What is a Waiver of Service?
A waiver of service is when a defendant agrees to save the plaintiff the time and expense for paying a court official or other legal party to serve a complaint. The defendant who waives service agrees to waive objections to not being served with a summons, but the party does not waive other objections pertinent to the lawsuit. Plaintiffs often request this type of waiver from the defendant in cases where both parties desire to reach a resolution in court. A defendant can refuse the request, which would require the plaintiff to serve the complaint and summons, using the methods allowed by court rules and procedures. If a defendant agrees to waive the service, then he must submit an answer within a specified period of time from when the request was sent.
Some court venues require defendants to act in good faith when they receive requests from plaintiffs for waiver of service. For example, Rule 4 of the Federal Rules of Civil Procedure in the United States requires a defendant to show good cause if he denies the waiver request from a plaintiff. A defendant who fails to show good cause often has to pay the expense of service that the plaintiff incurred. The purpose of the waiver of service in jurisdictions and court venues that implement similar civil rules of procedures is to cut down the costs needed to file a lawsuit. The rationale is that more people will have access to the court system because the costs associated with initiating a lawsuit will be lowered if getting a waiver is made easier for plaintiffs.
A defendant who grants a waiver of service risks a default judgment entered against him if he fails to serve an answer or motion in time. A plaintiff can ask a court to enter a default judgment if the defendant fails to respond to a complaint. A court often does so, and the defendant is obligated to fulfill the requirements of the final judgment unless the defendant can show good cause as to why the default judgment should be set aside. Court rules determine how many days a defendant has to submit an answer, which is often between 60 or 90 days from the date that the waiver was sent. A court clerk may enter a default judgment, but courts may need to conduct a hearing to determine issues related to damages.
Signing a waiver of service does not eliminate the defendant’s rights to waive objections to the court’s jurisdiction over a legal matter. For example, a defendant can still file a motion asking the case to be dismissed because the court lacks jurisdiction over her property or her person. It often requires the defendant to follow different rules of civil procedures instead of denying a request for a waiver.
One should be careful about waivers of service. It is not an uncommon for an attorney to agree to accept service for a client and then deny having ever done it, thus delaying the action as the plaintiff has to hire a process server or send a pleading through certified mail.
Once the initial pleading is filed, the defendant answers and all parties have attorneys of record in a case, the matter becomes easier as it is sufficient to send subsequent pleadings to the attorney of record. However, that initial pleading should almost always be served on the defendant in a proper manner. Of course, having a valid, signed waiver of service avoids the situation where the plaintiff relies on the good word of the defendant's attorney, but it wouldn't it be easier to simply serve a pleading in the usual manner?
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