Until the other side has been properly "served," the judge cannot make any permanent orders or judgments. Note: If you hire a process server, give them a photo of the person they have to serve if you have one and a list of times and places when it will be easy to find that person. Look for a process server who is close to where the other side lives or works. Fees are often based on how far the server has to travel.
So this will save you money. There are several ways to serve papers. The information here about the types of service is general. Not all of them are allowed in all cases, or at all stages of a case.
So, for your type of case, only some of these types of service may be allowed. The individual sections on this Online Self-Help Center will tell you what types of service are allowed in your case. Service can be complicated and it is VERY important. If it is not done right, you will not be able to move forward with your case. Click for help finding a lawyer. Personal Service "Personal service" means that someone — NOT a party to the case — must personally deliver the court documents to the other side.
Also because it is so reliable, it is generally required when serving the first papers the petition or complaint in a case. Service by Mail In "service by mail," someone — NOT a party to the case — must mail the documents to the other party.
Make sure service by mail is allowed before you use this method to serve your papers. Mail service is easy but not very reliable because the court cannot know for sure that someone received the paperwork. Substituted Service Substituted service is used after several attempts to personally serve the papers have failed. NOTE: Sometimes, like in small claims cases, you can use substituted service the first time the server tries to serve the papers in person and the other party is not at home or work.
Service by Notice and Acknowledgement of Receipt. When the other side agrees to be served by mail and is willing to sign a document for the court saying that they received the papers, you can usually use this method. Service by posting on the premises and mailing for eviction cases ONLY In eviction unlawful detainer cases only, a summons and complaint can be served by posting on the premises at issue in the eviction and also mailing.
Service by posting and mailing is used after several attempts to personally serve the papers have failed. A landlord needs the court's permission to serve his or her tenant by posting and mailing. It is usually used when you do not know how to find the other side and do not have an address or workplace for him or her. Before the court will give you permission to serve by publication, you will have to prove to the court that you tried as hard as possible to find the other side.
Before the court will give you permission to serve by posting, you will have to prove to the court that you tried as hard as possible to find the other side. Service by certified mail small claims ONLY Only the small claims court clerk can serve your claim this way.
You should check back with the court before the hearing to see if the receipt for certified mail was returned to the court.
Service by certified mail is complete on the day the certified mail receipt is signed. Service by certified mail for a party who is out of state When the party that has to be served lives out of state, papers can usually be served by sending a copy of the paperwork to be served to that party by first-class mail, postage prepaid, and return receipt requested.
The person who mails the papers must be at least 18 and NOT a party to the case. The server must complete a Proof of Service indicating how the papers were served. Service by certified mail is complete on the 10th day after mailing of the papers.
The process for serving someone outside the U. Service on someone who lives out of the country If you need to serve someone who is not in the United States, you may have to use the process set out under the Hague Convention. For example, if you are filing for divorce and your spouse is living in Mexico, you will have to use the Hague Convention to serve him with divorce papers.
The process is complicated. Your court's family law facilitator or self-help center may be able to help you. Or talk to a lawyer. Filling Out and Filing the Proof of Service The court must know that the other side was properly served. To do this, the process server must carefully fill out and sign the Proof of Service detailing how service was done, on whom, where, and when.
The process server then gives you the Proof of Service. Make a copy of the Proof of Service. Take the original and copy to your court clerk right away to file it. When you sue a person, you file your lawsuit against that person, using his or her legal name and any aliases. Often, it is easy to get this information if you do not already have it, by looking at any documentation you may have about the legal dispute.
But, sometimes, this information is not easily available to you. Below are some ways to track someone down.
If you do not know if a person is in state or federal prison or county jail, search for the person in state and federal prison and the counties where you think the person might be incarcerated. Be creative!!! You do not need to know where someone lives or works in order to serve him or her with legal papers. You only need to find the person to give him or her your legal papers through a server. The more you know about someone and his or her habits or the places he or she frequents, the easier it will be to figure out a good way to serve him or her with legal papers.
You may also make a plan to meet the person somewhere and then have a server with you to give him or her the paperwork when you meet up. You can also hire a private investigator to help you find someone.
Skip to main content Skip to topics menu Skip to topics menu. The general purpose of this revision is to facilitate the service of the summons and complaint. The revised rule explicitly authorizes a means for service of the summons and complaint on any defendant. While the methods of service so authorized always provide appropriate notice to persons against whom claims are made, effective service under this rule does not assure that personal jurisdiction has been established over the defendant served.
First, the revised rule authorizes the use of any means of service provided by the law not only of the forum state, but also of the state in which a defendant is served, unless the defendant is a minor or incompetent. Second, the revised rule clarifies and enhances the cost-saving practice of securing the assent of the defendant to dispense with actual service of the summons and complaint. Defendants that magnify costs of service by requiring expensive service not necessary to achieve full notice of an action brought against them are required to bear the wasteful costs.
This provision is made available in actions against defendants who cannot be served in the districts in which the actions are brought. Third, the revision reduces the hazard of commencing an action against the United States or its officers, agencies, and corporations.
A party failing to effect service on all the offices of the United States as required by the rule is assured adequate time to cure defects in service. Fourth, the revision calls attention to the important effect of the Hague Convention and other treaties bearing on service of documents in foreign countries and favors the use of internationally agreed means of service.
In some respects, these treaties have facilitated service in foreign countries but are not fully known to the bar. Finally, the revised rule extends the reach of federal courts to impose jurisdiction over the person of all defendants against whom federal law claims are made and who can be constitutionally subjected to the jurisdiction of the courts of the United States.
The present territorial limits on the effectiveness of service to subject a defendant to the jurisdiction of the court over the defendant's person are retained for all actions in which there is a state in which personal jurisdiction can be asserted consistently with state law and the Fourteenth Amendment. A new provision enables district courts to exercise jurisdiction, if permissible under the Constitution and not precluded by statute, when a federal claim is made against a defendant not subject to the jurisdiction of any single state.
The revised rule is reorganized to make its provisions more accessible to those not familiar with all of them. Additional subdivisions in this rule allow for more captions; several overlaps among subdivisions are eliminated; and several disconnected provisions are removed, to be relocated in a new Rule 4. The Caption of the Rule. Service of process in eminent domain proceedings is governed by Rule 71A.
Service of a subpoena is governed by Rule 45 , and service of papers such as orders, motions, notices, pleadings, and other documents is governed by Rule 5. Unless service of the summons is waived, a summons must be served whenever a person is joined as a party against whom a claim is made.
Those few provisions of the former rule which relate specifically to service of process other than a summons are relocated in Rule 4. Revised subdivision a contains most of the language of the former subdivision b. The second sentence of the former subdivision b has been stricken, so that the federal court summons will be the same in all cases. Few states now employ distinctive requirements of form for a summons and the applicability of such a requirement in federal court can only serve as a trap for an unwary party or attorney.
A sentence is added to this subdivision authorizing an amendment of a summons. This sentence replaces the rarely used former subdivision 4 h. Revised subdivision b replaces the former subdivision a.
The revised text makes clear that the responsibility for filling in the summons falls on the plaintiff, not the clerk of the court. If there are multiple defendants, the plaintiff may secure issuance of a summons for each defendant, or may serve copies of a single original bearing the names of multiple defendants if the addressee of the summons is effectively identified.
Paragraph 1 of revised subdivision c retains language from the former subdivision d 1. Paragraph 2 retains language from the former subdivision a , and adds an appropriate caution regarding the time limit for service set forth in subdivision m. Subdivision c eliminates the requirement for service by the marshal's office in actions in which the party seeking service is the United States. The United States, like other civil litigants, is now permitted to designate any person who is 18 years of age and not a party to serve its summons.
The court remains obligated to appoint a marshal, a deputy, or some other person to effect service of a summons in two classes of cases specified by statute: actions brought in forma pauperis or by a seaman.
The court also retains discretion to appoint a process server on motion of a party. If a law enforcement presence appears to be necessary or advisable to keep the peace, the court should appoint a marshal or deputy or other official person to make the service. The Department of Justice may also call upon the Marshals Service to perform services in actions brought by the United States. Subdivision d. This text is new, but is substantially derived from the former subdivisions c 2 C and D , added to the rule by Congress in The aims of the provision are to eliminate the costs of service of a summons on many parties and to foster cooperation among adversaries and counsel.
The rule operates to impose upon the defendant those costs that could have been avoided if the defendant had cooperated reasonably in the manner prescribed. This device is useful in dealing with defendants who are furtive, who reside in places not easily reached by process servers, or who are outside the United States and can be served only at substantial and unnecessary expense.
Illustratively, there is no useful purpose achieved by requiring a plaintiff to comply with all the formalities of service in a foreign country, including costs of translation, when suing a defendant manufacturer, fluent in English, whose products are widely distributed in the United States.
See Bankston v. Toyota Motor Corp. The former text described this process as service-by-mail. This language misled some plaintiffs into thinking that service could be effected by mail without the affirmative cooperation of the defendant. Mayo Foundation , F. It is more accurate to describe the communication sent to the defendant as a request for a waiver of formal service. The request for waiver of service may be sent only to defendants subject to service under subdivision e , f , or h.
The United States is not expected to waive service for the reason that its mail receiving facilities are inadequate to assure that the notice is actually received by the correct person in the Department of Justice. The same principle is applied to agencies, corporations, and officers of the United States and to other governments and entities subject to service under subdivision j.
Moreover, there are policy reasons why governmental entities should not be confronted with the potential for bearing costs of service in cases in which they ultimately prevail. Infants or incompetent persons likewise are not called upon to waive service because, due to their presumed inability to understand the request and its consequences, they must generally be served through fiduciaries.
See 1 R. Casad, Jurisdiction in Civil Actions 2d Ed. But, as Professor Casad observed, there was no reason not to employ this device in an effort to obtain service outside the state, and there are many instances in which it was in fact so used, with respect both to defendants within the United States and to defendants in other countries. The opportunity for waiver has distinct advantages to a foreign defendant.
By waiving service, the defendant can reduce the costs that may ultimately be taxed against it if unsuccessful in the lawsuit, including the sometimes substantial expense of translation that may be wholly unnecessary for defendants fluent in English.
Moreover, a foreign defendant that waives service is afforded substantially more time to defend against the action than if it had been formally served: under Rule 12 , a defendant ordinarily has only 20 days after service in which to file its answer or raise objections by motion, but by signing a waiver it is allowed 90 days after the date the request for waiver was mailed in which to submit its defenses.
Because of the additional time needed for mailing and the unreliability of some foreign mail services, a period of 60 days rather than the 30 days required for domestic transmissions is provided for a return of a waiver sent to a foreign country.
Unless the addressee consents, receipt of the request under the revised rule does not give rise to any obligation to answer the lawsuit, does not provide a basis for default judgment, and does not suspend the statute of limitations in those states where the period continues to run until service.
Nor are there any adverse consequences to a foreign defendant, since the provisions for shifting the expense of service to a defendant that declines to waive service apply only if the plaintiff and defendant are both located in the United States. With respect to a defendant located in a foreign country like the United Kingdom, which accepts documents in English, whose Central Authority acts promptly in effecting service, and whose policies discourage its residents from waiving formal service, there will be little reason for a plaintiff to send the notice and request under subdivision d rather than use convention methods.
On the other hand, the procedure offers significant potential benefits to a plaintiff when suing a defendant that, though fluent in English, is located in a country where, as a condition to formal service under a convention, documents must be translated into another language or where formal service will be otherwise costly or time-consuming.
Paragraph 1 is explicit that a timely waiver of service of a summons does not prejudice the right of a defendant to object by means of a motion authorized by Rule 12 b 2 to the absence of jurisdiction over the defendant's person, or to assert other defenses that may be available.
The only issues eliminated are those involving the sufficiency of the summons or the sufficiency of the method by which it is served. Paragraph 2 states what the present rule implies: the defendant has a duty to avoid costs associated with the service of a summons not needed to inform the defendant regarding the commencement of an action.
The text of the rule also sets forth the requirements for a Notice and Request for Waiver sufficient to put the cost-shifting provision in place.
Paragraph 2 A is explicit that a request for waiver of service by a corporate defendant must be addressed to a person qualified to receive service.
The general mail rooms of large organizations cannot be required to identify the appropriate individual recipient for an institutional summons. Paragraph 2 B permits the use of alternatives to the United States mails in sending the Notice and Request. While private messenger services or electronic communications may be more expensive than the mail, they may be equally reliable and on occasion more convenient to the parties.
Especially with respect to transmissions to foreign countries, alternative means may be desirable, for in some countries facsimile transmission is the most efficient and economical means of communication. If electronic means such as facsimile transmission are employed, the sender should maintain a record of the transmission to assure proof of transmission if receipt is denied, but a party receiving such a transmission has a duty to cooperate and cannot avoid liability for the resulting cost of formal service if the transmission is prevented at the point of receipt.
A defendant failing to comply with a request for waiver shall be given an opportunity to show good cause for the failure, but sufficient cause should be rare. It is not a good cause for failure to waive service that the claim is unjust or that the court lacks jurisdiction.
Sufficient cause not to shift the cost of service would exist, however, if the defendant did not receive the request or was insufficiently literate in English to understand it. Paragraph 3 extends the time for answer if, before being served with process, the defendant waives formal service. The extension is intended to serve as an inducement to waive service and to assure that a defendant will not gain any delay by declining to waive service and thereby causing the additional time needed to effect service.
By waiving service, a defendant is not called upon to respond to the complaint until 60 days from the date the notice was sent to it—90 days if the notice was sent to a foreign country—rather than within the 20 day period from date of service specified in Rule Paragraph 4 clarifies the effective date of service when service is waived; the provision is needed to resolve an issue arising when applicable law requires service of process to toll the statute of limitations.
Elmira Country Club , F. The provisions in former subdivision c 2 C ii of this rule may have been misleading to some parties. Some plaintiffs, not reading the rule carefully, supposed that receipt by the defendant of the mailed complaint had the effect both of establishing the jurisdiction of the court over the defendant's person and of tolling the statute of limitations in actions in which service of the summons is required to toll the limitations period.
The revised rule is clear that, if the waiver is not returned and filed, the limitations period under such a law is not tolled and the action will not otherwise proceed until formal service of process is effected. Some state limitations laws may toll an otherwise applicable statute at the time when the defendant receives notice of the action.
Nevertheless, the device of requested waiver of service is not suitable if a limitations period which is about to expire is not tolled by filing the action. Unless there is ample time, the plaintiff should proceed directly to the formal methods for service identified in subdivisions e , f , or h. The procedure of requesting waiver of service should also not be used if the time for service under subdivision m will expire before the date on which the waiver must be returned.
While a plaintiff has been allowed additional time for service in that situation, e. Raymond Constr. It may be noted that the presumptive time limit for service under subdivision m does not apply to service in a foreign country. Paragraph 5 is a cost-shifting provision retained from the former rule.
The costs that may be imposed on the defendant could include, for example, the cost of the time of a process server required to make contact with a defendant residing in a guarded apartment house or residential development. The paragraph is explicit that the costs of enforcing the cost-shifting provision are themselves recoverable from a defendant who fails to return the waiver.
In the absence of such a provision, the purpose of the rule would be frustrated by the cost of its enforcement, which is likely to be high in relation to the small benefit secured by the plaintiff.
Some plaintiffs may send a notice and request for waiver and, without waiting for return of the waiver, also proceed with efforts to effect formal service on the defendant. To discourage this practice, the cost-shifting provisions in paragraphs 2 and 5 are limited to costs of effecting service incurred after the time expires for the defendant to return the waiver. Moreover, by returning the waiver within the time allowed and before being served with process, a defendant receives the benefit of the longer period for responding to the complaint afforded for waivers under paragraph 3.
This subdivision replaces former subdivisions c 2 C i and d 1. It provides a means for service of summons on individuals within a judicial district of the United States. Together with subdivision f , it provides for service on persons anywhere, subject to constitutional and statutory constraints. Service of the summons under this subdivision does not conclusively establish the jurisdiction of the court over the person of the defendant. A defendant may assert the territorial limits of the court's reach set forth in subdivision k , including the constitutional limitations that may be imposed by the Due Process Clause of the Fifth Amendment.
Paragraph 1 authorizes service in any judicial district in conformity with state law. This paragraph sets forth the language of former subdivision c 2 C i , which authorized the use of the law of the state in which the district court sits, but adds as an alternative the use of the law of the state in which the service is effected. Paragraph 2 retains the text of the former subdivision d 1 and authorizes the use of the familiar methods of personal or abode service or service on an authorized agent in any judicial district.
To conform to these provisions, the former subdivision e bearing on proceedings against parties not found within the state is stricken. Likewise stricken is the first sentence of the former subdivision f , which had restricted the authority of the federal process server to the state in which the district court sits.
This subdivision provides for service on individuals who are in a foreign country, replacing the former subdivision i that was added to Rule 4 in Reflecting the pattern of Rule 4 in incorporating state law limitations on the exercise of jurisdiction over persons, the former subdivision i limited service outside the United States to cases in which extraterritorial service was authorized by state or federal law.
The new rule eliminates the requirement of explicit authorization. On occasion, service in a foreign country was held to be improper for lack of statutory authority. Winder , F. This authority, however, was found to exist by implication. VTR, Inc. Given the substantial increase in the number of international transactions and events that are the subject of litigation in federal courts, it is appropriate to infer a general legislative authority to effect service on defendants in a foreign country.
A secondary effect of this provision for foreign service of a federal summons is to facilitate the use of federal long-arm law in actions brought to enforce the federal law against defendants who cannot be served under any state law but who can be constitutionally subjected to the jurisdiction of the federal court.
Such a provision is set forth in paragraph 2 of subdivision k of this rule, applicable only to persons not subject to the territorial jurisdiction of any particular state. See 28 U. This Convention is an important means of dealing with problems of service in a foreign country. See generally 1 B. Use of the Convention procedures, when available, is mandatory if documents must be transmitted abroad to effect service.
See Volkswagenwerk Aktiengesellschaft v. Schlunk , U. Therefore, this paragraph provides that, when service is to be effected outside a judicial district of the United States, the methods of service appropriate under an applicable treaty shall be employed if available and if the treaty so requires.
The Hague Convention furnishes safeguards against the abridgment of rights of parties through inadequate notice. Article 15 provides for verification of actual notice or a demonstration that process was served by a method prescribed by the internal laws of the foreign state before a default judgment may be entered. Article 16 of the Convention also enables the judge to extend the time for appeal after judgment if the defendant shows a lack of adequate notice either to defend or to appeal the judgment, or has disclosed a prima facie case on the merits.
The Hague Convention does not specify a time within which a foreign country's Central Authority must effect service, but Article 15 does provide that alternate methods may be used if a Central Authority does not respond within six months.
Generally, a Central Authority can be expected to respond much more quickly than that limit might permit, but there have been occasions when the signatory state was dilatory or refused to cooperate for substantive reasons. In such cases, resort may be had to the provision set forth in subdivision f 3.
Two minor changes in the text reflect the Hague Convention. The provision should not be interpreted to authorize use of a letter of request when there is in fact no treaty obligation on the receiving country to honor such a request from this country or when the United States does not extend diplomatic recognition to the foreign nation.
Paragraph 2 provides alternative methods for use when internationally agreed methods are not intended to be exclusive, or where there is no international agreement applicable.
It contains most of the language formerly set forth in subdivision i of the rule. Service by methods that would violate foreign law is not generally authorized.
Subparagraphs A and B prescribe the more appropriate methods for conforming to local practice or using a local authority. Subparagraph C prescribes other methods authorized by the former rule. Paragraph 3 authorizes the court to approve other methods of service not prohibited by international agreements. The Hague Convention, for example, authorizes special forms of service in cases of urgency if convention methods will not permit service within the time required by the circumstances.
Other circumstances that might justify the use of additional methods include the failure of the foreign country's Central Authority to effect service within the six-month period provided by the Convention, or the refusal of the Central Authority to serve a complaint seeking punitive damages or to enforce the antitrust laws of the United States.
In such cases, the court may direct a special method of service not explicitly authorized by international agreement if not prohibited by the agreement. Inasmuch as our Constitution requires that reasonable notice be given, an earnest effort should be made to devise a method of communication that is consistent with due process and minimizes offense to foreign law.
A court may in some instances specially authorize use of ordinary mail. Levin v. Ruby Trading Corp. Subdivision g. This subdivision retains the text of former subdivision d 2. Provision is made for service upon an infant or incompetent person in a foreign country.
Subdivision h. This subdivision retains the text of former subdivision d 3 , with changes reflecting those made in subdivision e. It also contains the provisions for service on a corporation or association in a foreign country, as formerly found in subdivision i.
Frequent use should be made of the Notice and Request procedure set forth in subdivision d in actions against corporations. Care must be taken, however, to address the request to an individual officer or authorized agent of the corporation. It is not effective use of the Notice and Request procedure if the mail is sent undirected to the mail room of the organization.
This subdivision retains much of the text of former subdivisions d 4 and d 5. Paragraph 1 provides for service of a summons on the United States; it amends former subdivision d 4 to permit the United States attorney to be served by registered or certified mail. The rule does not authorize the use of the Notice and Request procedure of revised subdivision d when the United States is the defendant.
To assure proper handling of mail in the United States attorney's office, the authorized mail service must be specifically addressed to the civil process clerk of the office of the United States attorney. Paragraph 2 replaces former subdivision d 5. Paragraph 3 saves the plaintiff from the hazard of losing a substantive right because of failure to comply with the complex requirements of multiple service under this subdivision.
That risk has proved to be more than nominal. This provision should be read in connection with the provisions of subdivision c of Rule 15 to preclude the loss of substantive rights against the United States or its agencies, corporations, or officers resulting from a plaintiff's failure to correctly identify and serve all the persons who should be named or served. Subdivision j. This subdivision retains the text of former subdivision d 6 without material change.
The waiver-of-service provision is also inapplicable to actions against governments subject to service pursuant to this subdivision. The revision adds a new paragraph 1 referring to the statute governing service of a summons on a foreign state and its political subdivisions, agencies, and instrumentalities, the Foreign Sovereign Immunities Act of , 28 U.
The caption of the subdivision reflects that change. Subdivision k. This subdivision replaces the former subdivision f , with no change in the title. Paragraph 1 D is new, but merely calls attention to federal legislation that may provide for nationwide or even world-wide service of process in cases arising under particular federal laws.
Congress has provided for nationwide service of process and full exercise of territorial jurisdiction by all district courts with respect to specified federal actions. Paragraph 2 is new. It authorizes the exercise of territorial jurisdiction over the person of any defendant against whom is made a claim arising under any federal law if that person is subject to personal jurisdiction in no state.
This addition is a companion to the amendments made in revised subdivisions e and f. This paragraph corrects a gap in the enforcement of federal law. Under the former rule, a problem was presented when the defendant was a non-resident of the United States having contacts with the United States sufficient to justify the application of United States law and to satisfy federal standards of forum selection, but having insufficient contact with any single state to support jurisdiction under state long-arm legislation or meet the requirements of the Fourteenth Amendment limitation on state court territorial jurisdiction.
In such cases, the defendant was shielded from the enforcement of federal law by the fortuity of a favorable limitation on the power of state courts, which was incorporated into the federal practice by the former rule. In this respect, the revision responds to the suggestion of the Supreme Court made in Omni Capital Int'l v.
There remain constitutional limitations on the exercise of territorial jurisdiction by federal courts over persons outside the United States.
These restrictions arise from the Fifth Amendment rather than from the Fourteenth Amendment, which limits state-court reach and which was incorporated into federal practice by the reference to state law in the text of the former subdivision e that is deleted by this revision. The Fifth Amendment requires that any defendant have affiliating contacts with the United States sufficient to justify the exercise of personal jurisdiction over that party. Wells Fargo Express Co. See DeJames v.
Magnificent Carriers , F. Compare World-Wide Volkswagen Corp. Woodson , U. Compagnie des Bauxites de Guinee , U. Rudzewicz , U. Superior Court of Cal. See generally R. This provision does not affect the operation of federal venue legislation.
See generally 28 U. Nor does it affect the operation of federal law providing for the change of venue. The district court should be especially scrupulous to protect aliens who reside in a foreign country from forum selections so onerous that injustice could result. First Nat'l City Bank , U. This narrow extension of the federal reach applies only if a claim is made against the defendant under federal law. It does not establish personal jurisdiction if the only claims are those arising under state law or the law of another country, even though there might be diversity or alienage subject matter jurisdiction as to such claims.
If, however, personal jurisdiction is established under this paragraph with respect to a federal claim, then 28 U. Subdivision l. This subdivision assembles in one place all the provisions of the present rule bearing on proof of service. No material change in the rule is effected. The provision that proof of service can be amended by leave of court is retained from the former subdivision h.
Subdivision m. This subdivision retains much of the language of the present subdivision j. The new subdivision explicitly provides that the court shall allow additional time if there is good cause for the plaintiff's failure to effect service in the prescribed days, and authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown.
Such relief formerly was afforded in some cases, partly in reliance on Rule 6 b. Relief may be justified, for example, if the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or conceals a defect in attempted service. Owens-Illinois, Inc. A specific instance of good cause is set forth in paragraph 3 of this rule, which provides for extensions if necessary to correct oversights in compliance with the requirements of multiple service in actions against the United States or its officers, agencies, and corporations.
The district court should also take care to protect pro se plaintiffs from consequences of confusion or delay attending the resolution of an in forma pauperis petition. Robinson v. To simplify the text, the revision returns to the usual practice in the rule of referring simply to the plaintiff even though its principles apply with equal force to defendants who may assert claims against non-parties under Rules 13 h , 14, 19, 20, or Subdivision n.
This subdivision provides for in rem and quasi-in-rem jurisdiction. Paragraph 1 incorporates any requirements of 28 U. Paragraph 2 provides for other uses of quasi-in-rem jurisdiction but limits its use to exigent circumstances. Provisional remedies may be employed as a means to secure jurisdiction over the property of a defendant whose person is not within reach of the court, but occasions for the use of this provision should be rare, as where the defendant is a fugitive or assets are in imminent danger of disappearing.
Until , it was not possible under Rule 4 to assert jurisdiction in a federal court over the property of a defendant not personally served. The amendment to subdivision e authorized the use of state law procedures authorizing seizures of assets as a basis for jurisdiction.
Given the liberal availability of long-arm jurisdiction, the exercise of power quasi-in-rem has become almost an anachronism. Circumstances too spare to affiliate the defendant to the forum state sufficiently to support long-arm jurisdiction over the defendant's person are also inadequate to support seizure of the defendant's assets fortuitously found within the state.
Shaffer v. Heitner , U. Paragraph 2 B is added to Rule 4 i to require service on the United States when a United States officer or employee is sued in an individual capacity for acts or omissions occurring in connection with duties performed on behalf of the United States.
Decided cases provide uncertain guidance on the question whether the United States must be served in such actions. See Vaccaro v. Dobre , 81 F. Sears , 33 F. Chasin , F. Wolf , F. District of Columbia , F. Service on the United States will help to protect the interest of the individual defendant in securing representation by the United States, and will expedite the process of determining whether the United States will provide representation.
It has been understood that the individual defendant must be served as an individual defendant, a requirement that is made explicit. Invocation of the individual service provisions of subdivisions e , f , and g invokes also the waiver-of-service provisions of subdivision d. There is no reason to require service on the United States in these actions. The connection to federal employment that requires service on the United States must be determined as a practical matter, considering whether the individual defendant has reasonable grounds to look to the United States for assistance and whether the United States has reasonable grounds for demanding formal notice of the action.
An action against a former officer or employee of the United States is covered by paragraph 2 B in the same way as an action against a present officer or employee. Termination of the relationship between the individual defendant and the United States does not reduce the need to serve the United States.
Paragraph 3 is amended to ensure that failure to serve the United States in an action governed by paragraph 2 B does not defeat an action. This protection is adopted because there will be cases in which the plaintiff reasonably fails to appreciate the need to serve the United States.
There is no requirement, however, that the plaintiff show that the failure to serve the United States was reasonable. A reasonable time to effect service on the United States must be allowed after the failure is pointed out. An additional change ensures that if the United States or United States attorney is served in an action governed by paragraph 2 A , additional time is to be allowed even though no officer, employee, agency, or corporation of the United States was served.
GAP Report. The most important changes were made to ensure that no one would read the seemingly independent provisions of paragraphs 2 A and 2 B to mean that service must be made twice both on the United States and on the United States employee when the employee is sued in both official and individual capacities. The language of Rule 4 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules.
These changes are intended to be stylistic only. Rule 4 d 1 C corrects an inadvertent error in former Rule 4 d 2 G. The defendant needs two copies of the waiver form, not an extra copy of the notice and request. In addition, subdivision f 3 is added to the description of methods of service that the court may order; the addition ensures the evident intent that the court not order service by means prohibited by international agreement.
A party other than a plaintiff may need a reasonable time to effect service. Rule 4 i 4 properly covers any party. It is given to a person or business so that they know they are being sued and they are given the opportunity to defend themselves.
This notification procedure is called service of process. A lawsuit starts when a person files a complaint or petition. A complaint or petition is a document that says that the person being sued has done something wrong, or the person filing wants something to happen. After a person files a complaint or petition, they will fill out a summons.
Then, they will have the summons served on the other party. If a summons is properly served on the other party, then the parties must present their case in court or file an appearance or an answer.
Reasonable accommodations may be made to hold appearances via phone or video call. If a person sues someone without giving them proper notice of the lawsuit, the case can be dismissed. Notice, and an opportunity to be heard, are required.
In order to give proper notice, a person usually must give the other party a summons. The cost for serving a summons varies depending on how you serve the summons. If a person uses the Sheriff , they can find out the fee by calling the Sheriff in their county.
A person may be able to get the fee waived for serving someone. They must meet certain income and property guidelines and file a fee waiver. Usually, a fee waiver is filed electronically. You can still file even if you don't have internet access. This may require a hearing or it may be approved without one.
If you fail to appear in court for the hearing on your fee waiver, the court may dismiss your claim or strike your appearance. However, hearings for an application to waive fees may now be held over phone or video call within days. During the Covid pandemic, the courts require waivers to be e-filed. But, you may receive an exception to file in person or by mail. A person cannot serve the summons and complaint on the defendant on their own.
Usually, they will need to use one of the 3 following people:. If possible, the papers should be put in the hands of the person receiving them. However, this is not always required. If the person serving the papers speaks to the person receiving them through the door, or sees them come to the door but then they go back into the house, the person can leave the papers on the door or can slip them under the door.
There are separate rules for service of process on corporations, partnerships and the government. The most common way to serve a summons is to get the Sheriff to do it.
A person can get the sheriff in their county to serve a summons after they file their complaint and pay a fee. A person can hire a professional process server who is licensed to serve people. This usually costs more than using the Sheriff, but it can be a way to serve defendants who are harder to find or who are avoiding service. To find a professional process server, a person can look in the yellow pages, or on the internet. The National Association of Professional Process Servers also has a directory that a person can search by zip code.
Some counties require the plaintiff to ask the judge for permission to use a professional process server. Check with the local circuit clerk. If you need to get permission, use our Easy Form program to make the required forms. Give a copy of the summons and complaint to the licensed private detective. Once they serve the defendant, they will fill out a sworn statement on the back of the summons explaining how they served the defendant.
Anyone 18 years of age or older who is not a party in the lawsuit can serve a defendant, but the plaintiff must first ask the judge for permission. Use our Easy Form program to make the motion forms. In the motion, they must tell the judge the name of the person who will serve the defendant. A judge must issue an order appointing the server before they can serve the defendant. After serving the defendant, the person must complete a signed and notarized affidavit describing how they did it, and attach it to the original summons.
0コメント