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

     This page contains an unabridged, summarized version of Rule 4 of the Federal Rules of Civil Procedure, followed by a transcript of this section of the rule.  This section is continued from Step 2.

Step 3: Serving The Summons to the Defendant:

    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).  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 

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Important Information Regarding Personal Jurisdiction:

    Serving a summons to the defendant establishes personal jurisdiction over a defendant:

(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;

(B) any third party defendant who becomes joined into the case (under Rule 14or Rule 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or

(C) when authorized by a federal statute.

(2) Federal Claim Outside State-Court Jurisdiction. For a claim that arises under federal law, serving a summons establishes personal jurisdiction over a defendant if:

(A) the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction; and

(B) exercising jurisdiction is consistent with the United States Constitution and laws.

(I) Proving Service.

(1) Affidavit Required. Unless service is waived, proof of service must be made to the court.  Except for service by a United States marshal or deputy marshal, proof must be by the server’s affidavit.

(2) Service Outside the United States. Service not within any judicial district of the United States must be proved as follows:

(A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or

(B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee.

(3) Validity of Service; Amending Proof. Failure to prove service does not affect the validity of service. The court may permit proof of service to be amended.

Transcript of Rule 4(c):

(c) Service.

(1) In General. Summons must be served with a copy of the Complaint. The Plaintiff is responsible for having the Summons & Complaint served within the time allowed by Rule 4(m) (within 90 days after the complaint is filed, unless the plaintiff shows good cause for the failure, in which case the court must extend the time for service for an appropriate period) & must furnish the necessary copies to the person who makes service.

(2) By Whom. Any person who is at least 18 years old and not a party may serve a Summons and Complaint.

(3) By a Marshal or Someone Specially Appointed. At the Plaintiff’s request, the court may order that service be made by a United States 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 in forma pauperis under 28 U.S.C. §1915 or as a seaman under 28 U.S.C. §1916.

(e) Serving an Individual Within a Judicial District of the United States.

(f) Serving an Individual in a Foreign Country.

(g) Serving a Minor or an Incompetent Person.

(h) Serving a Corporation, Partnership, or Association.

(i) Serving the United States and its Agencies, Corporations, Officers, or Employees.

(j) Serving a Foreign, State, or Local Government.

(k) Territorial Limits of Effective Service.

(1) In General. Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:

(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;

(B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or

(C) when authorized by a federal statute.

(2) Federal Claim Outside State-Court Jurisdiction. For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if:

(A) the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction; and

(B) exercising jurisdiction is consistent with the United States Constitution and laws.

(I) Proving Service.

(1) Affidavit Required. Unless service is waived, proof of service must be made to the court.  Except for service by a United States marshal or deputy marshal, proof must be by the server’s affidavit.

(2) Service Outside the United States. Service not within any judicial district of the United States must be proved as follows:

(A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or

(B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee.

(3) Validity of Service; Amending Proof. Failure to prove service does not affect the validity of service. The court may permit proof of service to be amended.

(m) Time Limit for Service. If a defendant is not served within 90 days after the complaint is filed, the court – on motion or on its own after notice to the plaintiff – must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1) or to service of a notice under Rule 71.1(d)(3)(A).

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