause of action accrues. Since the statute of limitations is a procedural rule, it may be applied retroactively.

Question 16

When does the statute of limitations begin to run?

Answer 16

Generally, the cause of action arises and the statute of limitations begins to run when the harm occurs to the P, no matter if the P was aware of the injury or not.

However, the discovery rule takes into consideration that, under some circumstances, a P may not know that he was injured for some time after the statute of limitations has already run, tolling the statute until an injured party knows of, or in the exercise of reasonable diligence should have known of or discovered, the injury and resulting cause of action. Causes of action covered by the discovery rule include:

a. fraud;
b. childhood sexual abuse or incest;
c. medical malpractice; and
d. professional negligence.

A D cannot assert the defense of statute of limitations if he has induced the P’s failure to bring suit by fraudulent concealment.

Question 17

What are the statute of limitations periods in Oklahoma?

Answer 17

The period of one year for actions involving:

1. libel;
2. slander;
3. assault;
4. battery;
5. malicious prosecution;
6. false imprisonment; and
7. a statute for penalty or forfeiture.

The period of two years for actions involving:

1. trespass upon real property;
2. the taking, detaining, or injuring of personal property;
3. professional negligence;
4. personal injury;
5. the non-contractual rights of another;
6. fraud; and
7. child sexual abuse or incest.

The period of three years for actions involving:

1. oral contracts;
2. a liability created by statute; and
3. a foreign judgment.

The period of five years for actions involving:

1. written contracts;
2. official bonds or undertakings of an executor, administrator, guardian, sheriff, or any other officer;
3. bonds or undertaking given in attachment, injunction, or arrest; and
4. any other claims not enumerated by statute.

The period of 15 years for actions involving real property.

The period for actions involving the recovery of damages for injury suffered as a result of criminal acts is:

1. any time during the incarceration of the offender for the offense on which the action is based; or
2. five years after the offender is released from the correctional facility, if the offender was serving time for the offense on which the action is based.

Governmental tort claims must be submitted within one year after the loss. If the claim is denied, or not approved within 90 days after it is submitted, the limitations period for filing an action is 180 days after such denial.

Court-ordered child support is owed until it is paid in full and is not subject to a statute of limitations.

Question 18

What is tolling the limitations period?

Answer 18

If a person entitled to bring an action, other than for the recovery of real property, is under any legal disability at the time the cause of action accrued, he may bring such action within one year after the disability is removed.

The period for commencement of an action involving childhood sexual abuse or incest is tolled until the child reaches the age of 18 or until five years after the offender is released, whichever is later.

For actions involving medical malpractice, an action for personal injury to a minor under the age of 12 arising from medical malpractice must be brought by the minor’s parent or guardian within seven years of infliction of the injury. A minor 12 years of age or older must bring such action within one year after attaining majority, but in no event less than two years from the date of injury. An action for personal injury arising from medical malpractice to a person adjudged as incompetent must be brought by the incompetent person’s guardian within seven years of infliction of the injury. If the incompetent has been adjudged to be competent, he must bring the action within one year after the adjudication of such competency, but in no event less than two years from the date of the injury.

The limitations period may also be tolled under the doctrine of equitable estoppel if the D took some action to prevent the P from filing the claim or induced him to delay filing until the limitations period had run.

Question 19

What is a saving statute?

Answer 19

It is a particular kind of tolling statute that stops the running of the applicable limitations period for claims timely filed but subsequently dismissed for reasons other than on the merits.

Oklahoma provides that if an action is brought within the limitations period and a judgment thereon for the P is reversed, or if the P fails in such action otherwise than upon the merits, the P may commence a new action within one year after the reversal or failure, even if the time limit for commencing the action has expired.

The original action must have been timely filed in Oklahoma for the savings statute to apply.

Question 20

What is a borrowing statute?

Answer 20

It is under which one state may borrow a shorter statute of limitations for a cause of action arising in another state.

Oklahoma’s statute state that for causes of action accruing out-of-state, the applicable limitation period will be determined by the law of whichever state last bars the claim.

Question 21

What is a statute of repose?

Answer 21

It is similar to a statute of limitations, except that it begins to run upon the happening of a specific act or event, regardless of when the resulting injury occurs or is discovered.

Oklahoma has a statute of repose which bars an action in tort to recover damages resulting from deficient design, planning, supervision, or observation of construction on real property after the passage of 10 years, regardless of when such injury occurs or is detected.