Service of process is the procedure used to notify a defendant of the lawsuit. Because it is fair and important for someone to have an opportunity to respond to allegations, service is required by law, is exacting, and must be done in one of several specific ways. If service is not done according to the law, the court may dismiss your complaint. Rule 4 of the Federal Rules of Civil Procedure states the requirements for service. Rule 4 includes special requirements for service when suing the United States, one of its agencies, or one of its employees.
If you are the one suing, you must fill out summons forms (one for each defendant) and present them to the clerk’s office, where a clerk will sign them and stamp them with the court’s seal. From there, you will need a copy of each official summons (the one with the clerk’s signature and seal) and a copy of the complaint and any of its attachments (one copy for each defendant). You must serve those documents on each defendant within 90 days of filing the complaint or risk dismissal of your case.
There are three ways to serve a defendant with a complaint:
- Personal Service: You can tell someone else to personally deliver or serve the copies. The server must be older than 18 and may not be a party in the case. The server must then complete and sign the back of the original summons form and return it to you so you can file it with the court. That is called the return of service. It is proof to the court that the defendant knows about the case.
- Waiver of Service: A defendant may waive service, which means the defendant agrees to respond to the complaint even though you did not personally serve the defendant with the complaint and summons. Here are forms for waiver of service:
Once you have completed those two forms, you can mail them to each defendant with a copy of the complaint and any of its attachments. If the defendant completes the form and either you or the defendant returns it to the court, you do not have to complete personal service of process.
- Service by United States Marshal: If the court allows you to proceed in forma pauperis and waives the filing fee, and if the court further finds your complaint is not subject to dismissal (for example, because it is frivolous or the person being sued is immune from liability), the court will direct the United States Marshal to complete service of process at no cost to you. Note, however, that you still must provide completed summonses and copies of the summonses and complaints to the clerk’s office for forwarding to the United States Marshal.