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Federal Practice Series Episode 2: Serving Process in Federal Court

By: Meighan Burton

Once a plaintiff has filed her complaint in federal court, the next step is to request a Writ of Summons for each defendant named in the complaint, and then serve each Writ, along with a copy of the complaint (the “process”), on the named defendant.  Unless and until the defendant is served, the case cannot proceed and eventually will be dismissed by the court. Thus, effective service of process is an essential part of initiating legal proceedings.

There are several methods available to a federal plaintiff to accomplish service; one method may be preferable over another due to the location of the defendant and whether the defendant is expected to voluntarily accept service or attempt to evade service.  Depending upon the particular circumstances of your case and the whereabouts of the defendant, some methods may significantly increase the cost and time it takes to complete service.

Federal Rules of Civil Procedure, Rule 4 governs service of any civil complaint filed in federal court.  A defendant located within the United States can be served by delivering a copy of the process directly to the defendant personally, by leaving a copy at the individual’s home with another adult resident who lives with the defendant, by delivering process to the individual or corporate defendant’s appointed agent, by delivering to a corporate defendant’s officer or resident agent, or by any other method that is permitted under the law of the state where the district court is located or where service is made. Rule 4(e).  If service is made in Maryland, in addition to the foregoing methods, the Maryland Rules permit service by certified mail, restricted delivery.  If serving a defendant outside of Maryland but within the United States, the rules of the state where service will be made should be consulted.  The plaintiff himself cannot serve process, but the plaintiff’s lawyer, legal staff or any other person over 18 can do so.

Personal delivery by a third-party process service is usually the preferred method of service on an individual defendant located in any U.S. state, particularly when there is doubt that the defendant will sign for a restricted delivery certified mail.  Also, if the return receipt card is not signed by the defendant himself, the service is probably defective, and the time and expense of sending the mail is wasted.  Companies are usually served via service on their resident agent or agent appointed by law.  Some resident agents charge a fee to accept service (such as the Maryland Insurance Administration, which agency is appointed by state law to receive service of process on behalf of any insurance company doing business in Maryland).       

Service on an individual or corporate defendant located or residing in a foreign country is a more complicated matter. Although whether the district court can exercise personal jurisdiction over the foreign defendant should be considered prior to filing suit, it is worth noting at this stage that if the claim arises under federal law and the defendant is not subject to personal jurisdiction in any specific state court, service on the defendant will establish personal jurisdiction in any federal district court so long as exercising jurisdiction is consistent with the Constitution and laws of the United States.  Rule 4(k)(2).   

If the foreign corporation has an agent or officer located at anywhere in the United States, service should be made by delivering process to that agent.  If there is no U.S. agent, the plaintiff must resort to “any internationally agreed means of service that is reasonably calculated to give notice,” such as the methods authorized by the Hague Convention.  Rule 4(f)(1).  If the country where the defendant resides is not a signatory to the Hague Convention, service must comply with the laws of that country.  Personal service may be accepted, along with any form of mail addressed by the clerk of the court that requires a signed receipt (Rule 4(f)(2)(C)), but usually service must be made in a non-signatory country by sending the process and a “Letter Rogatory” through the foreign ministry or directly to the court in the foreign jurisdiction.  A lawyer in the defendant’s jurisdiction should be consulted regarding this procedure.

Under the Hague Convention, plaintiff should obtain a request for service from the district court where the complaint has been filed, which request the district court will send to the “Central Authority” of the jurisdiction where the defendant is located (each signatory to the Convention must designate a Central Authority).  The Central Authority will approve the requested method of service in accordance with the laws of that jurisdiction and arrange for service. Once service is made, the Authority will send a certificate of service to back to the district court that made the request.  The process may need to be translated before it can be served. 

Finally, but perhaps most importantly, the federal rules provide a mechanism for defendants to waive formal service.  Rule 4(d).  This procedure should be used whenever possible because it avoids the potentially significant expense and time service can take (up to six months for foreign defendants).  A plaintiff can request that the defendant waive service by mailing the forms available on the district court’s website (insert link), along with a copy of the complaint and a pre-paid means of returning the waiver, directly to the defendant or an officer or agent of the defendant (via first class mail or other reliable means).  The defendant must return the waiver form within 30 days if received within the United States, or 60 days if received outside of the U.S.  Once a waiver is signed, the defendant’s time to answer the Complaint is significantly increased from 21 days (Rule 12) to 60 days for domestic defendants and 90 days for foreign defendants.  If a U.S. defendant refuses to return a signed waiver, the plaintiff can recover the expenses of service. 

Ms. Burton is well versed in civil practice and procedure before the United States District Courts for the Districts of Maryland and the District of Columbia, as well as the Courts of Appeal for the District of Columbia and Fourth Circuits. 

Contact Ms. Burton for more information at mburton@wcslaw.com.

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