Litigation - Waiver of Service of Summons on a Foreign Defendant

            After filing a lawsuit, the plaintiff has a few options on how to effect service of the lawsuit on a foreign defendant.

            The plaintiff could (1) request the foreign defendant waive service of Summons – Federal Rules of Civil Procedure (FRCP), Rule 4(d); (2) serve the foreign defendant through the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents – FRCP 4(f)(1); (3) serve the foreign defendant through the post – FRCP 4(f)(2); or (4) serve the foreign defendant through a mean that is "reasonably calculated, under all the circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to present their objections" – FRCP 4(f)(3).

            This post examines the process for requesting a foreign defendant to waive service of the Summons.  Subsequent, blog posts will examine the other options.

            The plaintiff should complete forms AO398 "Notice of Lawsuit and Request to Waive Service of a Summons" and AO399 "Waiver of the Service of Summons," because these forms comply with the requirements of FRCP 4(d).  These forms can be found on most US District Court websites in their Forms section.

            The plaintiff should send the defendant the following documents by first-class mail or other reliable means, preferably a means with tracking:

1.             one copy of the filed complaint,

2.             one copy of the Notice of Lawsuit and Request to Waive Service of a Summons,

3.             two copies of the Waiver of the Service of Summons, and

4.             a prepaid means for returning the form, preferably with tracking.

            Assuming that the defendant or its attorney signs the Waiver of the Service of Summons and returns it within the allowed time, then the plaintiff needs to file the executed Waiver within 120 days after the action was commenced.

            Notably with a foreign defendant, one of the incentives for a defendant to execute a Waiver of the Service of Summons is absent.  Should a domestic defendant refuse to execute a Waiver of Service upon request without good cause, the Court must impose on defendant the expenses later incurred in making service and the reasonable expenses, including attorney's fees, of any motion required to collect those service expenses.  FRCP 4(d)(2).  However, with a foreign defendant, the Court cannot impose those expenses.

- HP

[revised on October 15, 2014]