A notice of lawsuit and request for waiver of service of a summons under Rule 4(d) is the topic of this blog post. Rule 4(d) refers to subdivision (d) of Federal Rule of Civil Procedure 4. This subdivision imposes a duty on any defendant who is an individual that is not a minor or incompetent, a corporation or association to avoid the unnecessary expenses of serving the summons.
There are advantages to both the plaintiff and the defendant being served with the use of a notice of lawsuit and request for waiver of service of a summons in that the plaintiff avoids the time and expense of issuing and serving the summons and complaint and the defendant is allowed 60 days after the request for a waiver is sent to respond to the summons and complaint. This is substantially longer than the 21 days allowed under Rule 12(a)(1)(A)(i). And the defendant is still entitled to raise all defenses or objections to the lawsuit, the court’s jurisdiction, and the venue of the action.
However there are disadvantages to the use of a Rule 4(d) notice which are listed near the end of this blog post.
Rule 4(d) states that,
“(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
(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;
(B) name the court where the complaint was filed;
(C) be accompanied by a copy of the complaint, 2 copies of a waiver form, and a prepaid means for returning the form;
(D) inform the defendant, using text prescribed in Form 5, of the consequences of waiving and not waiving service;
(E) state the date when the request is sent;
(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
(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, 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.”
The main disadvantage to the plaintiff with the use of a notice of lawsuit and request for waiver of service of a summons is that the plaintiff assumes the risk that the defendant may not actually receive the notice and request for waiver or that they will not comply and sign and return the waiver.
The main disadvantage to the defendant being served is that they waive any objections that no summons was served, or that the service was defective in any way.
Attorneys or parties who would like to view or download a 5 page sample notice of lawsuit and request for waiver of service containing brief instructions as well as a sample waiver of the service of a summons containing all required statutory language created by the author can see below.
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.
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Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.