Rules 4(d) and (k) – Notice of Lawsuit & Request to Waive Service of Summons

     This page contains an unabridged, summarized version of these sections of Rule 4 of the Federal Rules of Civil Procedure, followed by a transcript of these sections of the rule.

Step 2: Send the Defendant a Notice of a Lawsuit form, two Waivers, & a self-addressed, stamped envelope via Certified Mail:

    On the Summons formthere is a PROOF OF SERVICE section on page 2 wherein the Person you select to Serve the Defendant must explain:

1.) Where they delivered the form.

2.) What their fee ($) for “travel expenses and cost for service” is.

    Because the Defendant has “a duty to avoid unnecessary expenses of serving the
Summons(see Rule 4(d)(1)), in order to offer the Defendant the opportunity to avoid paying the service fee, the Plaintiff should send the following, via certified mail (ask your local USPS employee), to each Defendant:

1.) One signed copy of “Notice of a Lawsuit and Request to Waive Service of a Summons- Form ao398”.

2.) Two copies of “Waiver of the Service of Summons- Form ao399 (“Waiver”).

3.) One copy of the Complaint.

4.) One stamped, self-addressed envelope or other prepaid means.

     The Notice of a Lawsuit and Request to Waive Service of a Summons Form ao398 includes a section which informs the Defendant(s) that they may sign one copy of the Waiver, & then return it using the stamped, self-addressed envelope (or other means) in order to waive the cost of Service fee.  The Notice of a Lawsuit and Request to Waive Service of a Summons Form ao398 also explains to the defendant that the second copy of the Waiver is included as a receipt for their records.  When the Plaintiff files a Waiver, proof of service is no longer required and these rules apply as if a Summons and Complaint had been served at the time of filing the Waiver. (Rule 4(d) through (m) explain this section)

Important Information Regarding Personal Jurisdiction:

     By filing the Waiver in order to “waive service of a summons“, a defendant does not waive any objection they may have to personal jurisdiction or to the venue the plaintiff has selected (the federal, state, local, or tribal courthouse).

     At the time a plaintiff files a waiver of service, personal jurisdiction is thereby established over a defendant:

(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;

(B) any third party defendant who becomes joined into the case (under Rule 14or Rule 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or

(C) when authorized by a federal statute.

(2) Federal Claim Outside State-Court Jurisdiction. For a claim that arises under federal law, filing a waiver of service establishes personal jurisdiction over a defendant if:

(A) the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction; and

(B) exercising jurisdiction is consistent with the United States Constitution and laws.

Forms Associated with Step 2:

Notice of a Lawsuit and Request to Waive Service of a Summons- Form ao398

(click here for the same form on UScourts.gov)

Waiver of the Service of Summons- Form ao399

(click here for the same form on UScourts.gov)

If the Defendant returns the Waiver in a timely manner:

    The Defendant does not need to serve an Answer to the Complaint until 60 days after the forms were sent to them– or 90 days if the Defendant is outside any judicial district of the United States. (explained in Rule 4(d)(3))

If the Defendant does not return the Waiver in a timely manner, go to Step 3.

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(d) Waiving Service.

(1) Requesting a Waiver. 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.  The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons.  The notice and request must:

(A) be in writing and be addressed:

(i) to the individual defendant; or (included in form)

(ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process; (included in form)

(B) name the court where the complaint was filed; (included in form)

(C) be accompanied by a copy of the complaint, 2 copies of the waiver form appended to this Rule 4, and a prepaid means for returning the form;

(D) inform the defendant, using the form appended to this Rule 4, of the consequences of waiving and not waiving service; (included in form)

(E) state the date when the request is sent; (included in form)

(F) give the defendant a reasonable time of at least 30 days after the request was sent–or at least 60 days if sent to the defendant outside any judicial district of the United States–to return the waiver; and (explained in form)

(G) be sent by first-class mail or other reliable means.

(2) Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant:

(A) the expenses later incurred in making service; and 

(B) the reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses.

(3) Time to Answer After a Waiver. A defendant who, before being served with process (the ‘Summons‘ form is the process in this case), timely returns a waiver need not serve an Answer to the Complaint until 60 days after the request was sent– or until 90 days after it was sent to the defendant outside any judicial district of the United States.

(4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver.

(5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.

(k) Territorial Limits of Effective Service.

(1) In General. Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:

(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;

(B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or

(C) when authorized by a federal statute.

(2) Federal Claim Outside State-Court Jurisdiction. For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if:

(A) the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction; and

(B) exercising jurisdiction is consistent with the United States Constitution and laws.

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