An official record kept within the United States, or any state, . L. 97462, set out as a note under section 2071 of this title. 7154 carries forward the policy of the current rule and permits a party to serve a summons and complaint upon individuals and organizations described in Rule 4(d)(1) and (3) in accordance with the law of the state in which the district court sits. Subparagraph (B) of paragraph (1), referring to a letter rogatory, validates this method. Nordbye, Comments on Proposed Amendments to Rules of Civil Procedure for the United States District Courts, 18 F.R.D. In order to encourage defendants to return the acknowledgment form, the court can order a defendant who does not return it to pay the costs of service unless the defendant can show good cause for the failure to return it. Unless service of the summons is waived, a summons must be served whenever a person is joined as a party against whom a claim is made. Subdivision (i). See Vaccaro v. Dobre, 81 F.3d 854, 856857 (9th Cir. CHAPTER I. The former text described this process as service-by-mail. Under the former rule, a problem was presented when the defendant was a non-resident of the United States having contacts with the United States sufficient to justify the application of United States law and to satisfy federal standards of forum selection, but having insufficient contact with any single state to support jurisdiction under state long-arm legislation or meet the requirements of the Fourteenth Amendment limitation on state court territorial jurisdiction. A defendant failing to comply with a request for waiver shall be given an opportunity to show good cause for the failure, but sufficient cause should be rare. Although it may seem awkward to think of suit against an employee in an official capacity, there is no clear definition that separates officers from employees for this purpose. The so-called "laundry list," former Rule 4.2(a)(2)(A)-(H), read as follows: (2) SUFFICIENT CONTACTS. 1994); Ecclesiastical Order of the Ism of Am v. Chasin, 845 F.2d 113, 116 (6th Cir. 1955); cf. H.R. Subd. Since that time, Mr. McClory and I introduced a bill, H.R. 1987). (1) Foreign State. This carries forward the policy of present Rule 4(c). If the waiver is signed and returned, you can still make these and all other defenses and objections, but you cannot object to the absence of a summons or of service. If service were not accomplished within that time, proposed subdivision (j) required that the action be dismissed as to that defendant without prejudice upon motion or upon the court's own initiative. Similarly, the Marshals Service may utilize the mail service authorized by Rule 4(c)(2)(C)(ii) when serving a summons and complaint under Rule 4(c)(2)(B)(i)(iii). In this spirit Judiciary Committee staff consulted with representatives of this Department, the Judicial Conference, and others who had voiced concern about the proposed amendments. 97662, at 24 (1982). Subparagraph (D) of paragraph (1), permitting service by certain types of mail, affords a manner of service that is inexpensive and expeditious, and requires a minimum of activity within the foreign country. The revised text makes clear that the responsibility for filling in the summons falls on the plaintiff, not the clerk of the court. See Appendix II, at 18 (Advisory Committee Note). Accordingly, all process in the hands of the Marshals Service prior to the effective date will be served by the Marshals Service under the present rule. On occasion, service in a foreign country was held to be improper for lack of statutory authority. 1 In addition to amending Rule 4, we have previously recommended: (a) amendments to 28 U.S.C. Subdivision (c). This provision is redundant in view of new Rule 4(c)(2)(C)(i). 1193 (1949). This enumerates the officers and agents of a corporation or of a partnership or other unincorporated association upon whom service of process may be made, and permits service of process only upon the officers, managing or general agents, or agents authorized by appointment or by law, of the corporation, partnership or unincorporated association against which the action is brought. I understand that I, or the entity I represent, will keep all defenses or objections to the lawsuit, the courts jurisdiction, and the venue of the action, but that I waive any objections to the absence of a summons or of service. 146, 293; 38 U.S.C. 18 This, except for nonsubstantive changes in phrasing, is identical to the Supreme Court's proposal. 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. 1971); Moore Co. v. Sid Richardson Carbon & Gasoline Co., 347 F.2d 921 (8th Cir. Subparagraphs (B) and (C) of new Rule 4(c)(2) set forth exceptions to this general rule. (1) United States. (3) By a Marshal or Someone Specially Appointed. The provisions in former subdivision (c)(2)(C)(ii) of this rule may have been misleading to some parties. By signing and returning the waiver form, you are allowed more time to respond than if a summons had been served. 24 The plaintiff may move under Rule 6(b) to enlarge the time period. any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or (3) by other means not prohibited by international agreement as may be directed by the court. Until 1963, it was not possible under Rule 4 to assert jurisdiction in a federal court over the property of a defendant not personally served. The purpose of this amendment is to authorize service of process to be made by any person who is authorized to make service in actions in the courts of general jurisdiction of the state in which the district court is held or in which service is made. 1957); Kappus v. Western Hills Oil, Inc., 24 F.R.D. The Committee received numerous complaints that the changes not only failed to achieve that goal, but that in the process the changes saddled litigators with flawed mail service, deprived litigants of the use of effective local procedures for service, and created a time limit for service replete with ambiguities that could only be resolved by costly litigation. 10, H.R. See Farr & Co. v. Cia. It excludes any risk that this rule might be read to govern service on a federal agency, or other entities not created by state law. A minor or an incompetent person who is not within any judicial district of the United States must be served in the manner prescribed by Rule 4(f)(2)(A), (f)(2)(B), or (f)(3). The dismissal is without prejudice. 1965). The same change from infant to minor is made throughout the rules. Explicit provision for this manner of service was thought desirable because a number of Federal and State statutes permitting foreign service do not specifically provide for service by personal delivery abroad, see e.g., 35 U.S.C. Second, subparagraph (B)(ii) requires the Marshals Service (or someone specially appointed by the court) to serve a summons and complaint when the court orders the marshals to do so in order properly to effect service in that particular action. , Circuit Court of County. 515 (1953); Longley, Serving Process, Subpoenas and Other Documents in Foreign Territory, Proc. The bill would also amend Rule 4 to permit certain classes of defendants to be served by first class mail with a notice and acknowledgment of receipt form enclosed. A specific instance of good cause is set forth in paragraph (3) of this rule, which provides for extensions if necessary to correct oversights in compliance with the requirements of multiple service in actions against the United States or its officers, agencies, and corporations. Shortening the time to serve under Rule 4(m) means that the time of the notice required by Rule 15(c)(1)(C) for relation back is also shortened. 1987); see also Simpkins v. District of Columbia, 108 F.3d 366, 368369 (D.C. Cir. Notice to claimants of the property must be given as provided in the statute or by serving a summons under this rule. The provision will be especially useful in metropolitan areas spanning more than one State. (4) Extending Time. By so doing, H.R. Paragraph (5) is a cost-shifting provision retained from the former rule. 529, 30 (1991) and cases cited. The language of Rule 4 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. While the Committee received no complaints about the goal of reducing the role of the Marshals Service, the Court's proposals simply failed to achieve that goal. Frequent use should be made of the Notice and Request procedure set forth in subdivision (d) in actions against corporations. This Rule is mostly unchanged. (j). 1958); Sperry v. Fliegers, 194 Misc. 1746, which permits the use of unsworn declarations under penalty of perjury whenever an oath or affirmation is required. 1960). Accordingly, we are satisfied that the provisions of H.R. (1) Federal Law. That risk has proved to be more than nominal. Section 2 of the bill consists of 7 numbered paragraphs, each amending a different part of Rule 4 of the Federal Rules of Civil Procedure. 1959); Star v. Rogalny, 162 F.Supp. 1956); 2 Moore's Federal Practice, 4.19 (2d ed. Paragraph (2) provides for other uses of quasi-in-rem jurisdiction but limits its use to exigent circumstances. The former provision describing service on interpleader claimants [former subd. Paragraph (6) of section 2 of the bill amends Rule 4(g), which deals with return of service. If you do not return the signed waiver within the time indicated, I will arrange to have the summons and complaint served on you. This provision tracks the language of 28 U.S.C. Like proposed subsection (j), H.R. To conform to these provisions, the former subdivision (e) bearing on proceedings against parties not found within the state is stricken. Subdivision (f). If the circumstances of a particular case satisfy the applicable Federal law (first sentence of Rule 4(e), as amended) and the applicable State law (second sentence), the party seeking to make the service may proceed under the Federal or the State law, at his option. Statements made under penalty of perjury are subject to 18 U.S,C. New subdivision 4.2(a) was formerly Rule 4(b). (Advisory Committee Note). Production of documents and things and entry upon land for inspection and other purposes. 694, 57 L.Ed. Subdivision (d). To avoid these expenses, you must return the signed waiver within (give at least 30 days or at least 60 days if the defendant is outside any judicial district of the United States) from the date shown below, which is the date this notice was sent. Federal judges undoubtedly will consider the risk of harm to private persons who would be making personal service when deciding whether to order the Marshals Service to make service under Rule 4(c)(2)(B)(iii). Process in behalf of and against persons not parties. Nor does it affect the operation of federal law providing for the change of venue. Co. v. Pine Tree Products Co., Inc., 8 F.Supp. Those few provisions of the former rule which relate specifically to service of process other than a summons are relocated in Rule 4.1 in order to simplify the text of this rule. See also amended Rule 13(a), and the Advisory Committee's Note thereto. Frequently the form of the summons or notice required in these cases by State law differs from the Federal form of summons described in present subdivision (b) and exemplified in Form 1. The court may permit proof of service to be amended. 2d. Section 5 of the bill provides that the amendments to Rule 4 proposed by the Supreme Court (whose effective date was postponed by Public Law 97227) shall not take effect. 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 orif unrepresentedof the plaintiff; Co., 361 F. 2d 838 (5th Cir. By waiving service, the defendant can reduce the costs that may ultimately be taxed against it if unsuccessful in the lawsuit, including the sometimes substantial expense of translation that may be wholly unnecessary for defendants fluent in English. The special provision for proof of service by mail is intended as an additional safeguard when that method is used. The Hague Convention does not specify a time within which a foreign country's Central Authority must effect service, but Article 15 does provide that alternate methods may be used if a Central Authority does not respond within six months. See 1 R. Casad, Jurisdiction in Civil Actions (2d Ed.) 15 If, on the other hand, the plaintiff has made reasonable efforts to effect service, then the plaintiff can move under Rule 6(b) to enlarge the time within which to serve or can oppose dismissal for failure to serve. at 203 (criminal rules); J. Weinstein, Reform of Federal Court Rulemaking Procedure (1977); Weinstein, Reform of Federal Rulemaking Procedures, 76 Colum.L.Rev. 784(a); Ill.Ann.Stat. 919 (D.D.C. The revised rule explicitly authorizes a means for service of the summons and complaint on any defendant. Rule 4(d)(5) is amended to provide that service upon a named defendant agency or officer of the United States shall be made by sending a copy of the summons and complaint by registered or certified mail to the defendant. Note to Subdivision (d). of Pres. 2 Accordingly, in order to help shape the policy behind, and the form of, the proposed amendments, Congress must enact legislation before October 1, 1983. 1996); Armstrong v. Sears, 33 F.3d 182, 185187 (2d Cir. This protection is adopted because there will be cases in which the plaintiff reasonably fails to appreciate the need to serve the United States. The rules were first adopted by order of the Supreme Court on December 20, 1937, transmitted to Congress on January 3, 1938, and effective September 16, 1938. Paragraph (3) authorizes the court to approve other methods of service not prohibited by international agreements. It does not establish personal jurisdiction if the only claims are those arising under state law or the law of another country, even though there might be diversity or alienage subject matter jurisdiction as to such claims. 1951); United States v. Cardillo, 135 F.Supp. In this respect, the revision responds to the suggestion of the Supreme Court made in Omni Capital Int'l v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 111 (1987). We urge prompt consideration of H.R. Revised subdivision (b) replaces the former subdivision (a). Moreover, a foreign defendant that waives service is afforded substantially more time to defend against the action than if it had been formally served: under Rule 12, a defendant ordinarily has only 20 days after service in which to file its answer or raise objections by motion, but by signing a waiver it is allowed 90 days after the date the request for waiver was mailed in which to submit its defenses. These changes are intended to be stylistic only. Other aspects of foreign service continue to be governed by the other provisions of Rule 4. Federal and State statutes authorizing service on nonresidents in such terms as to warrant the interpretation that service abroad is permissible include 15 U.S.C. Thus, where a defendant files a cross-claim against the plaintiff, the 120 day period begins to run upon the filing of the cross-complaint, not upon the filing of the plaintiff's complaint initiating the action. See Jones, supra, at 537; Longley, supra, at 35. 30, 2007, eff. Paragraph (1) of revised subdivision (c) retains language from the former subdivision (d)(1). One Form of Action TITLE II. Aug. 1, 1987; Apr. v. Superior Court of Cal., Solano County, 480 U.S. 102, 108 13 (1987). This paragraph, governing service upon the United States, is amended to allow the use of certified mail as an alternative to registered mail for sending copies of the papers to the Attorney General or to a United States officer or agency. 12. If the defendant returns the acknowledgment form to the sender within 20 days of mailing, the sender files the return and service is complete. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sentor until 90 days after it was sent to the defendant outside any judicial district of the United States. But cf. Simply stated, our mission is to be the most successful judicial system in the nation. This subdivision retains much of the language of the present subdivision (j). 1958); but cf. More time may be needed, for example, when a request to waive service fails, a defendant is difficult to serve, or a marshal is to make service in an in forma pauperis action. 21 For example, the sender must state the date of mailing on the form. See 2 Moore, supra. Primarily because United States marshals currently effect service of process, no time restriction has been deemed necessary. The waiver-of-service provision is also inapplicable to actions against governments subject to service pursuant to this subdivision. As amended by the legislation, Rule 4(a) provides that the summons be delivered to the plaintiff or the plaintiff's attorney, who shall be responsible for prompt service of the summons and complaint. General verdicts, special verdicts, and interrogatories. This was so, they argued, because signatures may be illegible or may not match the name of the defendant, or because it may be difficult to determine whether mail has been unclaimed or refused, the latter apparently providing the sole basis for a default judgment. See, e.g., Ill.Ann.Stat. 1 The drafting of the rules and amendments is actually done by a committee of the Judicial Conference of the United States. Compare Operative Plasterers and Cement Finishers International Ass'n of the United States and Canada v. Case, 93 F.(2d) 56 (App.D.C., 1937). 6. 569(b) because the latter is a broader command to marshals to serve all federal court process. (3) Validity of Service; Amending Proof. A party failing to effect service on all the offices of the United States as required by the rule is assured adequate time to cure defects in service. 1987). For the [former] Equity Rule on service, see [former] Equity Rule 13 (Manner of Serving Subpoena). In order to consider these criticisms, Congress enacted Public Law 97227, postponing the effective date of the proposed amendments to Rule 4 until October 1, 1983. The second sentence of the former subdivision (b) has been stricken, so that the federal court summons will be the same in all cases. The extension is intended to serve as an inducement to waive service and to assure that a defendant will not gain any delay by declining to waive service and thereby causing the additional time needed to effect service. (i) delivery to the individual personally of a copy of the summons and the complaint; or (ii) any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or (3) by other means not prohibited by international agreement as may be directed by the court. Form of Pleadings Rule 11. If the plaintiff has not been diligent, the court will dismiss the complaint for failure to serve within 120 days, and the plaintiff will be barred from later maintaining the cause of action because the statute of limitation has run. Infants or incompetent persons likewise are not called upon to waive service because, due to their presumed inability to understand the request and its consequences, they must generally be served through fiduciaries. While the methods of service so authorized always provide appropriate notice to persons against whom claims are made, effective service under this rule does not assure that personal jurisdiction has been established over the defendant served. ), rev'd on other grounds, 346 U.S. 338, 74 S.Ct. (1) Affidavit Required. Under this rule the complaint must always be served with the summons. Subdivision (i)(2). 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). By waiving service, a defendant is not called upon to respond to the complaint until 60 days from the date the notice was sent to it90 days if the notice was sent to a foreign countryrather than within the 20 day period from date of service specified in Rule 12.