* Rule 4– Serving a ‘Summons’ to the Defendant(s) *

Federal Rules of Civil Procedure Simplified:
Title II – Commencing an Action; Service of Process; Pleadings, Motions, & Orders
Rule 4 – Summons

     Continued from Rule 3 – Commencing a Civil Action: Filing a Complaint:

Definition of Summon:

“To command (a person) by service of a Summons to appear in court. — Also termed summons. [1]

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Rule 4 Simplified:
(full transcript below)

Step 1 – File a Summons with The Federal Clerk of Court to have it Signed & Sealed:

(Rules 4(a) and 4(b) explain this section)

    On or after filing the Complaint, the Plaintiff may present a completed Summons form to the Clerk for each Defendant to be served.  If the Summons are properly filled out, the Clerk must sign, seal, & then issue a copy of each signed & sealed Summons (or just one Summons if there is only one Defendant) back to the Plaintiff for use in serving the Defendant(s).  The court may permit a Summons to be amended, if needed.

Summons Court Form:

Summons in a Civil ActionForm AO 440
(same form on UScourts.gov)

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Step 2 – Send the Defendant(s) a Notice of a Lawsuit form, two Waivers, & a self-addressed, stamped envelope via Certified Mail:

    On the Summons formthere is a PROOF OF SERVICE section on page 2 wherein the Person you select to Serve the Defendant must explain:

1.) Where they delivered the form.

2.) What their fee ($) for “travel expenses and cost for service” is.

    Because the Defendant has “a duty to avoid unnecessary expenses of serving the
Summons(see Rule 4(d)(1)), in order to offer the Defendant the opportunity to avoid paying the service fee, the Plaintiff should send the following, via certified mail (ask your local USPS employee), to each Defendant:

1.) One signed copy of “Notice of a Lawsuit and Request to Waive Service of a Summons- Form ao398”.

2.) Two copies of “Waiver of the Service of Summons- Form ao399” (“Waiver”).

3.) One copy of the Complaint.

4.) One stamped, self-addressed envelope or other prepaid means.

     The Notice of a Lawsuit and Request to Waive Service of a Summons Form ao398 includes a section which informs the Defendant(s) that they may sign one copy of the Waiver, & then return it using the stamped, self-addressed envelope (or other means) in order to waive the cost of Service fee.  The Notice of a Lawsuit and Request to Waive Service of a Summons Form ao398 also explains to the defendant that the second copy of the Waiver is included as a receipt for their records.  When the Plaintiff files a Waiver, proof of service is no longer required and these rules apply as if a Summons and Complaint had been served at the time of filing the Waiver(Rule 4(d) through (m) explain this section)

Forms Associated with Step 2:

Notice of a Lawsuit and Request to Waive Service of a Summons- Form ao398
(same form on UScourts.gov)

Waiver of the Service of Summons- Form ao399
(same form on UScourts.gov)

If the Defendant returns the Waiver in a timely manner:

    The Defendant does not need to serve an Answer to the Complaint until 60 days after the forms were sent to them– or 90 days if the Defendant is outside any judicial district of the United States. (explained in Rule 4(d)(3))

If the Defendant does not return the Waiver in a timely manner, go to Step 3.

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Step 3 – How to Serve The Summons to the Defendant:

(Rule 4(c) explains this section)

    A Summons must be served with a copy of the Complaint to each Defendant within 90 days after filing the Complaint with the Clerk of Court by a responsible party who is at least 18 years old & not a party in the case.  At the Plaintiff’s request, the court may order that service be made by a U.S. marshal or deputy marshal or by a person specially appointed by the court.  The court must so order if the Plaintiff is authorized to proceed with a Court Fee Waiver (see in forma pauperis under 28 U.S.C. §1915 or as a seaman under 28 U.S.C. §1916 to learn about Court Fee Waivers)(Rule 4(c) explains this section)  There are several methods in which an individual may serve a Defendant(s).  These methods are explained in Rules 4(e) through (j), depending on who or which type of individual or organization is being served:

Click for directions:

If You are Seeking to Recover Property that was Wrongfully Taken from You:

Note: Rule (n) is self-explanatory, so there is no summary- only a transcript:

(n) Asserting Jurisdiction Over Property or Assets.

(1) Federal Law. The court may assert jurisdiction over property if authorized by a federal statute. Notice to claimants of the property must be given as provided in the statute or by serving a summons under this rule.

(2) State Law. On a showing that personal jurisdiction over a defendant cannot be obtained in the district where the action is brought by reasonable efforts to serve a summons under this rule, the court may assert jurisdiction over the defendant’s assets found in the district.  Jurisdiction is acquired by seizing the assets under the circumstances and in the manner provided by state law in that district.

Next Rule:

Rule 4.1 – Serving Other Process

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Transcript of Rule 4:

Click to read the text of the various sections in context with the summaries we created:

Step 1: Rules 4(a) and (b) – Clerk of Court must Sign & Seal the Summons

Step 2: (d) and (k) Waiving Service of Summons

Step 3: Rule (c), and (e) through (m) – How to Serve the Summons to the Defendant

(n) Asserting Jurisdiction Over Property or Assets.

(1) Federal Law. The court may assert jurisdiction over property if authorized by a federal statute. Notice to claimants of the property must be given as provided in the statute or by serving a summons under this rule.

(2) State Law. On a showing that personal jurisdiction over a defendant cannot be obtained in the district where the action is brought by reasonable efforts to serve a summons under this rule, the court may assert jurisdiction over the defendant’s assets found in the district.  Jurisdiction is acquired by seizing the assets under the circumstances and in the manner provided by state law in that district.

References:

All material utilized in accordance with Fair Use.

[1]: United States Courts, Federal Rules of Civil Procedure (2017):  www.uscourts.gov/rules-policies/current-rules-practice-procedure/federal-rules-civil-procedure

[2]: All definitions, unless otherwise indicated, from: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6

Next Rule:

Rule 4.1- Serving Other Process

 

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Federal Rules of Civil Procedure Simplified

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