Service of process: who may serve, methods for individuals and corporations, waiver, and the 90-day limit (Rule 4)

Black-letter propositions

1. 01

   A summons must be served with a copy of the complaint, and the plaintiff is responsible for having them served within the time allowed by Rule 4(m).

2. 02

   Any person who is at least 18 years old and not a party may serve a summons and complaint.

3. 03

   An individual in a judicial district of the United States may be served by following state law for serving a summons where the district court sits or where service is made, or by delivering the summons and complaint personally, by leaving them at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there, or by delivering them to an authorized agent.

4. 04

   A domestic or foreign corporation, partnership, or association subject to suit under a common name must be served in the manner for an individual under state law, or by delivering the summons and complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service.

5. 05

   If a defendant is not served within 90 days after the complaint is filed, the court, on motion or on its own after notice, must dismiss without prejudice as to that defendant or order that service be made within a specified time, and it must extend the time if the plaintiff shows good cause.

6. 06

   The 90-day limit does not apply to service in a foreign country under Rule 4(f), Rule 4(h)(2), or Rule 4(j)(1).

7. 07

   A plaintiff may request that a defendant waive service by sending a written request that gives the defendant a reasonable time of at least 30 days after the request was sent, or at least 60 days if sent outside any judicial district of the United States, to return the waiver.

8. 08

   A defendant located in the United States who fails without good cause to sign and return a requested waiver must pay the expenses of later service, and a defendant who timely returns a waiver need not answer until 60 days after the request was sent, or 90 days if it was sent outside any judicial district.

9. 09

   When the plaintiff files a waiver, proof of service is not required and the rules apply as if a summons and complaint had been served at the time of filing the waiver.

10. 10

    Serving a summons or filing a waiver establishes personal jurisdiction over a defendant who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.

Use this attack sequence under time

Common wrong turns

• A party cannot serve the summons and complaint, even a plaintiff who is willing.
• Leaving papers at a defendant's abode works only if left with a resident of suitable age and discretion.
• The 90-day clock does not apply to service in a foreign country under the listed provisions.
• A waiver gives the defendant 60 days from the date the request was sent, not from the date of the waiver.

Worked example

A plaintiff files a complaint on March 1 and asks a friend who is a party to a related case to hand the papers to the defendant, an individual who lives in the same state. The friend leaves them with a neighbor.

Practice this topic

Who serves and how

Rule 4(c) provides that a summons must be served with a copy of the complaint, that the plaintiff is responsible for having them served within the time in Rule 4(m), and that any person who is at least 18 years old and not a party may serve them.

Rule 4(e) provides that an individual, other than a minor, an incompetent person, or a person whose waiver has been filed, may be served in a judicial district of the United States by following state law for serving a summons in the state where the district court is located or where service is made, or by delivering a copy to the individual personally, leaving a copy at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there, or delivering a copy to an authorized agent.

Rule 4(h)(1) provides that a domestic or foreign corporation, partnership, or association subject to suit under a common name must be served in the manner prescribed by Rule 4(e)(1) or by delivering a copy to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service and, if the statute requires, by also mailing a copy.

Time limit and waiver

Rule 4(m) provides that if a defendant is not served within 90 days after the complaint is filed the court must dismiss the action without prejudice as to that defendant or order that service be made within a specified time, and that it must extend the time for an appropriate period if the plaintiff shows good cause, and the subdivision does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1).

Rule 4(d) provides that the plaintiff may request that a defendant waive service by a written request that gives the defendant at least 30 days after the request was sent, or 60 days if sent outside any judicial district of the United States, to return the waiver, that a defendant in the United States who fails without good cause to return a requested waiver must pay the expenses of service, and that a defendant who timely returns a waiver need not answer until 60 days after the request was sent, or 90 days if it was sent outside any judicial district of the United States.

Effect of service

Rule 4(d)(4) provides that when the plaintiff files a waiver, proof of service is not required and the rules apply as if a summons and complaint had been served at the time of filing the waiver.

Rule 4(k)(1)(A) provides that serving a summons or filing a waiver establishes personal jurisdiction over a defendant who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.

Frequently asked questions