Rule 4 Summons

Contents; Amendments.

(1) Contents. A summons must:

(A) name the court and the parties;

(B) be directed to the defendant;

(C) state the name and address of the plaintiff’s attorney or—if unrepresented—of the plaintiff;

(D) state the time within which the defendant must appear and defend;

(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;

(F) be signed by the clerk; and

(G) bear the court’s seal.

(2) Amendments. The court may permit a summons to be amended.

Issuance. On or after the filing of the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summons, or a copy of the summons if addressed to multiple defendants, must be issued for each defendant to be served.

Service with Complaint; By Whom Made.

(1) A summons must be served together with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed under Rule 4(m) and must furnish to the person who makes service the necessary copies of the summons and complaint.

(2) Service may be made by any competent person who is not a party and who is at least 18 years of age.

Waiver of Service; Duty to Save Costs of Service;

Request to Waive.

(1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must:

(A) be in writing and be addressed directly:

(i) to the individual defendant; or

(ii) for a defendant subject to service under Rule 4(h), to an officer, resident agent, managing or general agent, or any other agent authorized by appointment or law to receive service of process;

(B) be sent by first-class mail or other reliable means;

(C) be accompanied by a copy of the complaint, an extra copy of the notice and request, and a prepaid means of returning defendant’s compliance in writing;

(D) inform the defendant of the consequences of waiving and not waiving service;

(E) state the date when the request is sent; and

(F) allow the defendant a reasonable time to return the waiver, which must be at least 30 days from the date on which the request is sent, or 60 days from that date if the defendant is addressed outside the Commonwealth.

(2) Failure to Waive. If a defendant located within the Commonwealth fails, without good cause, to sign and return a waiver requested by a plaintiff located within the Commonwealth, the court may impose on the defendant:

(A) the expenses later incurred in making service; and

(B) the reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses.

(3) Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent—or 90 days after it was sent to the defendant outside the Commonwealth.

(4) Results of Filing a Waiver. When the plaintiff files a waiver, the action must proceed, except as provided in Rule 4(d)(3), as if a summons and complaint had been served at the time of filing the waiver, and no proof of service must be required.

(5) [Reserved]

(6) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue. Service Upon Individuals Within a Jurisdiction of the United States. Unless otherwise provided by Commonwealth law, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served in any jurisdiction of the United States (including the Commonwealth) by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the court is located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving copies thereof at the individual’s dwelling or usual place of abode with a competent person age 18 or older who resides there; or

(C) delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.

Serving an Individual in a Foreign Country. Unless federal or Commonwealth law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served at a place not within any jurisdiction of the United States:

(1) by any internationally agreed means reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or

(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

(A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction; or

(B) as directed by the foreign authority in response to a letter rogatory or letter of request; or

(C) unless prohibited by the foreign country’s law, by:

(i) delivering a copy of the summons and of the complaint to the individual personally; or

(ii) using any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk to the party to be served; or

(3) by other means not prohibited by international agreement as may be directed by the court.

Serving a Minor or an Incompetent Person.

(1) Service upon a minor or an incompetent person in a jurisdiction of the United States must be made:

(A) by serving the summons and complaint upon any guardian ad litem appointed by the court; or

(B) by following state law for serving a summons or like process on such a defendant in an action brought in the courts of general jurisdiction of the state where service is made.

(2) A minor or an incompetent person who is not within the jurisdiction of the United States must be served in the manner prescribed by Rule 4(f)(2)(A) or (B) or by such means as the court may direct.

Serving a Corporation, Partnership, or Association. Unless otherwise provided by Commonwealth law or the defendant’s waiver has been filed, a domestic or foreign corporation (including public corporations organized and existing under the laws of the Commonwealth), or a partnership or other unincorporated association that is subject to suit under a common name, must be served:

(1) in a jurisdiction of the United States (including the Commonwealth):

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, a resident agent as stated on the last annual corporate report filed with the Registrar, or any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant; or

(C) in a place not within any jurisdiction of the United States in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under Rule 4(f)(2)(C)(i).

Serving the Commonwealth, and its Agencies, Corporations, Officers, or Employees.

(1) Commonwealth. To serve the Commonwealth, a party must:

(A) deliver a copy of the summons and the complaint to the attorney general or to an assistant attorney general or clerical employee of the office of the attorney general, at the office of the attorney general; or

(B) send a copy of the summons and the complaint by registered or certified mail addressed to the attorney general.

(2) Agency; Officer or Employees Sued in an Official Capacity. To serve an officer, agency or employee of the Commonwealth, a party must serve the Commonwealth in the manner prescribed by Rule 4(i)(1) and also send a copy of the summons and the complaint by registered or certified mail to the officer or agency.

(3) Officer or Employee Sued Individually. To serve a Commonwealth officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the Commonwealth’s behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the Commonwealth and also serve the officer or employee under Rule 4(e), (f), or (g).

(4) Extending Time. The court must allow a party a reasonable time to cure its failure to:

(A) serve a person required to be served under Rule 4(i)(2), if the party has served either the Commonwealth attorney or the Attorney General of the Commonwealth; or

(B) serve the Commonwealth under Rule 4(i)(3), if the party has served the Commonwealth officer or employee.

Serving a Foreign, State, or Local Government.

(1) Foreign State: A foreign state or a political subdivision, agency, or instrumentality must be served in accordance with 28 U.S.C. § 1608.

(2) State or Local Government. A state, territory, municipal corporation, or other governmental organization subject to suit must be served by:

(A) delivering a copy of the summons and the complaint to its chief executive officer; or

(B) serving the summons and complaint in the manner prescribed by the law of that state or territory for serving summons or like process on such a defendant.

Territorial Limits of Effective Service. All process may be served anywhere within the Commonwealth, and, when not prohibited by law, beyond the territorial limits of the Commonwealth.

Proof of Service.

(1) Affidavit Required. Unless service is waived, proof of service must be made to the court. Except for service by the Commonwealth marshal or a deputy marshal, proof must be by the server’s affidavit.

(2) Service outside the United States. Service not within any jurisdiction of the United States must be proved as follows:

(A) If made under Rule 4(f)(1), as provide in the applicable treaty or convention; or

(B) If made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee or other evidence satisfying the court that the summons and complaint were delivered to the addressee.

(3) Validity of Service; Amending Proof. Failure to prove service does not affect the validity of the service. The court may permit proof of service to be amended.

Time Limit for Service. If a defendant is not served within 120 days after the complaint is filed, the court, upon motion or on its own initiative after notice to the plaintiff, must dismiss the action without prejudice, or may direct that service be made within a specific time. However, the failure to make service within 120 days after the filing of the complaint must not be grounds for dismissal of the complaint as to a defendant once that defendant has been served. Further, if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period, and an extension must be freely given when justice so requires. Rule 4(m) does not apply to service in a foreign country pursuant to Rule 4(f) or

(j) (1).

Seizure of Property, Service of Summons Not Feasible. The court may assert jurisdiction over property if authorized by a Commonwealth statute. Notice to claimants of the property must be given as provided in the statute or by serving a summons under Rule 4.