The duty to avoid unnecessary expenses
Rule 4(d)(1) states that an individual, corporation, or association subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. To trigger that duty, the plaintiff sends a written request that the defendant waive service. Waiver is not a favor asked in the dark: the rule prescribes exactly what the request must contain, and courts enforce the cost-shifting penalty when a domestic defendant ignores a properly formed request.
What the request must contain
- It must be in writing and addressed to the defendant, or to an officer or agent authorized to receive service for an entity.
- It must name the court where the complaint was filed and be accompanied by a copy of the complaint, two copies of the waiver form, and a prepaid means for returning the form.
- It must inform the defendant of the consequences of waiving and of not waiving service.
- It must state the date the request is sent.
- It must give the defendant at least 30 days after the request was sent — 60 days if sent to a defendant outside any judicial district of the United States — to return the waiver.
- It must be sent by first-class mail or other reliable means.
In practice these elements are satisfied with two official federal forms: the Notice of a Lawsuit and Request to Waive Service of a Summons (AO 398) and the Waiver of the Service of Summons (AO 399).
The 30-day and 60-day response windows
The clock runs from the date the request was sent, not the date it was received. A domestic defendant gets a minimum of 30 days; a defendant addressed outside the United States gets a minimum of 60 days. Nothing prevents a plaintiff from allowing more time, and a generous window makes it harder for a defendant to argue good cause for failing to respond.
The benefit for the defendant: extra time to answer
This is the trade the rule offers. A defendant who is formally served has 21 days to respond to the complaint. A defendant who timely returns a waiver has 60 days from the date the request was sent — and 90 days if the request was sent outside the United States. Rule 4(d)(5) also confirms that waiving service waives no objection to personal jurisdiction or venue; only the objection to the absence of a summons or of service is given up.
The cost of refusing: Rule 4(d)(2)
If a defendant located within the United States fails to return a signed waiver without good cause, the court must impose on that defendant the expenses later incurred in effecting service and the reasonable attorney's fees of any motion required to collect those expenses. Costs of a process server, skip tracing, or substituted service can quickly exceed the cost of a stamp — which is why declining a waiver is rarely a sound strategic choice for a domestic defendant.
If the waiver is returned — and if it isn't
When the plaintiff files a returned waiver, service is treated as made on the filing date and proof of service is not required. When no waiver comes back, the plaintiff still must serve the defendant under Rule 4(e), (f), or (h) within the Rule 4(m) time limit, and should preserve a clear record of when and how the request was sent — the foundation of any later motion for service expenses.
How Send Waiver App handles the process
Send Waiver App assembles the AO 398 notice and two AO 399 waivers with your caption, court, and attorney block; enforces the 30-day and 60-day minimums; emails or certified-mails the packet with the complaint and summons attached; lets the defendant execute the waiver online with a link or access code, or upload a photo of the signed form for free; and issues a timestamped certificate of emailing and non-response if the window closes in silence.
Frequently asked questions
- What is a waiver of service under Rule 4(d)?
- Rule 4(d) lets a plaintiff ask a defendant to waive formal service of a summons. The plaintiff mails or emails a Notice of Lawsuit and Request to Waive Service of Summons (Form AO 398) with two copies of the waiver (Form AO 399). If the defendant signs and returns the waiver, no process server is needed and the case proceeds as though the summons had been served.
- How long does a defendant have to return the waiver?
- The request must give the defendant a reasonable time to return it: at least 30 days from the date the request was sent, or at least 60 days if the defendant is addressed outside any judicial district of the United States.
- Does waiving service waive any defenses?
- No. A defendant who waives service does not waive any objection to personal jurisdiction or to venue. The only thing given up is an objection to the absence of a summons or of service.
- How much extra time does a defendant get for answering?
- A defendant who timely returns a waiver need not answer the complaint until 60 days after the request was sent — 90 days if the request went to a defendant outside the United States — instead of the usual 21 days after service.
- What happens if the defendant refuses to waive service?
- Under Rule 4(d)(2), a court must impose on a United States defendant who fails to return a waiver without good cause the expenses later incurred in making service, plus reasonable attorney's fees for any motion required to collect those expenses.