Cheat Sheet on Service of Process in the Federal System | I. Glenn Cohen | November 19, 2013


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Cheat Sheet on Service of Process in the Federal System

Although connected to notice, Service of Process (SOP) is actually its own creature. The former is a constitutional requirement; the latter (in the federal system) is an FRCP requirement. State court systems may use a different form of SOP to satisfy the constitutional requirement.

On an exam, I could give you a hypothetical SOP system and then there might be an as applied or facial challenge as to whether it meets the notice requirement of DP.

FRCP 4 and the term “service of process”, to be finicky, is just for the complaint. It gets singled out because it is of particular importance as the first notice (usually) that there is a lawsuit. All other pleadings, motions, discovery requests, etc, fall under the more forgiving requirements of FRCP 5 where you can do in person service, but even just mailing it to the person’s last known address).

A. Basics.

What is the “process” to be served: technically we mean it is giving the defendant the initial notice of a lawsuit filed against him (aka the summons) with a complaint attached [FRCP 4(a)(1) and 4(c)(1).]

What does the “process” contain?

FRCP 4(a)(1)

Contents. A summons must:

(A) name the court and the parties;

(B) be directed to the defendant;

(C) state the name and address of the plaintiff's attorney or--if unrepresented--of the plaintiff;

(D) state the time within which the defendant must appear and defend;

(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;

(F) be signed by the clerk; and

(G) bear the court's seal.

For an example look at form 3 linked to on H20.

How do you do service? Different rules for individuals v. corporations and other entities. And for inside vs. outside US.

For individuals in the U.S.

5 methods. 3 traditional methods in FRCP 4(e)(2):

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Can you deliver to summer home? Can casual guest accept it under 4(e)(2)(B)? No.

Notice that the (C) clause is more restrictive than the equivalent clause for corporations below, in that it only allows it to go to agents authorized by appointment or by law to receive service of process, not general agents.

What is missing here? Mail. The old system used mail but rulemakers decided it was more hassle than it was worth, so no mail except through the waiver system or if that is authorized by state law system.

Who can be the person who delivers using these options? Anyone over 18 yrs old who is not a party to the action [FRCP 4(c)(2)]

Before 1983 the rule was different required a US Marshall or someone designated by court. That delayed things a lot, so they scrapped it but at Pl’s request you could still use a marshall, [FRCP 4(c)(3)] e.g., serving a plaintiff for a battery action in a domestic abuse situation. If the plaintiff is a seaman or in forma pauperis the court must do it by marshall.

4th option: Use the method of service of the state in which the federal court in which you are suing in sits [FRCP 4(e)(1)]. E.g., if in C.D. Cal you can use California’s service of process rules. This is Pl’s option.

5th option: if defendant resides outside the state in which the action is commenced, you can use that state’s service rule. [FRCP 4(e)(1)] If you are doing “tag” jurisdiction, you can also serve him with the service rule of the state where you “tag” him (more on this later with the Burnham case in the Personal Jurisdiction Section). You would not know it but it comes from the words “where service is made” in 4(e)(1).

Notice that FRCP allows SOP outside of the forum state, that was an innovation from 1993 amendments. Not all states do.


For individuals outside the U.S.

Special rules for serving individuals outside the U.S. R.4(f). Different countries use widely different methods of SOP. Rule allows “internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents “ that convention requires each contracting state to establish a central authority which receives and executes requests for service or process from other contracting states and makes sure that certification of service of process is effective. [Don’t worry about the details]

Leaves open the possibility that a method that would be good enough in the USA would not be good enough elsewhere. (This is covered in the Private International Law class).


For corporations, partnerships, associations inside the U.S.

4 methods.

FRCP 4(h)(1)(a): Directs you to the two options in FRCP 4(e)(1) (service by the method of the state where the case is filed, or where the corp can be served) [but note, you’d use the equivalent state law method for serving a corporation, not serving individuals]

FRCP 4(h)(1)(B) adds a third and fourth method:

by delivering a copy of the summons and of the complaint to an officer, a managing or general agent,

or [by delivering it to] any other agent authorized by appointment or by law to receive service of process and--if the agent is one authorized by statute and the statute so requires--by also mailing a copy of each to the defendant

The third: Officers are officially appointed as a matter of corp law, usually required to be identified with forms you file with the state in chartering your corp.

The fourth one is meant to be for a case where a contract specifies, for action on this contract about candlestick sales, Jean Valjean will receive service (“by appointment”), or a case where a state says by statute (as we’ll see in the Hess case later in the course) if you drive in Massachusetts you authorize service on the department of motor vehicles for any suit arising from an accident (“by law”).

On the option of delivering to officer, managing, or general agent….

Insurance Co of North America v. S/S Hellenic Challenger (SDNY) [read in playlist; to be discussed in class]

For corporations, partnerships, associations outside the U.S.

FRCP 4(h)(2) directs you to the same methods in FRCP 4(f) for individuals (except personal delivery under FRCP 4(f)(2)(C)(i) - where there is no internationally agr

eed upon method you cannot use the (i) delivering a copy of the summons and of the complaint to the individual personally. This is a level of detail not worth bothering yourself about.

B. Waiver of Service

A different way of satisfying the rule, without doing service.

FRCP 4(d): Waiver of service is encouraged: Pl notifies Def in writing (“by first class mail or other reliable means”) that he wants him to waive service with pertinent info (spelled out in rules), the complaint, two copies of a waiver of service form [look at Form 5 and 6 in Canvas] and prepaid envelope asking him to waive service and giving him at least 30 days to respond (60 if outside U.S.). If Def fails to waive service without good cause, the def has to pay the expenses of service along with any expenses relating to collecting those expenses. YOU STILL NEED TO SERVE DEF.

If Pl uses this method and Def agrees to waive, the Def gets 60 days from the day the request for waiver (and complaint) was sent (90 if outside the U.S.) to file answer or 12(b)(6) motion.

So two carrots for Def, you don’t have to pay for the service and you get extra time to respond.

Waiving service is not a waiver of objections to venue or personal jurisdiction.

Notice how the waiver idea solves any notice concern, if you waive you obviously got it.  If you don’t we just go back to personal service, the default method.


C. Timing, AKA the consequence of bad service:

FRCP 4(m): For service in the U.S., if Pl fails to serve w/in 120 days of filing complaint, the court can dismiss without prejudice (unless Pl shows good cause for delay).

It is a dismissal without prejudice, so no preclusion effects [we will discuss preclusion later in the course].


D. Challenging Bad Service:

FRCP 12(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

. . .

(4) insufficient process;

(5) insufficient service of process;

. . .

What is the difference between the two provisions? A motion to dismiss under Fed. R. Civ. Pro. 12(b)(4) attacks the sufficiency of process, thus challenging the form of the summons itself. A defect in the form of the summons results from “noncompliance with the provision of [Fed. R. Civ. Pro.] 4(b) or any applicable provision incorporated by Rule 4(b) that deals specifically with the content of the summons.” Most defects in the form of the summons are considered technical in nature. E.g., incorrect name of the defendant.  Thus, dismissal is generally not appropriate unless the moving party can establish some actual prejudice.

By contrast, a Rule 12(b)(5) motion, which is based on insufficiency of the service of process, does not challenge the form of the summons, but the service of the summons on the defendants. A Rule 12(b)(5) motion is the proper vehicle for challenging the lack of delivery or the failure to comply with the provisions of Rule 4(d)-(m), which outline various requirements of service.

The failure to properly serve defendants grants the court broad discretion to dismiss an action pursuant to Rule 12(b)(5) or quash service of process in the alternative and allow them to re-serve.

E. Return of Service

After process-server has delivered the papers, she must file a return, which should disclose enough facts to demonstrate that defendant actually has been served and given notice to appear in court. Proper return is ordinarily necessary for the trial court to conclude it has jurisdiction. Specific forms differ from state to state. Usually an affidavit by the person who performed the service or sworn statement of marshal, sheriff, if they did it. That is the federal rule in FRCP 4(l) (an affidavit required unless it is US marshal serving),

If you do this there is a strong presumption that Rule was satisfied, can be overcome but very hard to do. Defendant’s own testimony is not enough, you need something to corroborate it.

E.g, Miedrich case, S. Ct., upheld a mortgage foreclosure action even though the person was never served, the sheriff just lied and said he did serve. Rationale? The party serving the complaint did everything they were supposed to. Court notes that when the return is false, under that state’s law, the aggrieved could proceed against the sheriff who has to post a bond.


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