Service of Process
Summons and Complaint
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.
Service of a summons and complaint may be
effected within any judicial district in the United States subject to
constitutional and statutory restraints.
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
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;
U.S. Attorney's Office and District Court for
specific, authoritative guidance.