Waiver of Service of Process: Deadlines, Costs, and Limits

A waiver of service of process is a Federal Rule of Civil Procedure 4(d) procedure that lets a defendant in a federal lawsuit skip formal delivery of a summons by signing a written acknowledgment instead. The plaintiff mails the complaint along with a request to waive service; if the defendant signs and returns it, no process server or U.S. Marshal is needed. In exchange, the defendant gets substantially more time to answer the complaint. A defendant who refuses without good cause can be ordered to pay the costs of formal service.¹

Who Can Be Asked to Waive

The waiver option is available for defendants who would otherwise be served under Rule 4(e), (f), or (h): individuals, corporations, partnerships, and associations. The rule places a duty on these defendants to avoid unnecessary service expenses, which is what gives the waiver mechanism its force.¹

Several categories of defendant are off-limits. You cannot request a waiver from the United States, a federal agency, or a federal officer sued in an official capacity. Foreign governments and entities served under Rule 4(j) are also excluded. Minors and people deemed legally incompetent cannot be asked to waive either; they must be served formally through a guardian or other fiduciary.¹

What the Plaintiff Must Send

Rule 4(d)(1) sets seven requirements for a valid waiver request. The request must be in writing and addressed to the individual defendant or, for a business, to an officer or agent authorized to accept service. It must name the court, state the date it was sent, and include a copy of the complaint, two copies of the waiver form, and a prepaid means of returning the signed waiver. It must explain the consequences of waiving and of refusing, using the form appended to Rule 4. And it must be sent by first-class mail or another reliable delivery method, with at least 30 days for a domestic defendant to respond, or 60 days for a defendant abroad.¹

The federal courts publish standardized forms for this. Form AO 398 is the “Notice of a Lawsuit and Request to Waive Service of a Summons” that the plaintiff sends.² Form AO 399 is the “Waiver of the Service of Summons” that the defendant signs and returns.³ Prepare one set for each defendant you’re suing.⁴

The consequence-notification piece is where plaintiffs most often slip. The defendant has to understand from the paperwork itself that refusing could cost them money, and courts are reluctant to shift costs later if that warning was missing.¹

Deadlines on Both Sides

A domestic defendant has at least 30 days from the date the request was sent to return the signed waiver. A defendant outside the United States gets at least 60 days. Those are floors; a plaintiff can offer more time but not less.¹

The reward for cooperating is a longer window to answer the complaint. A defendant who signs the waiver has 60 days from the date the request was sent to file an answer, instead of the usual 21 days after formal service. A defendant abroad gets 90 days.¹

Once the signed waiver comes back, the plaintiff files it with the court. From there, the case proceeds as if the summons and complaint had been formally served on the filing date, and no separate proof of service is required.¹

What Signing Does Not Give Up

Signing a waiver of service does not waive any objection to personal jurisdiction or to venue. The defendant is agreeing to skip the formality of being handed papers by a process server, nothing more. Every substantive defense remains available, including arguments that the court lacks authority over the defendant or that the case belongs in a different district.¹

Some defendants refuse the waiver because they think signing concedes something about the merits or the court’s power. It doesn’t. The waiver covers delivery and only delivery.

What Refusing Costs

If a domestic defendant refuses to return the waiver without good cause, and the plaintiff is also in the United States, the court must order the defendant to pay the expenses of formal service plus reasonable attorney’s fees for any motion needed to collect those costs. The judge has no discretion to decline once the conditions are met.¹

How much that bill runs depends on how service happens. The U.S. Marshals Service charges $45 per hour per employee for personal service, plus travel and out-of-pocket expenses.⁵ Private process servers commonly charge between $20 and $100 for routine delivery, with fees rising for hard-to-locate defendants or repeat attempts. Attorney’s fees for the collection motion can easily exceed the service costs themselves. The cost shift applies regardless of who ultimately wins the case.

Good cause is read narrowly. Courts generally accept it only when the defendant can show they never actually received the request. Wanting to delay the case, hoping it goes away, or simply ignoring the mail does not qualify.

Foreign defendants are not subject to this penalty. A defendant located outside the United States can decline a waiver request with no cost consequences, and the plaintiff absorbs the expense of formal international service.¹

When to Skip the Waiver and Serve Formally

Sending a waiver request does not stop the statute of limitations from running, and filing the complaint by itself does not always toll it either. If the defendant never signs, the case cannot move forward until formal service is completed, and the weeks spent waiting on a waiver response are weeks the clock keeps running. The Advisory Committee Notes to Rule 4 call the waiver procedure “not suitable” when a limitations period is about to expire. In that situation, arrange formal service under Rule 4(e), (f), or (h) immediately instead.¹

A separate clock runs even when limitations is not a concern. Under Rule 4(m), if a defendant is not served within 90 days after the complaint is filed, the court must dismiss the action without prejudice or set a new service deadline, unless the plaintiff shows good cause for the delay.¹ A plaintiff who waits several weeks after filing before mailing the waiver request may not have enough cushion to pivot to formal service if the defendant stays silent. Sending the request promptly after filing is the practical way to keep both options open. The 90-day deadline does not apply to defendants being served in a foreign country.

1
Legal Information Institute. Federal Rules of Civil Procedure Rule 4 – Summons
2
United States Courts. Notice of a Lawsuit and Request to Waive Service of a Summons
3
United States Courts. Waiver of the Service of Summons
4
United States District Court for the Middle District of Pennsylvania. Instructions for Completing AO 398 and AO 399
5
Federal Register. Revision to United States Marshals Service Fees for Services