Service Basics

Proper Service and Waiver

In the strict sense this chapter uses, service of process means delivering to the defendant the initial notice that a lawsuit has been filed.¹ The looser usage also reaches subpoenas, writs, and other orders served on parties or witnesses during litigation, but those papers are not our subject.² Rule 4 of the Federal Rules of Civil Procedure governs the strict sense in detail. It specifies what documents must be served (Rule 4(c)(1)), what the summons must contain (Rule 4(a)), how the papers must be delivered (Rule 4(e)–(j)), when they must be delivered (Rule 4(m)), who must deliver them (Rule 4(c)(2)), and how the defendant may waive formal service (Rule 4(d)).³

The Constitution sets only a floor beneath those rules. Mullane v. Central Hanover Bank & Trust Co. states the floor: due process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”⁴ That standard fixes the goal and leaves the method to Rule 4. Notice and a valid basis for jurisdiction are both constitutional requirements, and service is a third, distinct one: a plaintiff who satisfies the first two must still satisfy the statutory requirements for service of process.⁵ A defendant’s actual awareness of the suit therefore bears on notice, but it does not settle whether the plaintiff followed Rule 4.

Three later questions all assume that the plaintiff delivered the right papers on time. Who may deliver them? Rule 4(c)(2) permits any person who is at least 18 years old and not a party.⁶ May the plaintiff ask the defendant to skip formal service? Rule 4(d) allows the request, because a defendant subject to service has a duty to avoid unnecessary expenses of serving the summons.⁷ How does a defendant attack a defective delivery? By asserting insufficient service of process, a defense listed in Rule 12(b)(5).⁸ This unit examines the assumption itself: what the plaintiff must deliver, and by when.

Summons and Complaint Together

Rule 4(c)(1) requires two papers for every service: a summons and a copy of the complaint. The plaintiff is responsible for having both served within the time Rule 4(m) allows, and must furnish the necessary copies to whoever makes service.⁹

The two papers do different work. The complaint is the plaintiff’s introductory pleading. It states the nature of the case and the relief sought, and it informs the defendant of the events behind the claim.¹⁰ The summons is an official order of the court, commanding the defendant to appear and defend the action or suffer default.¹¹ A plaintiff can write a complaint but cannot compel anyone to answer it. The court holds that authority, and the summons is the instrument through which the court uses it.¹² The complaint tells the defendant what is claimed; the summons tells the defendant that the court requires a response.

Rule 4(a) writes the court’s authority into the document itself. A summons must be signed by the clerk and bear the court’s seal.¹³ It must also identify the court and the parties, name the plaintiff’s attorney, state the time within which the defendant must respond,¹⁴ and warn that a failure to appear and defend will result in a default judgment for the relief demanded in the complaint.¹⁵ The plaintiff obtains the summons from the clerk. On or after filing the complaint, the plaintiff presents a summons, and if it is properly completed the clerk must sign, seal, and issue it back to the plaintiff for service. A summons, or a copy of one addressed to several defendants, must be issued for each defendant to be served.¹⁶

Because the plaintiff arranges delivery, the plaintiff carries any shortfall in what is delivered. The plaintiff’s lawyer could serve the papers, but more likely the lawyer hires a private process server or uses a sheriff or deputy authorized to serve process,¹⁷ and that person can deliver only what the plaintiff supplies.

Delivering one paper without the other is the plainest failure. A server who hands the defendant the complaint alone has not served the defendant, because Rule 4(c)(1) requires the summons too.¹⁸ The defendant learns what is claimed but receives no court order to answer and no default warning. That defendant may raise insufficient service of process.¹⁹ The same logic applies when several defendants are sued, because a summons issues for each one and each must be served.

A fact pattern that says the server “delivered the papers” calls for a closer look at which papers reached which defendant. A complaint without a summons fails, and so does a second set handed to the wrong person, leaving Hollis not served at all.

Time Limit for Service

The plaintiff must also serve on time. Rule 4(m) requires service within 90 days after the complaint is filed, and when that period runs out the court must either dismiss the action or order that service be made within a specified time.²¹ The plaintiff bears responsibility for meeting the deadline,²² and the period begins at filing, the same moment the plaintiff can first present a summons to the clerk.²³

What the court does about a missed deadline depends on why service was late. If the plaintiff shows good cause, the court must extend the time for an appropriate period.²⁴ If the plaintiff shows none, the court keeps its discretion: it may extend the time anyway, order service by a specified date, or dismiss the action.²⁵ A dismissal for late service does not bar a new action, so it is without prejudice, but the plaintiff must pay a new filing fee and risks a statute-of-limitations problem in refiling.²⁶

Two separate clocks run against a plaintiff. The statute of limitations limits how long the plaintiff has to bring the claim; Rule 4(m) limits how long the plaintiff has to deliver the complaint once it is filed. Meeting the first does not meet the second. The clocks collide at the remedy, because a dismissal for late service forces a new filing, and the refiled suit may find the limitations period already gone.²⁷

When an exam stresses that the complaint was filed on time, it is describing only one clock. Ask next when the defendant was served and whether the plaintiff can explain any delay beyond 90 days. A plaintiff with no explanation is relying on the court’s discretion.