Waiver of Service

Rule 4(d) lets a plaintiff replace formal service with a signature. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons, and the plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons.¹ If the defendant signs and returns the waiver form, the plaintiff need not serve that defendant at all. The arrangement is now so routine that in the federal courts it has largely replaced the traditional forms of service.²

The operative word is request. A defendant has no obligation to respond, and when no answer comes the plaintiff must achieve timely service by whatever formal means the rest of Rule 4 authorizes.³ Rule 4(m) keeps running in the meantime: the court must dismiss the action, or order service within a specified time, if service is not made within 90 days after filing.⁴

Two different things are called waiver in this chapter, and students often confuse them. Waiver of service under Rule 4(d) is an agreement: at the plaintiff's request, the defendant dispenses with formal delivery of the summons before answering. Waiver by omission, taken up near the end of the chapter, is a forfeiture: a defendant who leaves insufficient service of process, or another defense listed in Rule 12(b)(2)–(5), out of the right motion or pleading loses it, whatever the defendant intended.⁵ The sections below follow a Rule 4(d) waiver from start to finish: the request, the price of refusing it, the extra time a signing defendant receives, what the signature leaves intact, and the effect of filing the signed form.

Requesting a Waiver

A request is proper only if the package holds every item Rule 4(d)(1) lists.⁶ The list is long because the defendant is asked to give up formal delivery of the summons: the plaintiff must say what is being surrendered, what refusal risks, and how to accept at no cost. The package also decides the plaintiff's remedy. A defendant in the United States who refuses a proper request may be made to bear the cost of formal service, and that consequence rests on the plaintiff's having asked in the way the rule prescribes.⁷

Exam Analysis Steps

Check the package against the rule item by item, because one missing item makes the request improper. The steps are these:

Confirm that the request is in writing and is addressed to the individual defendant or, for an entity subject to service under Rule 4(h), to an officer, a managing or general agent, or another agent authorized by appointment or by law to receive service of process.⁸
Confirm that it names the court where the complaint was filed.⁹
Confirm that it comes with a copy of the complaint, two copies of the waiver form appended to Rule 4, and a prepaid means for returning the form.¹⁰
Confirm that it informs the defendant, using the appended form, of the consequences of waiving and of not waiving service.¹¹
Confirm that it states the date on which the request was sent.¹²
Confirm that it gives the defendant a reasonable time to return the form, at least 30 days.¹³
Confirm that it was sent by first-class mail or other reliable means.¹⁴

Hypothetical Illustration

Greaves sues Northgate Shipping, Inc. and mails the company's vice president of operations a written request that names the court, encloses a copy of the complaint, two waiver forms, and a stamped return envelope, explains the consequences of waiving and of not waiving, states the date sent, and allows 45 days to respond. The addressee is an officer and every other item is present, so the request is proper. Ostrander sues Pelham Freight, Inc. and mails a package with identical enclosures, but addresses it to the receptionist at the front desk. A receptionist is not an officer, a managing or general agent, or an agent authorized by appointment or by law to receive service of process, so Ostrander's request fails the addressing requirement even though nothing else in the package is wrong.

Two features of the list set a waiver request apart from formal service. The package calls for a copy of the complaint, two copies of the waiver form, and a prepaid means of return, and it does not call for a summons.¹⁵ The request must also state the date it was sent, because a waiving defendant's time to answer runs from that date, as the section on extra time explains.¹⁶

A gap in the package can cost the plaintiff its remedy. In Mason Tenders District Council Pension Fund v. Messera, a district court found good cause to deny costs of formal service because the waiver request omitted a self-addressed stamped envelope.¹⁷ The omission gave the defendant a legitimate reason for not returning the form, and that reason defeated the cost shifting a complete request would have supported. A plaintiff who checks the package against the whole list before mailing leaves the defendant no such excuse.

The Cost of Refusing

A defendant who ignores a proper request pays for the choice. Rule 4(d)(1) gives every defendant subject to service under Rule 4(e), (f), or (h) a duty to avoid unnecessary expenses of serving the summons,¹⁹ and Rule 4(d)(2) backs that duty with a sanction: if the defendant fails without good cause to return the waiver, the court must impose on the defendant the expenses later incurred in making service, along with the plaintiff's legal expenses.²⁰ The verb is must. Once the plaintiff shows a proper request and no returned form, the open questions are whether the defendant is located in the United States and whether the defendant has good cause.

The shift has two parts and a limit. The defendant bears the costs later incurred in effecting service, such as a process server's fee, and the reasonable expenses, including attorney's fees, of any motion the plaintiff must make to collect them, but not the attorney's fees incurred in the process of effecting service itself.²¹ The sanction covers the extra step the refusal created and leaves the rest of the litigation budget with the party that incurred it. A defendant remains free to decline, because no defendant is obliged to respond to a request; the rule only moves the cost of declining to the defendant.

A cost order does not replace service. The defendant who refuses is still not before the court, so the plaintiff must deliver the papers by a formal method. In the practice problem built around Donne, once Donne fails to return the waiver, the plaintiff must serve him through one of the regular methods in Rule 4(e); the court may impose costs on Donne for his non-compliance under Rule 4(d)(2), but Donne still must be served in order to be properly brought before the court.²² The same is true when Alice, counsel for the plaintiff Chang, mails Fuentes a complete request that draws no reply. Alice must now serve Fuentes formally, and Fuentes is exposed to the cost of that service. Rule 4(m) has been running since the complaint was filed, so Alice moves promptly.

Good cause is the safety valve, and it protects the defendant who had no real chance to avoid the expense. The Mason Tenders court found it where the request omitted a return envelope. In Henry v. Glaize Maryland Orchards, Inc., a court held that good cause exists to avoid process-serving fees when the defendant never actually receives the summons and complaint by mail.²³ A defendant whose request was incomplete or never arrived could not have avoided the expense by signing, so charging that defendant would penalize the plaintiff's drafting error or the mail's failure. Fuentes received everything the rule requires, and he pays unless he points to an excuse the facts do not supply.

The sanction reaches only defendants located in the United States. Rule 4(d)(1) extends the duty to defendants subject to service under Rule 4(f), so a defendant abroad may be asked to waive, but the threat of shifted costs does not follow the request overseas.²⁴

Exam Analysis Steps

The cost sanction turns on facts that a problem may mention only in passing, so ask these questions in order after the defendant stays silent. The steps are these:

Confirm that the plaintiff's request was complete and actually reached the defendant, since an incomplete or undelivered request gives the defendant an excuse for not returning the form.
Ask whether the defendant is located in the United States, because the cost-shifting sanction reaches only those defendants.
Ask whether the defendant can show any other good cause, and if none appears, treat the order for service expenses and collection-motion expenses as required.
Treat the cost order as a separate consequence, so the plaintiff must still complete formal service under Rule 4(e) or the subdivision that fits the defendant.

Extra Time to Answer

A defendant who waives service gets 60 days to answer, not 21. Rule 12(a)(1)(A)(i) ordinarily requires an answer within 21 days after the defendant is served with the summons and complaint.²⁶ A waiving defendant is never formally served, so that period has nothing to run from, and Rule 4(d)(3) substitutes a longer one: the defendant need not respond until 60 days after the request was sent, or 90 days if the request went to a defendant outside the United States.²⁷

The extra time is the reward in a bargain. The rule encourages waiver by giving the waiving defendant additional time to respond and by threatening defendants in the United States who refuse with the cost of formal service.²⁸ Because a waiver also leaves any objection to personal jurisdiction or venue intact, the defendant pays little for the additional time, as the next section explains.²⁹

The count runs from the date the request was sent, not from the date the defendant returns the form.³⁰ Under the opposite rule, a defendant could push the answer date back one day for every day spent holding the form. Anchoring the count to the mailing date charges every day the defendant takes to sign against the defendant's own window, which is also why the request must state the date it was sent. Even a defendant who waits the full 30-day return period still has 30 days left to answer.

Hypothetical Illustration

A plaintiff mails a complete, proper waiver request on June 1 to two individual defendants in the United States. Kowalski signs and returns the form on June 12. Abernathy ignores the request and is handed the summons and complaint by a process server on June 20. Kowalski's answer is due 60 days after June 1, which is July 31, and the June 12 return date does not move it. Abernathy's answer is due 21 days after the June 20 service, which is July 11. The defendant who waived therefore has twenty more days, even though Kowalski took eleven days to sign. Abernathy also faces an order to pay the expenses of formal service unless good cause is shown. Had the same June 1 request gone to a defendant outside the United States who waived, the answer would have been due 90 days after June 1, which is August 30.

Three miscounts recur. Counting the 60 days from the day the defendant signs, or from the day the plaintiff files the form, hands the defendant days the rule withholds. Applying the 21-day period to a defendant who waived ignores the reward the rule promises. And giving the longer period to a defendant who ignored the request is wrong, because the extra time belongs to the defendant who waives; one who lets the request lapse and is later served formally has 21 days after that service.³¹

What Waiver Preserves

Signing a waiver surrenders formal delivery of the summons and nothing more. The request asks the defendant to waive service of a summons,³³ and Rule 4(d)(5) confirms that a defendant who does so does not thereby waive any objection to venue or to the court's personal jurisdiction over the defendant.³⁴

Service and personal jurisdiction answer different questions, which is why the line falls there. Service concerns whether the defendant has been formally brought under the court's command to respond; personal jurisdiction concerns whether the court has power over this defendant at all. Notice and a basis for jurisdiction are constitutional requirements, and even when both are met the statutory requirements for service must still be satisfied.³⁵ A defendant who agrees to skip the paperwork of service has therefore addressed the statutory requirement and nothing else.

The design of the scheme points to the same line. The rule persuades defendants to sign by offering extra time to answer and by threatening the cost of formal service to a defendant in the United States who refuses.³⁶ If signing also surrendered the objection that the court lacks power over the defendant, the defendants with the strongest objections would have every reason to refuse, and the device would fail with the defendants most likely to resist. Preserving the objections makes the form safe to sign.

Venue, the question whether the plaintiff sued in a proper district, stands on the same footing, so a defendant who signs keeps the objection that the suit was brought in the wrong place.³⁷ Both objections survive because each is a separate defense on the menu Rule 12 provides, alongside lack of subject matter jurisdiction, insufficient process, and insufficient service of process.³⁸ A waiver addresses the manner of delivery, which is what the service defense tests, and leaves untouched the defenses that concern the court's power and the place of suit. Preserved does not mean permanent: each surviving objection must still be raised in the way and at the time Rule 12 requires, a subject taken up in the final part of this chapter.

Students who bring an everyday meaning of the phrase to this rule overstate what the defendant gives up. Some general definitions treat waiver of service as a defendant's voluntary submission to the court's jurisdiction, made by acknowledging receipt of the petition and stating that all further service is waived.³⁹ The federal rule is narrower. It treats the waiver as an agreement about delivery of the summons and leaves open whether the court has power over the defendant.⁴⁰ An answer that says Okonkwo submitted to the Georgia court by returning the form reaches the wrong result for exactly that reason.

The defendant does give up one thing: a complaint about the manner of delivery. A Rule 12(b)(5) motion asserts insufficient service of process, an objection that assumes someone attempted formal service and did it wrongly.⁴¹ A defendant who waived has agreed to dispense with formal service, so no delivery exists to criticize.⁴²

Read any fact pattern that mentions a returned waiver for the objection the defendant is making. An objection to the manner of delivery is gone once the defendant signs, while an objection to the court's power over the defendant or to the venue of the suit survives, and an answer that confuses the two loses points in one direction or the other.

Filing the Waiver

Rule 4(d)(4) fixes the date on which a waiver counts as service: when the defendant returns the waiver and the plaintiff files it with the court, the action proceeds as if a summons and complaint had been served on the filing date.⁴⁴ A waiver involves no process server, so the rule supplies the moment the defendant is treated as served, and it picks the day the plaintiff files the signed form. The defendant's mere receipt of the request does not do the work; the filing does.⁴⁵ Nor does mailing the request, which does not toll the limitations period.⁴⁶

The filing-date rule matters only where the law governing the limitations period treats service as the event that satisfies it. In some states the date for deciding whether the statute of limitations has been satisfied runs from service on the defendant, not from the filing of the complaint, as in Walker v. Armco, 446 U.S. 740 (1980), which applied Oklahoma law.⁴⁷ A federal-question suit works differently. The date the complaint is filed is what counts for limitations, while in a diversity suit commencement for limitations purposes depends on how state law defines it.⁴⁸

Suppose Alice, counsel for the plaintiff Chang, is working in a state of the first kind. The limitations period on Chang's tort claim expires on January 6, and the events run in this order:

On January 1, Alice mails Fuentes a complete waiver request, with the complaint, two waiver forms, and a stamped return envelope.
On January 4, Fuentes receives the package, two days before the period expires.
On January 24, Fuentes returns the signed form.
On January 26, Alice files the form with the court.

Rule 4(d)(4) treats Fuentes as served on January 26, twenty days after the period expired, so when Fuentes pleads the statute of limitations the court should accept the defense and dismiss the claim.⁴⁹ Fuentes held the papers two days before the deadline, yet that receipt counts for nothing. Only the filing of the waiver completes service by waiver.

The problem also shows how little of the timetable the plaintiff controls. The defendant decides when, and whether, the form comes back, and a proper request gives the defendant at least 30 days to decide.⁵⁰ A plaintiff who files suit shortly before the limitations period expires should therefore not use the waiver procedure, since the form may not come back for at least 30 days, or at all, and mailing it does not toll the period.⁵¹ Unless there is ample time, the plaintiff should proceed directly to the formal methods of service in Rule 4.⁵²

The danger disappears when the filing of the complaint is the limitations event.

One waiver therefore produces two separate dates. The date the request was sent starts the defendant's 60 days to answer, and the date the plaintiff files the returned form is the date service is deemed made.⁵³ A fact pattern that pairs a waiver with an approaching limitations deadline calls for two checks: whether the governing law treats service, rather than the filing of the complaint, as the event that satisfies the statute, and on what date the returned waiver reached the court's file.