Senate Bill No. 531
(By Senator Kessler)
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[Introduced February 9, 2007; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §31D-5-504 of the Code of West
Virginia, 1931, as amended, relating to the process of filing
with the office of the Secretary of State service of process
on corporations in class action suits.
Be it enacted by the Legislature of West Virginia:
That §31D-5-504 of the Code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:
ARTICLE 5. OFFICE AND AGENT.
§31D-5-504. Service on corporation.
(a) A corporation's registered agent is the corporation's
agent for service of process, notice or demand required or
permitted by law to be served on the corporation.
(b) If a corporation has no registered agent, or the agent
cannot with reasonable diligence be served, the corporation may be
served by registered or certified mail, return receipt requested, addressed to the secretary of the corporation at its principal
office. Service is perfected under this subsection at the earliest
of:
(1) The date the corporation receives the mail;
(2) The date shown on the return receipt, if signed on behalf
of the corporation; or
(3) Five days after its deposit in the United States mail, as
evidenced by the postmark, if mailed postpaid and correctly
addressed.
(c) In addition to the methods of service on a corporation
provided in subsections (a) and (b) of this section, the Secretary
of State is hereby constituted the attorney-in-fact for and on
behalf of each corporation created pursuant to the provisions of
this chapter. The Secretary of State has the authority to accept
service of notice and process on behalf of each corporation and is
an agent of the corporation upon whom service of notice and process
may be made in this state for and upon each corporation. No act of
a corporation appointing the Secretary of State as attorney-in-fact
is necessary. Service of any process, notice or demand on the
Secretary of State may be made by delivering to and leaving with
the Secretary of State the original process, notice or demand and
two copies of the process, notice or demand for each defendant,
along with the fee required by section two, article one, chapter
fifty-nine of this code: Provided, That with regard to a class
action suit in which all defendants are to be served with the same process, notice or demand, service may be made by filing with the
Secretary of State the original process, notice or demand and one
copy for each named defendant. Immediately after being served with
or accepting any process or notice, the Secretary of State shall:
(1) File in his or her office a copy of the process or notice,
endorsed as of the time of service or acceptance; and (2) transmit
one copy of the process or notice by registered or certified mail,
return receipt requested, to: (A) The corporation's registered
agent; or (B) if there is no registered agent, to the individual
whose name and address was last given to the Secretary of State's
office as the person to whom notice and process are to be sent and
if no person has been named, to the principal office of the
corporation as that address was last given to the Secretary of
State's office. Service or acceptance of process or notice is
sufficient if return receipt is signed by an agent or employee of
the corporation, or the registered or certified mail sent by the
Secretary of State is refused by the addressee and the registered
or certified mail is returned to the Secretary of State, or to his
or her office, showing the stamp of the United States Postal
Service that delivery has been refused, and the return receipt or
registered or certified mail is appended to the original process or
notice and filed in the clerk's office of the court from which the
process or notice was issued. No process or notice may be served
on the Secretary of State or accepted by him or her less than ten
days before the return day of the process or notice. The court may order continuances as may be reasonable to afford each defendant
opportunity to defend the action or proceedings.
(d) This section does not prescribe the only means, or
necessarily the required means, of serving a corporation.
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(NOTE: The purpose of this bill is to reduce the number of
copies of law suit petitions, demands or complaints to be filed
with the Secretary of State in class action law suits.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)