Service of Process

Summons:  Civil summons is a written notification to a party named in a lawsuit directing the party to appear and defend or answer before the issuing court prior to a specified time. Failure to appear or answer may allow judgment to be entered against the non-responsive party in favor of the plaintiff.

Complaint: A complaint is a statement of the jurisdiction of the court, the allegations constituting the cause of action, and a demand for judgment. This is the first or initial pleading on the part of the plaintiff.

Territorial Limits: Service of a summons and complaint may be effected within any judicial district in the United States subject to constitutional and statutory restraints.

Issued By: Upon presentation by the plaintiff, the summons is signed by the clerk of the court and issued to the plaintiff.

Served By: The summons and complaint may be served by any person who is not a party and is at least 18 years old. Service is effected by the U.S. Marshal only when specifically ordered by the court. In general, such court-ordered service will be limited to cases where the plaintiff is authorized by the court to proceed in forma pauperis, under 28 USC 1915, or as a seaman, under 28 USC 1916. However, in any case, the court has discretion to order service by the U.S. Marshal.

Service in Cases Brought by the United States: When the party seeking service is the United States, the U.S. Marshal is no longer required to effect service. The United States, like other civil litigants, is expected to use individuals who are at least 18 years old and not parties to serve its summons and complaints. Because service by the U.S. Marshal may continue to be appropriate in certain cases, the Marshal will normally consult with the U.S. attorney about whether the former should continue to effect service of a summons and complaint on behalf of the United States.

Waiver of Service: It is the responsibility of the defendant to avoid the unnecessary costs of serving a summons and complaint; therefore, he or she may waive formal service of process by the plaintiff. If the defendant fails to waive formal service, he or she may have to pay the costs of obtaining formal service of process on him or her.

For a waiver, the plaintiff must send to the defendant two copies of a Notice of Lawsuit and Request for Waiver of Service of Summons form along with a copy of a Waiver of Summons form, the complaint, and a self-addressed, stamped envelope for the return of the Waiver of Summons. The plaintiff may obtain the forms from the clerk of the court and may send the notice of waiver, request for waiver form, and complaint to the defendant by any reliable means, including mail, messenger or fax. The defendant is allowed a reasonable time to return the waiver–at least 30 days from the date on which the request for waiver is sent. If the defendant returns the waiver in a timely fashion (within 30 days if addressed within the United States, 60 days if addressed abroad), he or she is not required to answer the complaint until 60 days (90 days if addressed abroad) after the date on which the plaintiff sent the request for waiver and complaint. If the defendant waives service of a summons, he or she still preserves the right to object to venue or personal jurisdiction. If the defendant fails to return the request for waiver in a timely fashion, the plaintiff must request the issuance of a summons and effect formal service on the defendant. The costs incurred in effecting formal service will be charged to the defendant unless the defendant demonstrates good cause for his or her failure to waive service. The waiver provision does not apply to several classes of defendants, and these defendants are not expected to waive service of a summons. The defendants are infants and incompetent persons; foreign, state and local governments; and the United States, its agencies, corporations and officers. Consequently, these defendants must be served with the summons and complaint.    

Note:  The information related to the service of court process that is contained on this web site is general information and not intended to be an exhaustive or definitive explanation or depiction of Federal rules of procedures for the service of process.  Readers are directed to the Federal Rules of Criminal and Civil Procedure; personal legal counsel; the United States Code, Titles 18 and 28; their local U.S. Attorney's Office and District Court for specific, authoritative guidance.