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Rule 4.05 – Waiving Service of Summons

May 13, 2021 | Civil Procedure, Minnesota

(a) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4.03 has a duty to avoid unnecessary expenses of serving the summons. A plaintiff may request that the defendant waive service of a summons. The notice and request must:

(1) be in writing and be addressed:

(A) to the individual defendant: or
(B) for a defendant subject to service under Rule 4.03(b)-(e) to the agent

authorized to receive service:

(2) be accompanied by a copy of the complaint, two copies of Form 22B or a substantially sjmilar form, and a prepaid means for returning a signed copy of the form:
(3) inform a defendant using Form 22B or a substantially similar form, of the consequences of waiving and not waiving service:
(4) state the date when the request is sent:
(5) give a defendant 30 days after the request was sent-or 60 days if sent to a defendant outside the United States-to return the waiver: and
(6) be sent by first-class mail or other reliable means.
(b) Failure to Waive. If a defendant located within the United States fails. without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant:

(1) the expenses later incurred in making service: and
(2) the reasonable expenses, including attorney’s fees, of any motion required to collect fliose service expenses.
(c) Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a signed waiver need not serve an answer to the complaint until 60 days after the request was sent to that defendant-or until 90 days after it was sent to that defendant outside the United States.
(d) Results of Filing of a Waiver. When a plaintiff files a waiver of service. proof of service is not required and these rules apply as if a summons and complaint had been served on the date of signing of the waiver.
(e) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.

Minn. R. Civ. P. 4.05

Amended effective July 1, 2018.

Advisory Committee Comment-2018 Amendments

Rule 4.05 is completely revamped to replace the somewhat unreliable procedure relying on the “Acknowledgement of Service” form with a more straightforward procedure, used in federal court since 1993, relying on a “Waiver of Service “form. New Rule 4.05 is modeled closely on its federal counterpart.

The former procedure created the illusion that valid service could be accomplished by U.S. Mail, but it was a procedure that gave control over the process completely to the defendant and little iruentive to a plaintiff to make use of it. This rule does not authorize service by mere mailing-it is necessary for the defendant to waive formal service and return the waiver-of-service form. Service is accomplished and proven by the waiver, not the mailing. Additionally, the new procedure is not limited to delivery by mail or any other means expressly authorized by these rules-it allows valid service to be accomplished by any means that is agreed to the deferuUmt being served-mail, private courier, email, or even social media would all be acceptable if the defendant agreed to waive service under this rule. The only requirement is that the defendant sign and return a waiver-of-service form.