Commencement of a Civil Lawsuit

Title II, Rule 3 to Rule 6 of the Federal Rules of Civil Procedure deals with commencement of civil suits.  A civil suit is commenced by filing a complaint with the court.  Rule 4 deals with service of summons.  The summons must be directed to the defendant and notify the defendant that a failure to appear and defend will result in a default judgment.  The summons must state name of the court and parties, name and address of the plaintiff’s attorney or plaintiff, the time within which the defendant must appear and defend.  The summons must be signed by the clerk and bear the court’s seal.  A summons must be served with a copy of the complaint.

The defendant who is an individual within the judicial district of the United States or in a foreign country or an association or corporation or partnership has a duty to avoid unnecessary expenses of serving the summons.  The plaintiff must notify the defendant that an action has been commenced and request the defendant to waive the service of summons.  If the defendant fails to sign and return a waiver requested by a plaintiff, the court must impose on the defendant the expenses incurred including attorney’s fees of any motion required to collect those service expenses.  A defendant who timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent–or until 90 days after it was sent to the defendant outside any judicial district of the United States.

According to Rule 4 (g), a minor or an incompetent person in a judicial district of the United States must be served by following state law for serving a summons.  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).

Proof of service by an affidavit of the server must be made to the court, unless service is waived.  However, failure to prove service does not affect the validity of service.    

If summons is not served on a defendant within 120 days after the complaint is filed, the court must dismiss the action without prejudice against that defendant or order that service be made within a specified time.  However, if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.


Inside Commencement of a Civil Lawsuit