Service of Process

What happens at this stage

After filing your complaint and getting summons issued, you must formally deliver (serve) the lawsuit on each defendant. This isn’t optional and it isn’t a formality — it’s a constitutional requirement. A defendant has a due process right to know they’ve been sued.

Until a defendant is properly served, the court has no power over them.

How to serve

Federal Rule of Civil Procedure 4 governs service. The rules differ depending on who you’re serving:

Individual defendants (officers)

You can serve an individual by:

• Personal service — hand-delivering the summons and complaint to the defendant
• Leaving copies — at the defendant’s dwelling with someone of suitable age who lives there
• State law methods — whatever your state allows for personal service
• Waiver of service — mailing a request to the defendant asking them to accept service voluntarily (Rule 4(d))

You cannot serve the defendant yourself. A process server, the U.S. Marshals (if IFP), or any person over 18 who isn’t a party can serve.

Municipal defendants (the city)

Under Rule 4(j), you serve a municipality by delivering the summons and complaint to the city’s chief executive officer or by serving the city in the manner prescribed by state law. In practice, this usually means serving the city attorney or city secretary.

Check your local rules — some municipalities have specific requirements.

Waiver of service (save money, gain time)

Rule 4(d) lets you mail a formal request asking each defendant to waive personal service. If they agree:

• You save the cost of a process server
• The defendant gets 60 days to respond (instead of 21)
• The defendant avoids paying the costs of service

If they refuse without good cause, the court can order them to pay your service costs. Government defendants almost always accept waiver requests — their lawyers know the rules.

Pro tip: Send waiver requests to individual officers through the city attorney’s office. The city attorney represents them and will coordinate.

The 90-day deadline

You have 90 days from filing to serve each defendant (Rule 4(m)). If you miss this deadline, the court can:

• Dismiss the defendant without prejudice (you can re-serve if still within the statute of limitations)
• Grant an extension if you show good cause

“I didn’t know about the deadline” is not good cause. “The U.S. Marshals lost the paperwork” might be.

IFP plaintiffs and the Marshals

If you’re proceeding IFP, the court typically directs the U.S. Marshals to serve on your behalf (Rule 4(c)(3)). This sounds helpful, but:

• The Marshals are understaffed and slow
• They may not prioritize your case
• You’re still responsible for the 90-day deadline

Follow up. Call the Marshals office. Confirm service was completed. Get proof of service filed on the docket. Don’t assume it happened.

Proof of service

After service is complete, you (or whoever served) must file proof of service with the court — typically an affidavit or declaration describing how and when each defendant was served.

Without proof of service on the docket, the court may treat the defendant as unserved.

Common mistakes

• Serving the wrong person — serving a random employee at city hall doesn’t count. You need the designated agent.
• Missing the 90-day deadline — especially with multiple defendants. Track each one separately.
• Not following up on Marshals service — IFP plaintiffs lose defendants this way.
• Forgetting to file proof — service happened but the court doesn’t know about it.
• Not serving all defendants — if your complaint names 5 defendants, you need 5 separate services.

What to expect

Service is mechanical but unforgiving. It’s paperwork, not argument. But if you get it wrong, your case stalls or defendants get dismissed. Do it early, track it carefully, and file proof immediately.

Once all defendants are served, the clock starts ticking on their response — and you enter the next phase.

Timeline

• 90 days to complete service from date of filing
• 21 days for defendant to respond after personal service
• 60 days for defendant to respond after waiver of service