H. Filing and Service of Pleadings, Judgements and Other Section 3 of the new Rules expands the manner of filing.

r of filing. Filing
Papers (Rule 13) can be made in four ways:

Section 1. Coverage. — This Rule shall govern the filing of all Kinds Manner of Filing Date of Filing
pleadings, motions, and other court submissions, as well as their Personal Submitting The clerk of court
service, except those for which a different mode of service is Filing personally the shall endorse on the
prescribed. original thereof, pleading the date
plainly indicated as and hour of filing.
Section 2. Filing and Service, defined. — Filing is the act of such, to the court.
submitting the pleading or other paper to the court. Filing by Sending them by The date as shown
Registered registered mail. by the post office
Service is the act of providing a party with a copy of the pleading Mail stamp on the
or any other court submission. If a party has appeared by Filing by Sending them by envelope or the
counsel, service upon such party shall be made upon his or her Accredited accredited courier. registry receipt, shall
counsel, unless service upon the party and the party’s counsel is Courier be the date of filing,
ordered by the court. Where one only be entitled to one copy of payment or
any paper served by the opposite side. deposit in court.
Transmittal Transmitting them The date of
Filing – act of submitting the pleading or other paper to the by by electronic mail or electronic
court. Electronic other electronic transmission.
Mail and means as
Service – the act of providing a party with a copy of the pleading other may be authorized
or other court submission. Electronic by the Court in
Means places where the
Section 2 mandates that if one counsel appears for several court is
parties, such counsel shall only be entitled to one copy of any electronically
paper served by the opposite side. equipped.

Likewise, where several counsels appear for one party, such Modes of Service
party shall be entitled to only one copy of any pleading or paper
to be served upon the lead counsel if one is designated, or Section 5. Modes of Service. — Pleadings, motions, notices,
upon any one of them if there is no designation of a lead orders, judgments, and other court submissions shall be served
counsel. personally or by registered mail, accredited courier, electronic
mail, facsimile transmission, other electronic means as may be
Manner of Filing authorized by the Court, or as provided for in international
conventions to which the Philippines is a party.
Section. 3. Manner of filing. — The filing of pleadings and
other court submissions shall be made by: Under the new rule, there are five methods of service: PeRA-
EFO-I
(a) Submitting personally the original thereof, plainly indicated
as such, to the court; 1) By Personal service;

(b) Sending them by registered mail; 2) By Registered mail;

(c) Sending them by accredited courier; or 3) By Accredited courier;

(d) Transmitting them by electronic mail or other electronic 4) By Electronic mail, Facsimile transmission, Other
means as may be authorized by the Court in places where the electronic means as may be authorized by the Court; or
court is electronically equipped.
5) As provided for in International conventions to which
In the first case, the clerk of court shall endorse on the pleading the Philippines is a party.
the date and hour of filing. In the second and third cases, the
date of the mailing of motions, pleadings, and other court PERSONAL SERVICE
submissions, and payments or deposits, as shown by the post
office stamp on the envelope or the registry receipt, shall be
considered as the date of their filing, payment, or deposit in Section 6. Personal Service. — Court submissions may be
court. The envelope shall be attached to the record of the case. served by personal delivery of a copy to the party or to the
In the fourth case, the date of electronic transmission shall be party’s counsel, or to their authorized representative named in
considered as the date of filing. the appropriate pleading or motion, or by leaving it in his or her
office with his or her clerk, or with a person having charge
thereof. If no person is found in his or her office, or his or her 6) With Instructions to the postmaster to return the
office is not known, or he or she has no office, then by leaving mail to the sender after 10 calendar days if
the copy, between the hours of eight in the morning and six in undelivered [Sec. 7, Rule 13].
the evening, at the party's or counsel's residence, if known, with NOTE: If no registry service is available in the locality of either
a person of sufficient age and discretion residing therein. the sender or the addressee, service may be done by ordinary
mail.
Q: How is personal service of court submissions done?
SUBSTITUTED SERVICE
→ A: POL

Section 8. Substituted service. – If service of pleadings,

1) By Personal delivery of a copy to the party or to
motions, notices, resolutions, orders and other papers cannot be
the party’s counsel, or to their authorized
made under the two preceding sections, the office and place of
representative named in the appropriate pleading
residence of the party or his or her counsel being unknown,
or motion;
service may be made by delivering the copy to the clerk of court,
with proof of failure of both personal service and service by mail.
2) By leaving it in his or her Office with his or her
The service is complete at the time of such delivery.
clerk, or with a person having charge thereof; or

3) Leaving a copy in the party’s or counsel’s residence Q: What is substituted service and when may it be resorted
is proper service, if: to?

a) there is no person found in his office, or → A: If personal service or service by mail cannot be
if his office is not known, or if he has no made, since the office and place of residence of the
office. party or his counsel is unknown. Service may be made
by delivering the copy to the clerk of court, with proof
b) it was served between 8am – 6pm of failure of both personal service and service by mail.
The service is complete at the time of such delivery
c) it was served upon a person residing [Sec. 8, Rule 13].
therein of sufficient age and discretion
[Sec. 6, Rule 13]. NOTE: Differentiate from Section 6.

SERVICE BY MAIL SERVICE BY ELECTRONIC MEANS AND FACSIMILE

Section 7. Service by mail. — Service by registered mail shall Section 9. Service by electronic means and facsimile. —
be made by depositing the copy in the post office, in a sealed Service by electronic means and facsimile shall be made if the
envelope, plainly addressed to the party or to the party’s counsel party concerned consents to such modes of service. Service by
at his or her office, if known, otherwise at his or her residence, if electronic means shall be made by sending an e-mail to the
known, with postage fully pre-paid, and with instructions to the
postmaster to return the mail to the sender after ten (10) party’s or counsel’s electronic mail address, or through other
calendar days if undelivered. If no registry service is available in electronic means of transmission as the parties may agree on, or
the locality of either the sender or the addressee, service may be upon direction of the court.
done by ordinary mail.
Service by facsimile shall be made by sending a facsimile copy
to the party’s or counsel’s given facsimile number.
Q: How is service by registered mail of court submissions
made?
Q: When is service by electronic means or facsimile allowed?
→ A: DSARPI
→ A: Service by electronic means and facsimile shall be
1) Depositing the copy in the post office; made if the party concerned consents to such modes
of service [Sec. 9(1), Rule 13].
2) In a Sealed envelope; Q: How is service by electronic means made?

3) Plainly Addressed to the party or to the party’s → A: Service by electronic means shall be made by
counsel at his or her office, if known; sending an e-mail to the party’s or counsel’s electronic
mail address, or through other electronic means of
4) Otherwise, at his or her Residence, if known; transmission as the parties may agree on, or upon
direction of the court [Sec. 9(2), Rule 13].
5) With postage fully Pre-paid; and
Q: How is service by facsimile made? or served personally or by registered mail, unless otherwise
permitted by court: ISAC
→ A: Service by facsimile shall be made by sending a
facsimile copy to the party’s or counsel’s given facsimile 1) Initiatory pleadings and initial responsive pleadings,
number. such as an answer;
NOTE: ELECTRONIC SERVICE: through e-mail to the party’s or
counsel’s e-mail address, or it may be done through other 2) Subpoenae, protection orders, and writs;
electronic means (perhaps through Viber, or Facebook
Messenger, etc.) 3) Appendices and exhibits to motions, or other
documents that are not readily amenable to electronic
REMEMBER: So long as the parties may agree on, or upon scanning may, at the option of the party filing such, be
direction of the court. filed and served conventionally; and

PRESUMPTIVE SERVICE 4) Sealed and Confidential documents or records [Sec. 14,

Rule 13].
(a) Initiatory pleadings and initial responsive pleadings, such as
Section 10. Presumptive service. — There shall be presumptive
an answer;
notice to a party of a court setting if such notice appears on the
records to have been mailed at least twenty (20) calendar days
Initiatory pleadings – complaint, third-party complaint, or
prior to the scheduled date of hearing and if the addressee is
complaint-in intervention, among others, and the answers
from within the same judicial region of the court where the case
thereto.
is pending, or at least thirty (30) calendar days if the addressee
is from outside the judicial region.
Initial responsive pleadings – an answer

Q: When is service presume to have been made?

Rationale: The filing thereof ordinarily entails or requires
payment of the prescribed docket or filing fees (and to my
→ A: There shall be presumptive notice to a party of a
knowledge, the court has no infrastructure yet allowing e-
court setting if such notice appears from the record
payment) – especially if permissive counterclaims are pleaded in
that the same has been mailed at least:
an answer.

o 20 calendar days prior to the scheduled

(b) Subpoenae, protection orders, and writs;
hearing if the addressee is from within the
same judicial region of the court where the
case is pending; or Rationale: Service of such processes or writs would have to be
done by the court sheriff and service thereof ordinarily requires
o 30 calendar days, if outside judicial region. the submission of a return (report) to be submitted by the court
sheriff.

CONVENTIONAL SERVICE OR FILING

(c) Appendices and exhibits to motions, or other documents that
are not readily amenable to electronic scanning may, at the
Section 14. Conventional service or filing of orders, option of the party filing such, be filed and served
pleadings and other documents. – Notwithstanding the conventionally; and
foregoing, the following orders, pleadings, and other documents
must be served or filed personally or by registered mail when Rationale: Such appendices and exhibits are so voluminous that
allowed, and shall not be served or filed electronically, unless it would be difficult, if not impossible, to scan and send them via
express permission is granted by the Court: electronic means.

(a) Initiatory pleadings and initial responsive pleadings, such as (d) Sealed and confidential documents or records.
an answer;
Rationale: The reason for the proscription is simple – to keep
(b) Subpoenae, protection orders, and writs;
and maintain the confidentiality of such documents or records.

(c) Appendices and exhibits to motions, or other documents that

Notice of Lis Pendens
are not readily amenable to electronic scanning may, at the
option of the party filing such, be filed and served
conventionally; and Section 19. Notice of lis pendens. –— In an action affecting
the title or the right of possession of real property, the plaintiff
(d) Sealed and confidential documents or records. and the defendant, when affirmative relief is claimed in his or her
answer, may record in the office of the registry of deeds of the
There are pleadings and other documents which must be filed province in which the property is situated a notice of the
pendency of the action. Said notice shall contain the names of Action in personam The purpose of summons in
the parties and the object of the action or defense, and a action in personam is to
description of the property in that province affected thereby. acquire jurisdiction over the
Only from the time of filing such notice for record shall a person of the defendant.
purchaser, or encumbrancer of the property affected thereby, be Actions in rem & quasi in The purpose of summons in
deemed to have constructive notice of the pendency of the rem action action in rem or quasi
action, and only of its pendency against the parties designated in rem is not to acquire
by their real names. jurisdiction over the
defendant but to satisfy the
The notice of lis pendens hereinabove mentioned may be element of due process.
cancelled only upon order of the court, after proper showing
that the notice is for the purpose of molesting the adverse party, When is summons issued?
or that it is not necessary to protect the rights of the party who
caused it to be recorded. Rule 14, Section 1. Clerk to issue summons. – Unless the
complaint is on its face dismissible under Section 1, Rule 9, the
Q: What is a notice of lis pendens? court shall, within five (5) calendar days from receipt of the
initiatory pleading and proof of payment of the requisite legal
→ A: In an action affecting the title or the right of fees, direct the clerk of court to issue the corresponding
possession of real property, the plaintiff and the summons to the defendants.
defendant, when affirmative relief is claimed in his or
her answer, may record in the office of the registry of Implied in this provision is that the Court can dismiss the
deeds of the province in which the property is situated complaint pursuant to Section 1, Rule 9. Section 1, Rule 9
a notice of the pendency of the action. Said notice shall provides that the court shall dismiss the complaint:
contain the names of the parties and the object of the
action or defense, and a description of the property in 1) if it appears that the court has no jurisdiction over the
that province affected thereby [Sec. 19 (1), Rule 13]. subject matter;
Q: What is the effect of a notice of lis pendens?
2) that there is another action pending between the same
→ A: From the time of filing such notice for record shall a parties for the same cause; or
purchaser, or encumbrancer of the property affected
thereby, be deemed to have constructive notice of the 3) that the action is barred by a prior judgment; or
pendency of the action, and only of its pendency 4) by the statute of limitations.
against the parties designated by their real names [Sec. Otherwise, the court shall issue summons.
19 (1), Rule 13].
Q: How may a notice of lis pendens be cancelled? NOTE: It is the clerk of court who will issue the summons upon
the direction of the court.
→ A: It may be cancelled only upon order of the court,
after proper showing that the notice is for the purpose Who is authorized to serve summons?
of molesting the adverse party, or that it is not
necessary to protect the rights of the party who caused
Section 3. By whom served. — The summons may be served
it to be recorded [Sec. 19 (2), Rule 13].
by the sheriff, his or her deputy, or other proper court officer,
and in case of failure of service of summons by them, the court
I. Summons (Rule 14)
may authorize the plaintiff - to serve the summons - together
with the sheriff.
Summons – the writ by which the defendant is notified of the
action brought against him.
In cases where summons is to be served outside the judicial
region of the court where the case is pending, the plaintiff shall
Purpose of Summons
be authorized to cause the service of summons.
1) To acquire jurisdiction over the person of the
If the plaintiff is a juridical entity, it shall notify the court, in
defendant; and
writing, and name its authorized representative therein,
attaching a board resolution or secretary’s certificate thereto, as
2) To notify the defendant that an action has been
the case may be, stating that such representative is duly
commenced, so that he may be given an opportunity
authorized to serve the summons on behalf of the plaintiff.
to be heard on the claim against him [Nation Petroleum
Gas Incorporated vs. Rizal Commercial Banking
If the plaintiff misrepresents that the defendant was served
Corporation].
summons, and it is later proved that no summons was served,
Recall: Nature and purpose of summons in relation to actions in
the case shall be dismissed with prejudice, the proceedings shall
personam, in rem, and quasi in rem
be nullified, and the plaintiff shall be meted with appropriate
sanctions. cannot be refiled.

If summons is returned without being served on any or all the 2) Proceedings shall be nullified;
defendants, the court shall order the plaintiff to cause the service
of summons by other means available under the Rules. 3) Plaintiff shall be meted with appropriate sanctions. –
Can be cited in contempt, prosecuted criminally for
Failure to comply with the order shall cause the dismissal of the submitting a falsified return to the court anent the
initiatory pleading without prejudice. alleged service of summons on the defendant.

The summons may be served by the sheriff, his deputy, or Q: What if summons cannot be served upon all or any of the
other proper court officer. defendants?

Section 3 likewise provides for instances when the plaintiff may → A: If summons is returned without being served on any
be authorized to serve summons. or all the defendants, the court shall order the plaintiff
to cause the service of summons by other means
Instances by which the plaintiff may be authorized to serve available under these Rules. Failure to comply with the
summons upon the defendant: order shall cause the dismissal of the initiatory pleading
without prejudice.
1) In case there is failure to serve summons by the sheriff
or other proper court officer. In which case, the plaintiff Service of Summons
shall be accompanied by the sheriff.
SERVICE IN PERSON ON DEFENDANT
2) 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 Section 5. Service in person on defendant. — Whenever
summons. practicable, the summons shall be served by handing a copy
thereof to the defendant in person and informing the defendant
Illustration: 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
Jack filed before RTC of Malolos City a case for the presence of the defendant.
collection of sum of money against David Licauco a
resident of Antipolo City, Rizal. [NOTE: Malolos City Q: How service in person on defendant made?
belongs to the 3rd judicial region, while Antipolo City
Rizal, belongs to the fourth judicial region] → A: Service in person on defendant is made either:

In this case, RTC Malolos City, upon ex parte motion of 1) By handing a copy thereof to the defendant in
Waldi, may authorize and direct Jack or his authorized person and informing the defendant that he
representative to cause the service of summons on or she is being served; or
David Licauco in Antipolo City, Rizal.
2) If he or she refuses to receive and sign for it,
Or, the court may even motu proprio authorize plaintiff by leaving the summons within the view and
Jack to cause the service of summons. in the presence of the defendant [Sec. 5, Rule
14].
In so serving the summons, Jack or his authorized
representative may or may not be accompanied by the SUBSTITUTED SERVICE
court sheriff, or other court officer.
Section 6. Substituted service. — If, for justifiable causes, the
If plaintiff is a juridical entity:
defendant cannot be served personally after at least three (3)
attempts on two (2) different dates, service may be effected:
1) It shall notify the court in writing.
a) By leaving copies of the summons at the defendant's
2) Name its authorized representatives.
residence to a person at least eighteen (18) years of age and of
sufficient discretion residing therein;
3) Attach board resolution or secretary’s certificate,
stating that representative is duly authorized to serve
b) By leaving copies of the summons at the defendant's office or
summons.
regular place of business with some competent person in charge
thereof. A competent person includes, but is not limited to, one
If plaintiff misrepresents service:
who customarily receives correspondences for the defendant;

1) The case shall be dismissed with prejudice; – The case

c) By leaving copies of the summons, if refused entry upon attempts on two (2) different dates, service may be made
making his or her authority and purpose known, with any of the electronically, if allowed by the court, as provided under Section
officers of the homeowners’ association or condominium 6 of this Rule.
corporation, or its chief security officer in charge of the
community or the building where the defendant may be found; Q: How is summons served in domestic private juridical
and entity?

d) By sending an electronic mail to the defendant’s electronic → A: When the defendant is a corporation, partnership or
mail address, if allowed by the court. association organized under the laws of the Philippines
with a juridical personality, service may be made on:
Q: When is substituted service of summons allowed?
1) The president, managing partner, general
1) A: Substituted service can only be had if the defendant manager, corporate secretary, treasurer, or in-
cannot be served personally after at least 3 attempts on house counsel of the corporation wherever they
2 different dates [Sec. 6(1), Rule 14]. may be found, or in their absence or unavailability,
their secretaries.
Methods of Substituted Services
2) The person who customarily receives the
1) By leaving copies of the summons at the residence of correspondence for the defendant at its principal
the defendant with a person, at least 18 and of office, if such service cannot be made upon any of
sufficient discretion residing therein; the foregoing persons.

2) By leaving copies of the summons at the defendant’s 3) The receiver or liquidator, as the case may be, in
office or regular place of business with a competent case the domestic juridical entity is under
person. A competent person includes, but is not limited receivership or liquidation [Sec. 12, Rule 14].
to, one who customarily receives correspondences for Q: What is the effect of refusal of the above-named persons
the defendant; to receive the summons?

3) If refused entry, by leaving copied of the summons with → A: If there is refusal to receive summons despite at least
any of the officers of the homeowners’ association or 3 attempts on 2 different dates, service may be made
condo corp, or its chief security officer in charge of the electronically, if allowed by the court, as provided
community or the building where the defendant may under Section 6 of this Rule [Sec. 12, Rule 14].
be found; and
SUMMARY!
4) By sending an electronic mail to the defendant’s
electronic mail address, if allowed by the court [Sec. 6, Serve upon:
Rule 14].
1) President; or
SERVICE DOMESTIC PRIVATE JURIDICAL ENTITY 2) Managing partner; or
3) General manager; or
4) Corporate secretary; or
Section 12. Service upon domestic private juridical entity. —
5) Treasurer; or
When the defendant is a corporation, partnership or association
6) In-house counsel; or
organized under the laws of the Philippines with a juridical
7) On the respective secretaries of the above-named
personality, service may be made on the president, managing
corporate officers, in their absence or unavailability; or
partner, general manager, corporate secretary, treasurer, or in-
8) On the person who customarily receives the
house counsel of the corporation wherever they may be found,
correspondence for the domestic juridical entity at its
or in their absence or unavailability, on their secretaries.
principal office, in the event that service of summons
couldnot be made on the persons enumerated under
If such service cannot be made upon any of the foregoing
items (a) to (g), above; or
persons, it shall be made upon the person who customarily
9) The receiver or liquidator, as the case may be, in case
receives the correspondence for the defendant at its principal
the domestic juridical entity is under receivership or
office.
liquidation; or
10) Electronically, if there is a refusal.
In case the domestic juridical entity is under receivership or
liquidation, service of summons shall be made on the receiver or
liquidator, as the case may be. DUTY OF COUNCEL OF RECORD

Should there be a refusal on the part of the persons above- Section 13. Duty of counsel of record. — Where the summons
mentioned to receive summons despite at least three (3) is improperly served and a lawyer makes a special appearance
on behalf of the defendant to, among others, question the Q: How is summons served on a foreign private juridical
validity of service of summons, the counsel shall be deputized entity?
by the court to serve summons on his or her client.
→ A: It depends.
→ Section 13, Rule 14 of the Amended Rules would seal
the fate of the defendant who wishes to question the 1) When the defendant is a foreign private juridical
court’s jurisdiction over his person, as it provides that entity which has transacted or is doing business in
where a lawyer makes a special appearance on behalf the Philippines, as defined by law, service may be
of the defendant to, among others, question the made on:
validity of service of summons, “the counsel shall be
deputized by the court to serve summons on his or her a) Its resident agent designated in
client.” accordance with law for that purpose; or

b) If there be no such agent, on the

→ NOTICE that lack of jurisdiction over the person of the government official designated by law to
defendant is NOT a ground to file motion to dismiss.
that effect, or on any of its officers,
agents, directors or trustees within the
→ Therefore, counsel for the defendant cannot then Philippines.
appear and court and object to the court’s jurisdiction
over the person of the defendant, since the court will 2) If the foreign private juridical entity is not
deputize the counsel to serve summons upon his client, registered in the Philippines, or has no resident
the defendant. agent but has transacted or is doing business in it,
as defined by law, such service may, with leave of
SERVICE UPON FOREIGN PRIVATE JURIDICAL ENTITIES court, be effected outside of the Philippines
through any of the following means: (P2-FEO)
Section 14. Service upon foreign private juridical entities. —
a) By personal service coursed through
When the defendant is a foreign private juridical entity which has
the appropriate court in the foreign
transacted or is doing business in the Philippines, as defined by
country with the assistance of the
law, service may be made on its resident agent designated in
department of foreign affairs;
accordance with law for that purpose, or, if there be no such
agent, on the government official designated by law to that
b) By publication once in a newspaper of
effect, or on any of its officers, agents, directors or trustees
general circulation in the country where
within the Philippines.
the defendant may be found and by
serving a copy of the summons and the
If the foreign private juridical entity is not registered in the
court order by registered mail at the last
Philippines, or has no resident agent but has transacted or is
known address of the defendant;
doing business in it, as defined by law, such service may, with
leave of court, be effected outside of the Philippines through any
c) By facsimile;
of the following means:

d) By electronic means with the prescribed

a) By personal service coursed through the appropriate court in
proof of service; or
the

e) By such other means as the court, in its

foreign country with the assistance of the department of foreign
discretion, may direct [Sec. 14, Rule 14].
affairs;

Q: What is the meaning of the phrase. “has transacted or is

b) By publication once in a newspaper of general circulation in
doing business in the Philippines?
the

country where the defendant may be found and by serving a → A: “Doing business” is defined in Section 3 (d) of the
copy of the summons and the court order by registered mail at Foreign Investment Act of 1991 (which we learned in
the last known address of the defendant; our Retail Trade Law subject) as including the following:
(SOAMI)
c) By facsimile;

d) By electronic means with the prescribed proof of service; or 1) Shall include soliciting orders, service
contracts, opening offices, whether called
e) By such other means as the court, in its discretion, may direct. "liaison" offices or branches.
 2) Appointing representatives or distributors whereabouts are unknown?
domiciled in the Philippines or who in any
calendar year stay in the country for a period → A: Service of summons may, by leave of court, be
or periods totalling one hundred eighty (180) effected through publication in a newspaper of general
days or more. circulation and in such places and for such time as the
court may order.
3) Participating in the management, supervision
or control of any domestic business, firm, However, such kind of service of summons can only be
entity or corporation in the Philippines. effected if there is a showing that defendant’s
whereabouts cannot be ascertained by diligent inquiry
4) Any other act or acts that imply a continuity within 90 days from the commencement of the suit.
of commercial dealings or arrangements and
contemplate to that extent the performance POINTS TO REMEMBER FOR SUMMONS BY PUBLICATION
of acts or works, or the exercise of some of the
functions normally incident to, and in 1) Must be done with leave of court.
progressive prosecution of, commercial gain
or of the purpose and object of the business 2) May be validly done regardless of kind of action (in
organization. personam, in rem, quasi in rem)

SERVICE PUBLIC CORPORATIONS 3) Defendant has 60 calendar days from notice to answer.

Section 15. Service upon public corporations. — When the EXTRATERRITORIAL SERVICE
defendant is the Republic of the Philippines, service may be
effected on the Solicitor General; in case of a province, city or Section 17. Extraterritorial service. — When the defendant
municipality, or like public corporations, service may be effected does not reside and is not found in the Philippines, and the
on its executive head, or on such other officer or officers as the action affects the personal status of the plaintiff or relates to, or
law or the court may direct. the subject of which is, property within the Philippines, in which
the defendant has or claims a lien or interest, actual or
Defendant Upon whom to serve the contingent, or in which the relief demanded consists, wholly or
summons in part, in excluding the defendant from any interest therein, or
REPUBLIC OF THE Solicitor General the property of the defendant has been attached within the
PHILIPPINES Philippines, service may, by leave of court, be effected out of the
PROVINCE, CITY, Executive head, other Philippines by personal service as under Section 6; or as
MUNICIPALITY officers provided for in international conventions to which the
OR LIKE PUBCORPS Philippines is a party; or by publication in a newspaper of general
circulation in such places and for such time as the court may
SERVICE UPON DEFENDANT WHOSE IDENTITY OR order, in which case a copy of the summons and order of the
WHEREABOUTS ARE UNKNOWN court shall be sent by registered mail to the last known address
of the defendant, or in any other manner the court may deem
sufficient. Any order granting such leave shall specify a
Section 16. Service upon defendant whose identity or
reasonable time, which shall not be less than sixty (60) calendar
whereabouts are unknown. — In any action where the
days after notice, within which the defendant must answer.
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 ninety (90) calendar days Requisites for Extraterritorial Service
from the commencement of the action, service may, by leave of
court, be effected upon him or her by publication in a newspaper 1) The defendant is a nonresident;
of general circulation and in such places and for such time as the
court may order. 2) He is not found in the Philippines; and

Any order granting such leave shall specify a reasonable time, 3) The action against him is either in rem or quasi in rem,
which shall not be less than sixty (60) calendar days after notice, such as:
within which the defendant must answer.
a) Actions that affect the personal status of the
plaintiff; or
Recall Sec 14, Rule 3: When the identity or name of the
defendant is unknown, he may be sued as “the unknown owner,”
b) Actions which relate to, or the subject matter of
until his true name is discovered.
which is property within the Philippines (real or
personal), in which the defendant claims a lien or
Q: How is service made upon defendant whose identity or
interest, actual or contingent; and
 Leave of Court
c) Actions in which the relief demanded consists
wholly or in part, in excluding the defendant from Section 19. Leave of court. — Any application to the court
an interest in property located in the Philippines; under this Rule for leave to effect service in any manner for which
or leave of court is necessary shall be made by motion in writing,
supported by affidavit of the plaintiff or some person on his
d) When the defendant’s property has been attached behalf, setting forth the grounds for the application.
in the Philippines.
Q: How is extraterritorial service of summons made?
When leave of court is required?

→ A: It may be made by leave of court: (PIPO) 1) Unregistered foreign private juridical entity or has no
agent but transacted in the PH (Sec 14, Rule 14)
1) Personal Service; or
2) Defendant whose identity or whereabouts are
2) As provided for in international conventions unknown (Sec 16, Rule 14)
to which the Philippines is a party;
e 3) Extraterritorial service of summons (Sec 17, Rule 14)
3) Publication in newspaper in such places and
for such time as the court may order, in which 4) Residents of the PH but who are temporarily out of the
case a copy of the summons and order of the country (Sec 18, Rule)
court shall be sent by registered mail to the NOTE: There must be a filing of a written motion, supported by
last known address of the defendant; or the affidavit of the plaintiff or some person acting on his or her
behalf in order for it to be a valid leave of court
4) Other manner the court may deem sufficient.
Return
NOTE: Defendant has 60 calendar days from notice to file
answer. Section 20. Return. — Within thirty (30) calendar days from
issuance of summons by the clerk of court and receipt thereof,
RESIDENT TEMPORARILY OUT OF THE PHILIPPINES the sheriff or process server, or person authorized by the court,
shall complete its service. Within five (5) calendar days from
Section 18. Residents temporarily out of the Philippines. — service of summons, the server shall file with the court and serve
When any action is commenced against a defendant who a copy of the return to the plaintiff’s counsel, personally, by
ordinarily resides within the Philippines, but who is temporarily registered mail, or by electronic means authorized by the Rules.
out of it, service may, by leave of court, be also effected out of
the Philippines, as under the preceding Section. Should substituted service have been effected, the return shall
state the following:
Resident temporarily out of the PH
(1) The impossibility of prompt personal service within a period
Examples: vacation, working as an OFW. of thirty (30) calendar days from issue and receipt of summons;

Service of Summons Modes (2) The date and time of the three (3) attempts on at least (2) two
different dates to cause personal service and the details of the
1) By personal service of summons on the defendant inquiries made to locate the defendant residing thereat; and
himself or herself, in the Philippines, pursuant to
Section 5, Rule 14 of the Amended Rules of Court; or (3) The name of the person at least eighteen (18) years of age
and of sufficient discretion residing thereat, name of competent
→ This is possible if the defendant to happens to person in charge of the defendant’s office or regular place of
be here in the Philippines during the service business, or name of the officer of the homeowners’ association
of summons. or condominium corporation or its chief security officer in
charge of the community or building where the defendant may
2) Through substituted service of summons, pursuant to be found.
Section 6, Rule 14 of the Amended Rules of Court; or
This obligates the server to file with the court a copy of the
3) Through extraterritorial service of summons, in RETURN to the plaintiff’s counsel after 5 calendar days from
consonance with Section 17, Rule 14 of the Amended service of summons to defendant.
Rules of Court which includes, but is not limited, to
service of summons by publication or personal service If service was done through substitution (substituted service),
outside the Philippines, upon leave of court. the return must have the following contents:
 1) The impossibility of personal service within a period of
30 calendar days from issue and receipts of summons. 3) Where service by publication, it may be
proved by the
2) The date and time of the 3 attempts on atleast 2
different dates to cause personal service. a) Affidavit of the publisher, editor,
business or advertising manager, to
3) Details of the inquiries made to locate defendant which affidavit a copy of the
during the attempts. publication shall be attached; and by
an
4) Name of recipient
b) Affidavit showing the deposit of a
Proof of Service copy of the summons and order for
publication in the post office, postage
Section 21. Proof of service. — The proof of service of a prepaid, directed to the t by
summons shall be made in writing by the server and shall set registered mail to his or her last
forth the manner, place, and date of service; shall specify any known address.
papers which have been served with the process and the name
of the person who received the same; and shall be sworn to Voluntary Appearance
when made by a person other than a sheriff or his or her deputy.
Section 23. Voluntary appearance. — The defendant's
If summons was served by electronic mail, a printout of said e- voluntary appearance in the action shall be equivalent to service
mail, with a copy of the summons as served, and the affidavit of of summons. The inclusion in a motion to dismiss of other
the person mailing, shall constitute as proof of service. grounds aside from lack of jurisdiction over the person of the
defendant shall be deemed a voluntary appearance.
Section 22. Proof of service by publication. — If the service
has been made by publication, service may be proved by the How does the court acquire jurisdiction over the person of
affidavit of the publisher, editor, business or advertising the defendant?
manager, to which affidavit a copy of the publication shall be
attached and by an affidavit showing the deposit of a copy of 1) Proper service of summons
the summons and order for publication in the post office,
postage prepaid, directed to the defendant by registered mail to 2) Voluntary appearance through (1) defendant’s
his or her last known address. appearance in court, or (2) inclusion in a motion to
dismiss of other grounds other than lack of jurisdiction
Q: How is service of summons proved? over the person of the defendant.
Instances deemed to be voluntary submission of the
→ A: Service of summons may be proved by applying defendant:
the following rules:
1) He enters in the case through a lawyer (Tuason vs. CA)
1) The proof of service of a summons shall be 2) He files a motion for extension of time to file answer
made in writing by the server and shall set (Villareal vs. CA)
forth the: (MP3) 3) Filing a motion for reconsideration of the judgment by
default and a motion to admit answer (Europa vs. IAC
a) Manner of service; & Hunter Garments Mfg)
4) Jointly submitting a compromise agreement for
b) Place, and date of service; approval of the trial court (Algabre vs. CA)
WEEKS 14-17
c) Specify any Papers which have been
served with the process; J. Motions (Rule 15)

d) Name of the Person who received the Rule 15, Section 1. Motion defined. – A motion is an
same. It shall be sworn to when made application for relief other than by a pleading. (1)
by a person other than a sheriff or his
or her deputy [Sec. 21, Rule 14]. Rule 15, Section 2. Motions must be in writing. – All motions
shall be in writing except those made in open court or in the
2) If summons was served by electronic mail, course of a hearing or trial.
a printout of said e-mail, with a copy of the
summons as served, and the affidavit of A motion made in open court or in the course of a hearing or
the person mailing, shall constitute as trial should immediately be resolved in open court, after the
proof of service [Sec. 21, Rule 14]. adverse party is given the opportunity to argue his or her
opposition thereto. e) Motion for the issuance of an alias writ of execution;

When a motion is based on facts not appearing on record, the f) Motion for the issuance of a writ of possession;
court may hear the matter on affidavits or depositions presented
by the respective parties, but the court may direct that the g) Motion for the issuance of an order directing the sheriff to
matter be heard wholly or partly on oral testimony or execute the final certificate of sale; and
depositions.
h) Other similar motions.
Motion – application for relief other than by a pleading.
These motions shall not be set for hearing and shall be resolved
Therefore, a complaint, answer, counterclaim, crossclaim, third- by the court within five (5) calendar days from receipt thereof.
party complaint, or complaint-in-interventions, or reply, or
rejoinder are not motions. Non-litigious motion – Motions which the court may act upon
without prejudicing the rights of adverse parties are non-
Q: What is the required form of motions? litigious motions.

→ A: The following are non-litigious motions under the new

General Rule: All motions shall be in writing. Rules: (APE-AWW-SO)

Exception: Except those made in open court or in 1) Motion for the issuance of Alias summons;
the course of a hearing or trial.
NOTE: Verbal Motions: A motion made in open court or in the 2) Motion for Postponement;
course of a hearing or trial should immediately be resolved in
open court, after the adverse party is given the opportunity to 3) Motion for Extension to file answer;
argue his or her opposition thereto.
4) Motion for the issuance of an Alias writ of execution
General rule: Hearing is not necessary for a motion.
5) Motion for the issuance of a Writ of execution;
Exception: When a motion is based on facts not appearing on
record, the court may hear the matter on affidavits or 6) Motion for the issuance of a Writ of possession;
depositions presented by the respective parties, but the court
may direct that the matter be heard wholly or partly on oral 7) Motion for the issuance of an order directing the sheriff
testimony or depositions. to execute the final certificate of Sale; and

Contents 8) Other similar motions

Section 3. Contents. – A motion shall state the relief sought to Q: What should the court do with non-litigious motions?
be obtained and the grounds upon which it is based, and if
required by these Rules or necessary to prove facts alleged → A: These motions shall not be set for hearing and
therein, shall be accompanied by supporting affidavits and other shall be resolved by the court within five (5)
papers. calendar days from receipt thereof.

RULE: A written motion that alleges facts not evident in the case Litigious Motions
records should be accompanied by supporting affidavits and
other documents to establish those extraneous facts. Section 5. Litigious motions. — (a) Litigious motions include:

Non-litigious Motions 1) Motion for bill of particulars;

Section 4. Non-litigious motions. — Motions which the court 2) Motion to dismiss;

may act upon without prejudicing the rights of adverse parties
are non-litigious motions. These motions include: 3) Motion for new trial;

a) Motion for the issuance of an alias summons; 4) Motion for reconsideration;

b) Motion for extension to file answer; 5) Motion for execution pending appeal;

c) Motion for postponement; 6) Motion to amend after a responsive pleading has been filed;

d) Motion for the issuance of a writ of execution; 7) Motion to cancel statutory lien;
8) Motion for an order to break in or for a writ of demolition; be considered by the court in the resolution of the
motion.
9) Motion for intervention;
Thereafter, the motion shall be resolved by the
10) Motion for judgment on the pleadings; court within fifteen (15) calendar days from its
receipt of the opposition thereto, or upon
11) Motion for summary judgment; expiration of the period to file such opposition.
Q: Are litigious motions set for hearing?
12) Demurrer to evidence;
→ A: Yes, but discretionary. The court may, in the
13) Motion to declare defendant in default; and exercise of its discretion, and if deemed necessary
for its resolution, call a hearing on the motion. The
14) Other similar motions. notice of hearing shall be addressed to all parties
concerned and shall specify the time and date of
(b) All motions shall be served by personal service, accredited the hearing.
private courier or registered mail, or electronic means so as to
ensure their receipt by the other party. NOTE: Where the court decides to conduct hearing on a litigious
motion, the same shall be set on a Friday, which is considered a
(c) The opposing party shall file his or her opposition to a motion day, except for motion requiring immediate action.
litigious motion within five (5) calendar days from receipt
thereof. No other submissions shall be considered by the court Omnibus Motion
in the resolution of the motion.
Section 9. Omnibus motion. — Subject to the provisions of
The motion shall be resolved by the court within fifteen (15) Section 1 of Rule 9, a motion attacking a pleading, order,
calendar days from its receipt of the opposition thereto, or upon judgment, or proceeding shall include all objections then
expiration of the period to file such opposition. available, and all objections not so included shall be deemed
waived.
Section. 6. Notice of hearing on litigious motions;
discretionary. — The court may, in the exercise of its discretion, Omnibus Motion – A motion that attacks a pleading, order,
and if deemed necessary for its resolution, call a hearing on the judgment or proceeding.
motion. The notice of hearing shall be addressed to all parties
concerned and shall specify the time and date of the hearing. Q: What is omnibus motion rule?

Section 7. Proof of service necessary. — No written motion → A: The omnibus rule embodied in this provision
shall be acted upon by the court without proof of service thereof, demands that all available objections be included in
pursuant to Section 5(b) hereof. a party’s motion, otherwise, said objections shall be
deemed waived; and the only grounds the court
Section 8. Motion day. — Except for motions requiring could take cognizance of, even if not pleaded in said
immediate action, where the court decides to conduct hearing motion are:
on a litigious motion, the same shall be set on a Friday.
1) Lack of jurisdiction over the subject matter
Litigious Motion – basically prejudices the right of the adverse
party (Alcaraz vs. Judge Fatima Gonzales-Asdala); a denial or 2) Litis pendentia
grant thereof would substantially prejudice the rights of the
parties. 3) Res judicata

Q: How must litigious motion be served? 4) Statute of limitation or prescription

→ A: All motions shall be served by personal service, Motion for Leave

accredited private courier or registered mail, or
electronic means so as to ensure their receipt by the
Section 10. Motion for leave. — A motion for leave to file a
other party.
pleading or motion shall be accompanied by the pleading or
motion sought to be admitted.
Q: What is the period for filing opposition to a litigious
motion?
Where a party to the actions intends to file a pleading, or motion,
which requires prior leave of court, such motion for leave of
→ A: The opposing party shall file his or her
court must already be accompanied, as attachment thereto, the
opposition within 5 calendar days from receipt of
pleading or motion which the party sought to be admitted.
the litigated motion. No other submissions shall
 Form (a) Motion to dismiss

Section 11. Form. — The Rules applicable to pleadings shall General Rule: MTD are prohibited.
apply to written motions so far as concerns caption, designation,
signature, and other matters of form. Exception: MTDs are not prohibited if it invokes one of the
following grounds:
The appearance of a motion does not substantially differ from a
pleading, insofar as it concerns caption, designation, signature, 1) That the court has no jurisdiction over the
and other matters of form. subject matter of the claim;

NOTE: A motion need not be verified or under oath, except for 2) That there is another action pending between
a motion to set aside a default order. the same parties for the same cause;

3) That the cause of action is barred by a prior

Prohibited Motions
judgment; or

Section. 12. Prohibited motions. — The following motions

4) That the cause of action is barred by the statute
shall not be allowed:
of limitations.

(a) Motion to dismiss except on the following grounds:

(This is thoroughly discussed in Sec 12, Rule 8
and Sec 1, Rule 11)
1) That the court has no jurisdiction over the subject matter of
the claim;
Since MTD on the following grounds are allowed, then it can be
argued that Motion for Reconsideration on such grounds can
2) That there is another action pending between the same
also be filed.
parties for the same cause; and
This can be done before filing an answer wherein the defendant
3) That the cause of action is barred by a prior judgment or by
can still reiterate or raise such grounds for filing a motion to
the statute of limitations;
dismiss by way of affirmative defenses in the answer.

(b) Motion to hear affirmative defenses;

(b) Motion to hear affirmative defenses

(c) Motion for reconsideration of the court’s action on the

c) Motion for reconsideration of the court’s action on the
affirmative defenses;
affirmative defenses

(d) Motion to suspend proceedings without a temporary

d) Motion to suspend proceedings without a temporary
restraining order or injunction issued by a higher court;
restraining order or injunction issued by a higher court

(e) Motion for extension of time to file pleadings, affidavits or

e) Motion for extension of time to file pleadings, affidavits or any
any other papers, except a motion for extension to file an answer
other papers
as provided by Section 11, Rule 11; and
Motion for postponement intended for delay
(f) Motion for postponement intended for delay, except if it is
based on acts of God, force majeure or physical inability of the
Dismissal with Prejudice
witness to appear and testify. If the motion is granted based on
such exceptions, the moving party shall be warned that the
presentation of its evidence must still be terminated on the dates Section. 13. Dismissal with prejudice. — Subject to the right
previously agreed upon. of appeal, an order granting a motion to dismiss or an
affirmative defense that the cause of action is barred by a prior
A motion for postponement, whether written or oral, shall, at all judgment or by the statute of limitations; that the claim or
times, be accompanied by the original official receipt from the demand set forth in the plaintiff’s pleading has been paid,
office of the clerk of court evidencing payment of the waived, abandoned or otherwise extinguished; or that the claim
postponement fee under Section 21(b), Rule 141, to be on which the action is founded is unenforceable under the
submitted either at the time of the filing of said motion or not provisions of the statute of frauds, shall bar the refiling of the
later than the next hearing date. The clerk of court shall not same action or claim.
accept the motion unless accompanied by the original receipt.
Dismissal with Prejudice
As culled from the above provision a motion to dismiss is
prohibited, except if the same is based on any or all of the 1) An order granting MTD or affirmative defense on the
following grounds: ground of res judicata or prescription.
 2) Demand of plaintiff was extinguished by payment, 6) That the pleading asserting the claim states no cause
waiver or abandonment. of action;

3) The claim is unenforceable by virtue or statute of 7) That a condition precedent for filing the claim has not
frauds. been complied with.

Dismissal without Prejudice Dismissals based on these grounds are without prejudice
because they do not preclude the refiling of the same action.
1) MTD is grounded on bases other than the 4 grounds.
Dismissal upon Notice by Plaintiff
2) Lack of jurisdiction over the subject matter.
Section 1. Dismissal upon notice by plaintiff. — A complaint
K. Dismissal of Actions (Rule 17) may be dismissed by the plaintiff by filing a notice of dismissal
at any time before service of the answer or of a motion for
With prejudice vs. without prejudice; dismissals which have summary judgment. Upon such notice being filed, the court shall
an effect of an adjudication on the merits issue an order confirming the dismissal. Unless otherwise stated
in the notice, the dismissal is without prejudice, except that a
Difference between a dismissal with prejudice and one notice operates as an adjudication upon the merits when filed
without prejudice: by a plaintiff who has once dismissed in a competent court an
action based on or including the same claim.
Dismissal with prejudice disallows and bars the refiling of the
complaint, whereas, the same cannot be said of a dismissal Q: When can a plaintiff file a notice for the dismissal of his
without prejudice. Likewise, where the law permits, a dismissal complaint?
with prejudice is subject to the right of appeal [Strongworld
Construction Corporation, et al. v. Hon. Perello, et al.]. → A: The plaintiff, at any time before service of the
answer or of a motion for summary judgment may
DISMISSALS WITH PREJUDICE file a notice of dismissal. Upon such notice being
filed, the court shall issue an order confirming the
1) Barred by a prior judgment; dismissal.

2) Barred by the statute of limitations; Q: What is the nature of dismissal of the complaint upon
notice by the plaintiff?
3) That the claim or demand set forth in the plaintiff’s
pleading has been paid, waived, abandoned or → A:
otherwise extinguished; General Rule: Without prejudice

4) That the claim on which the action is founded is Exceptions:

unenforceable under the provisions of the statute of
frauds. 1) If the notice of dismissal provides that the
The nature of the dismissal founded on any of the preceding dismissal is with prejudice
grounds is with prejudice because the dismissal prevents the
refiling of the same action or claim. 2) If the plaintiff has previously dismissed the
same case in a court of competent
N.B. The remedy of the aggrieved party is APPEAL. jurisdiction based on or including the
same claim (Double dismissal rule)
DISMISSALS WITHOUT PREJUDICE
Dismissal upon Motion of Plaintiff
1) That the court has no jurisdiction over the person of the
defending party;
Section 2. Dismissal upon motion of plaintiff. — Except as
provided in the preceding section, a complaint shall not be
2) That the court has no jurisdiction over the subject
dismissed at the plaintiff's instance save upon approval of the
matter of the claim;
court and upon such terms and conditions as the court deems
proper. If a counterclaim has been pleaded by a defendant prior
3) That venue is improperly laid;
to the service upon him or her of the plaintiff's motion for
dismissal, the dismissal shall be limited to the complaint. The
4) That the plaintiff has no legal capacity to sue
dismissal shall be without prejudice to the right of the defendant
to prosecute his or her counterclaim in a separate action unless
5) That there is another action pending between the same
within fifteen (15) calendar days from notice of the motion he or
parties for the same cause;
she manifests his or her preference to have his or her defendant of plaintiff’s motion to dismiss, the dismissal shall be
counterclaim resolved in the same action. Unless otherwise limited to the complaint only.
specified in the order, a dismissal under this paragraph shall be
without prejudice. A class suit shall not be dismissed or For Class Suits
compromised without the approval of the court.
RULE: Dismissal shall always be approved by the court, since a
OKAY, SO THIS IS THE STORY. class suit does not only affect those who are actually present in,
or those who actually appear before, the court, but also those
The general rule is dismissal as a matter of right is without are similarly situated and who are, in essence, “represented” in
prejudice. the action.

But if an answer of motion for summary judgment has been Dismissal due to Fault of Plaintiff
served, then it is not a matter of right na.
Section 3. Dismissal due to fault of plaintiff. — If, for no
But the plaintiff can still file a motion to dismiss, but such will be justifiable cause, the plaintiff fails to appear on the date of the
at the discretion of the court. presentation of his or her evidence in chief on the complaint, or
to prosecute his or her action for an unreasonable length of time,
If the court grants the plaintiff’s motion to dismiss, the dismissal or to comply with these Rules or any order of the court, the
will be WITHOUT PREJUDICE, unless the motion prays that is be complaint may be dismissed upon motion of the defendant or
with prejudice or where the court directs that the dismissal will upon the court's own motion, without prejudice to the right of
be with prejudice. the defendant to prosecute his or her counterclaim in the same
or in a separate action. This dismissal shall have the effect of an
Q: When can the plaintiff file a motion to dismiss his adjudication upon the merits, unless otherwise declared by the
complaint? court.

If the answer or motion has already been served upon the Q: When is a dismissal due to the fault of the plaintiff?
plaintiff, dismissal is no longer a matter of right and will require
the filing of the motion to dismiss by the plaintiff. The said → A: The dismissal is due to the fault of the plaintiff in the
motion is subject to approval of the court [Section 2, Rule 17]. following instances: (APC)

NOTE: Dismissal is without prejudice unless otherwise provided 1) Plaintiff fails to Appear on the date of the
in the Order. presentation of his or her evidence in chief on
the complaint;
Effects of Dismissal on Counterclaim
2) Plaintiff’s failure to Prosecute his action for an
1) What is only dismissed is the complaint, but NOT THE unreasonable length of time; or
ACTION
3) Plaintiff’s failure to Comply with the Rules or
2) The defendant may prosecute his counterclaim in the any order of the court.
same action if within 15 calendar days from notice of
plaintiff’s motion to dismiss, the defendant manifests Effect when Plaintiff is at Fault
to the court his preference to have his counterclaims
resolved in that very same action. The dismissal of the action may either be (1) upon motion of the
defendant or (2) upon the court’s own motion.
3) If there is no manifestation by the defendant, the court
will dismiss the counterclaims, but there is no prejudice 1) Dismissal is without prejudice to the right of the
to the defendant’s opportunity to file a suit on the basis defendant to prosecute his or her counterclaim in the
of what he states in his counterclaim. same or in a separate action.

Judge Gito: I submit that the counterclaim can still be 2) Dismissal of the complaint is generally with prejudice
adjudicated in the same action. Section 2, Rule 17 may be to the right of the plaintiff, as it shall have the effect of
applicable. It is provided therein that: “the dismissal shall be an adjudication of merits.
without prejudice to the right of the defendant to prosecute his
or her counterclaim in a separate action unless within fifteen (15) NOTE: Dismissal cannot be said to be with prejudice of the right
calendar days from notice of the motion he or she manifests his of the plaintiff if the court has not acquired jurisdiction over the
or her preference to have his or her counterclaim resolved in the defendant in the first place.
same action.”

If the counterclaim has been pleaded prior to service upon the

 Dismissal of Counterclaim, Crossclaim or Third-Party (b) The simplification of the issues;
Complaint
(c) The possibility of obtaining stipulations or admissions of facts
Section 4. Dismissal of counterclaim, cross-claim, or third- and of documents to avoid unnecessary proof;
party complaint. — The provisions of this Rule shall apply to
the dismissal of any counterclaim, cross-claim, or third-party (d) The limitation of the number and identification of witnesses
complaint. A voluntary dismissal by the claimant by notice as in and the setting of trial dates;
Section 1 of this Rule, shall be made before a responsive
pleading or a motion for summary judgment is served or, if there (e) The advisability of a preliminary reference of issues to a
is none, before the introduction of evidence at the trial or commissioner;
hearing.
(f) The propriety of rendering judgment on the pleadings, or
RULE: A counterclaim, crossclaim, or third-party complaint may summary judgment, or of dismissing the action should a valid
also be dismissed by the claimant as a matter of right (1) by his ground therefor be found to exist;
filing of a notice of dismissal at any time before an answer or a
motion for summary judgment is served on the claimant or, if (g) The requirement for the parties to:
there is none, before the introduction of evidence at the trial or
hearing. 1. Mark their respective evidence if not yet marked in the judicial
affidavits of their witnesses;
L. Pre-Trial (Rule 18)
2. Examine and make comparisons of the adverse parties'
Pre-trial – a procedural device by which the court can compel evidence visa vis the copies to be marked;
the parties and their respective lawyers to appear before it and
take up the matters enumerated under Section 2, Rule 18, with 3. Manifest for the record stipulations regarding the faithfulness
possibility of arriving at an amicable settlement, but where no of the reproductions and the genuineness and due execution of
settlement is reached by the parties, then done for the purpose the adverse parties' evidence;
of simplifying and narrowing down the issues in the case, among
others. 4. Reserve evidence not available at the pre-trial, but only in the
following manner:
When should pre-trial be conducted?
i. For testimonial evidence, by giving the name or position and
the nature of the testimony of the proposed witness;
Section 1. When conducted. — After the last responsive
pleading has been served and filed, the branch clerk of court
ii. For documentary evidence and other object evidence, by
shall issue, within five (5) calendar days from filing, a notice of
giving a particular description of the evidence.
pre-trial which shall be set not later than sixty (60) calendar days
from the filing of the last responsive pleading.
No reservation shall be allowed if not made in the manner
described above.
When will the pre-trial happen?
(h) Such other matters as may aid in the prompt disposition of
1) After the defendant files an answer – if he fails to do so,
the action.
he will be declared in default, there the court renders
judgment, granting the plaintiff relief.
The failure without just cause of a party and counsel to appear
during pre-trial, despite notice, shall result in a waiver of any
2) After the lapse of the reglementary period for filing the
objections to the faithfulness of the reproductions marked, or
last responsive pleading – there should be a lapse of
their genuineness and due execution.
the reglementary period to give an opportunity for
parties to opt to file a reply or rejoinder.
The failure without just cause of a party and/or counsel to bring
the evidence required shall be deemed a waiver of the
What is the last pleading? Rejoinder which the defendant may
presentation of such evidence.
file in the event that the plaintiff filed a reply, attaching thereto
an actionable document.
The branch clerk of court shall prepare the minutes of the pre-
trial, which shall have the following format: (See prescribed form)
Nature and Purpose of Pre-Trial

Q: What should the court consider during pre-trial?

Section. 2. Nature and Purpose. — The pre-trial is mandatory
and should be terminated promptly. The court shall consider: → A: The court shall consider: (PSP-LAPRO)

(a) The possibility of an amicable settlement or of a submission 1) Possibility of an amicable settlement or of a

to alternative modes of dispute resolution;
 submission to alternative modes of dispute Effects of Failure to Appear
resolution;
The failure without just cause of a party and counsel to appear
2) Simplification of the issues; during pre-trial, despite notice, shall result in a waiver of any
objections to the faithfulness of the reproductions marked, or
3) Possibility of obtaining stipulations or their genuineness and due execution.
admissions of facts and of documents to
avoid unnecessary proof; Effects of Failure of a Party/or Counsel to Bring the Evidence
Required
4) Limitation of the number and identification of
witnesses and the setting of trial dates; The failure without just cause of a party and/or counsel to bring
the evidence required shall be deemed a waiver of the
5) Advisability of a preliminary reference of presentation of such evidence.
issues to a commissioner;
Notice of Pre-Trial
6) Propriety of rendering judgment on the
pleadings, or summary judgment, or of Section. 3. Notice of pre-trial. — The notice of pre-trial shall
dismissing the action should a valid ground include the dates respectively set for:
therefor be found to exist;
(a) Pre-trial;
7) Requirement for the parties during pre-trial;
(b) Court-Annexed Mediation; and
8) Other matters as may aid in the prompt
disposition of the action. (c) Judicial Dispute Resolution, if necessary.

Q: What should the court require the parties to do during The notice of pre-trial shall be served on counsel, or on the party
pre-trial? if he or she has no counsel. The counsel served with such notice
is charged with the duty of notifying the party represented by
→ A: The court should require the parties to: (MEME) him or her.

1) Mark their respective evidence if not yet Non-appearance at any of the foregoing settings shall be
marked in the judicial affidavits of their deemed as nonappearance at the pre-trial and shall merit the
witnesses; same sanctions under Section 5 hereof.

2) Examine and make comparisons of the Q: What should notice of pre-trial include?
adverse parties' evidence visa vis the copies to
be marked; → A: The notice of pre-trial shall include the dates
respectively set for:
3) Manifest for the record stipulations regarding
the faithfulness of the reproductions and the a) Pre-trial;
genuineness and due execution of the
adverse parties' evidence; b) Court-Annexed Mediation; and

4) Reserve Evidence not available at the pre-trial, c) Judicial Dispute Resolution, if necessary.
but only in the following manner:
RULE: The notice of the pre-trial shall be served on the counsel
i. For testimonial evidence, by giving of the party only, or on the party if he or she has no counsel.
the name or position and the nature Only when the litigant is not represented is when the notice of
of the testimony of the proposed pretrial is sent to the litigant.
witness;
EFFECT OF THE AMENDED RULES – Charges the counsel with
ii. For documentary evidence and other the duty to notify the party represented by him or her.
object evidence, by giving a
particular description of the
Appearance of Parties
evidence.

Section 4. Appearance of Parties. — It shall be the duty of the

NOTE: No reservation shall be
parties and their counsel to appear at the pre-trial, court-
allowed if not made in the manner
annexed mediation, and judicial dispute resolution, if necessary.
described above.
The non-appearance of a party and counsel may be excused only
for acts of God, force majeure, or duly substantiated physical
inability. 2) Defendant and counsel – Failure shall be cause to
allow the plaintiff to present his or her evidence exparte
A representative may appear on behalf of a party but must be within ten (10) calendar days from termination of the
fully authorized in writing to enter into an amicable settlement, pre-trial, and the court to render judgment on the basis
to submit to alternative modes of dispute resolution, and to of the evidence offered.
enter into stipulations or admissions of facts and documents.
Additional Notes regarding the ex parte presentation of
Section. 5. Effect of failure to appear. — When duly notified, evidence by the plaintiff:
the failure of the plaintiff and counsel to appear without valid
cause when so required, pursuant to the next preceding Section, • When the court decides on the basis of the ex parte
shall cause the dismissal of the action. The dismissal shall be with presentation of evidence by the plaintiff due to the
prejudice, unless otherwise ordered by the court. A similar absence of the defendant during the pre-trial, this
failure on the part of the defendant and counsel shall be cause judgment is based on evidence presented. This is
to allow the plaintiff to present his or her evidence exparte within different from judgment made by the court when the
ten (10) calendar days from termination of the pre-trial, and the defendant is declared in default for failing to file an
court to render judgment on the basis of the evidence offered. answer, since this kind of judgment is based on what is
prayed for by the plaintiff.
Q: Who must appear during pre-trial?
• The court will err if it will allow plaintiff to present
→ A: Both client and counsel must appear at the pre-trial, evidence without the presence of the defendant.
court-annexed mediation and judicial dispute Therefore, an order allowing the plaintiff to present his
resolution, if necessary. or her evidence ex parte does not dispose of the case
with finality. It is an interlocutory order; hence, it is
NOTE: Non-appearance at any of the foregoing settings shall be not appealable. Because this is unappealable,
deemed as non-appearance at the pre-trial and shall merit the defendant can only resort to certiorari, provided he first
same sanctions under Section 5 hereof. filed a motion for reconsideration on such order
without the need of attaching an affidavit of merit
Q: When may non-appearance of a party and counsel be thereto.
excused?
Pre-Trial Brief
→ A: The non-appearance of a party and counsel may be
excused only for: Section 6. Pre-trial brief. — The parties shall file with the court
and serve on the adverse party, in such manner as shall ensure
1) Acts of God; their receipt thereof at least three (3) calendar days before the
date of the pre-trial, their respective pre-trial briefs which shall
2) Force majeure; or contain, among others:

3) Duly substantiated physical inability (a) A concise statement of the case and the reliefs prayed for;
Q: Can a representative appear on behalf of a party during
the pre-trial? (b) A summary of admitted facts and proposed stipulation of
facts;
→ A: Yes. A representative may appear on behalf of a
party but must be fully authorized in writing to: (c) The main factual and legal issues to be tried or resolved;

1) Enter into an amicable settlement; (d) The propriety of referral of factual issues to commissioners;

2) Submit to alternative modes of dispute (e) The documents or other object evidence to be marked,
resolution; and stating the purpose thereof;

3) Enter into stipulations or admissions of facts (f) The names of the witnesses, and the summary of their
and documents. respective testimonies; and

Effects of the Failure to Appear without Valid Cause (g) A brief statement of points of law and citation of authorities.

1) Plaintiff and counsel – Failure caused the dismissal of Failure to file the pre-trial brief shall have the same effect as
the action. failure to appear at the pre-trial.

NOTE: The dismissal shall be with prejudice, unless

otherwise ordered by the court.
Content of a Pre-Trial Brief → A: The judge of the court to which the case is pending.
Judge Gito: So, if the case is pending before me, it’s my
1) Concise statement of the case and the reliefs prayed discretion to refer the case to JDR. If I think there is no possibility
for; between the parties to enter into an amicable settlement, it’s
useless for me to refer the case to JDR. But if you are asked who
2) Summary of admitted facts and proposed stipulation of will conduct JDR, it is not the court to whom the case was raffled
facts; but a different judge.

3) Main factual and legal issues to be tried or resolved; Q: What is the next procedure if the judicial dispute
resolution fails?
4) Propriety of referral of factual issues to commissioners;
→ A: If judicial dispute resolution fails, trial before the
5) Documents or other object evidence to be marked, original court shall proceed on the dates agreed upon.
stating the purpose thereof;
NOTE: All proceedings during the court-annexed mediation and
6) Names of the witnesses, and the summary of their the judicial dispute resolution shall be confidential. Confidential,
respective testimonies; and as any statement, disclosure, or admissions made by the parties
7) Brief statement of points of law and citation of cannot be utilized for or against them during the trial of the case;
authorities. considered part of pre-trial.

RULE: Submission of a pre-trial brief is mandatory. Failure to Judge After Pre-Trial

submit the same warrants operation of Section 5, Rule 18.
Section. 10. Judgment after pre-trial. — Should there be no
Requirements more controverted facts, or no more genuine issue as to any
material fact, or an absence of any issue, or should the answer
1) File with court; fail to tender an issue, the court shall, without prejudice to a
2) Serve copy to adverse party; party moving for judgment on the pleadings under Rule 34 or
3) Ensure receipt at least 3 days before scheduled pre- summary judgment under Rule 35, motu proprio include in the
trial. pre-trial order that the case be submitted for summary
judgment or judgment on the pleadings, without need of
Judicial Dispute Resolution position papers or memoranda. In such cases, judgment shall be
rendered within ninety (90) calendar days from termination of
Section 9. Judicial Dispute Resolution. — Only if the judge of the pretrial.
the court to which the case was originally raffled is convinced
that settlement is still possible, the case may be referred to The order of the court to submit the case for judgment pursuant
another court for judicial dispute resolution. The judicial dispute to this Rule shall not be the subject to appeal or certiorari.
resolution shall be conducted within a non-extendible period of
fifteen (15) calendar days from notice of failure of the court- Rationale for the amendment: to give more teeth to the
annexed mediation. authority of the court under Section 2 (f), Rule 18 of the
Amended Rules to determine during the pretrial the propriety of
If judicial dispute resolution fails, trial before the original court rendering judgment on the pleading, or summary judgment,
shallproceed on the dates agreed upon. among others.

All proceedings during the court-annexed mediation and the When the Case shall be Submitted for Summary Judgement?
judicial dispute resolution shall be confidential.
1) There is no more controverted facts;
Q: When may JDR be conducted?
2) No more genuine issues as to any material fact;
→ A: Only if the judge of the court to which the case was
originally raffled is convinced that settlement is still 3) An absence of any issue; or
possible, the case may be referred to another court for
judicial dispute resolution. 4) Where the answer fails to tender an issue

NOTE: It shall be conducted within a non-extendible period of Judgment shall be Made:

fifteen (15) calendar days from notice of failure of the court-
annexed mediation. 1) Motu proprio

Q: Whose discretion is the conduct of JDR will depend? 2) Summarily or judgment on the pleadings
 3) No need of position paper or memoranda

4) Without prejudice to the filing by any of the parties of

a formal motion for judgment on the pleadings under
Rule 34 or summary judgment under Rule 35

Where that happens, the court shall render judgment within 90

calendar days from termination of the pre-trial.

M. Intervention (Rule 19)

Intervention – a remedy by which a third party, not originally

impleaded in the proceedings, becomes a litigant therein to
enable him to protect or preserve a right or interest which may
be affected by such proceedings.

Section 1. Who may intervene. — A person who has a legal

interest in the matter in litigation, or in the success of either of
the parties, or an interest against both, or is so situated as to be
adversely affected by a distribution or other disposition of
property in the custody of the court or of an officer thereof may,
with leave of court, be allowed to intervene in the action. The
court shall consider whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of the original
parties, and whether or not the intervenor’s rights may be fully
protected in a separate proceeding.