[Form] RULE 4.7 NOTICE OF A LAWSUIT AND REQUEST TO WAIVE SERVICE OF SUMMONS.
(Caption)
To (name the defendant or - if the defendant is a corporation, partnership, or association - name an officer or agent authorized to receive service):
WHY ARE YOU GETTING THIS?
A lawsuit has been filed against you, or the entity you represent, in this court under the number shown above. A copy of the complaint is attached.
This is not a summons, or an official notice from the court. It is a request that, to avoid expenses, you waive formal service of a summons by signing and returning the enclosed waiver. To avoid these possible expenses, you must return the signed waiver within (give at least 28 days or at least 60 days if the defendant is outside the United States) from the date shown below, which is the date this notice was sent. Two copies of the waiver form are enclosed, along with a stamped, self-addressed envelope or other prepaid means for returning one copy. You may keep the other copy.
WHAT HAPPENS NEXT?
If you return the signed waiver, I will file it with the court. The action will then proceed as if you had been served on the date the waiver is filed, but no summons will be served on you and you will have 60 days from the date this notice is sent (see the date below) to answer the complaint (or 90 days if this notice is sent to you outside the United States).
If you do not return the signed waiver within the time indicated, I will arrange to have the summons and complaint served on you. And I will ask the court to require you, or the entity you represent, to pay the expenses of making service.
Please read the enclosed statement about the duty to avoid unnecessary expenses.
I certify that this request is being sent to you on the date below.
Date: _____________________
(Signature of the attorney or unrepresented party)
_____________________
(Printed name)
_____________________
(Address)
_____________________
(E-mail address)
_____________________
(Telephone number)
_____________________
[Form] RULE 4.7 WAIVER OF THE SERVICE OF SUMMONS . .
(Caption)
To (name the plaintiff's attorney or the unrepresented plaintiff):
I have received your request to waive service of a summons in this action along with a copy of the complaint, two copies of this waiver form, and a prepaid means of returning one signed copy of the form to you.
I, or the entity I represent, agree to save the expense of serving a summons and complaint in this case.
I understand that I, or the entity I represent, will keep all defenses or objections to the lawsuit, the court's jurisdiction, and the venue of the action, but that I waive any objections to the absence of a summons or of service.
I also understand that I, or the entity I represent, must file and serve an answer or a motion under Rule 12 within 60 days from _____________________, the date when this request was sent (or 90 days if it was sent outside the United States). If I fail to do so, a default judgment could be entered against me or the entity I represent.
Date: ______________________________________
(Signature of the attorney or unrepresented party)
________________________
(Printed name)
________________________
(Address)
________________________
(E-mail address)
________________________
(Telephone number)
________________________
(Attach the following)
DUTY TO AVOID UNNECESSARY EXPENSES OF SERVING A SUMMONS
Rule 4.7 of the Ohio Rules of Civil Procedure requires certain defendants to cooperate in saving unnecessary expenses of serving a summons and complaint. A defendant who is subject to the court's personal jurisdiction and who fails to return a signed waiver of service requested by a plaintiff may be required to pay the expenses of service, unless the defendant shows good cause for the failure.
"Good cause" does not include a belief that the lawsuit is groundless, or that it has been brought in an improper venue, or that the court has no jurisdiction over this matter or over the defendant or the defendant's property.
If the waiver is signed and returned, you can still make these and all other defenses and objections, but you cannot object to the absence of a summons or of service.
If you waive service, then you must, within the time specified on the waiver form, serve an answer or a motion under Rule 12 on the plaintiff and file a copy with the court. By signing and returning the waiver form, you are allowed more time to respond than if a summons had been served.
Ohio. Civ.R. 4.7
Staff Note (July 1, 2022 Amendment)
Division (B) is amended to eliminate this method of service for domestic relations cases as well as civil protection order cases. The additional time required to obtain a waiver, and the automatic extension of Answer Day interject too much delay in these categories of cases.
Staff Notes (July 1, 2020)
Rule 4.7 is based on the federal rule permitting waiver of service. Paragraph (A) states what the present rule implies: the defendant has a duty to avoid costs associated with the service of a summons not needed to inform the defendant regarding the commencement of an action. The text of the rule also sets forth the requirements for a Notice and Request for Waiver sufficient to put the cost-shifting provision in place. These requirements are illustrated in the forms appended to the rule. Pursuant to Rule 4(D), only those persons who are identified in Rule 4.2 and who are eighteen years of age or older and not under a disability may waive service.
Paragraph (A)(7) permits the use of alternatives to the United States mails in sending the Notice and Request. While private messenger services or electronic communications may be more expensive than the mail, they may be equally reliable and on occasion more convenient to the parties. Especially with respect to transmissions to foreign countries, alternative means may be desirable, for in some countries facsimile transmission or electronic mail are the most efficient and economical means of communication. If electronic means such as facsimile transmission or electronic mail are employed, the sender should maintain a record of the transmission to assure proof of transmission if receipt is denied, but a party receiving such a transmission has a duty to cooperate and cannot avoid liability for the resulting cost of formal service if the transmission is prevented at the point of receipt.
A defendant failing to comply with a request for waiver shall be given an opportunity to show good cause for the failure, which is the case under paragraph (B), but sufficient cause should be rare. It is not a good cause for failure to waive service that the claim is unjust or that the court lacks jurisdiction. Sufficient cause not to shift the cost of service would exist, however, if the defendant did not receive the request or was insufficiently literate in English to understand it. It should be noted that the provisions for shifting the cost of service apply only if the defendant is subject to the court's personal jurisdiction.
Paragraph (C) is a cost-shifting provision. The costs that may be imposed on the defendant could include, for example, the cost of the time of a process server required to make contact with a defendant residing in a guarded apartment house or residential development. The paragraph is explicit that the costs of enforcing the cost-shifting provision are themselves recoverable from a defendant who fails to return the waiver. In the absence of such a provision, the purpose of the rule would be frustrated by the cost of its enforcement, which is likely to be high in relation to the small benefit secured by the plaintiff.
Paragraph (D) extends the time for answer if, before being served with process, the defendant waives formal service. The extension is intended to serve as an inducement to waive service and to assure that a defendant will not gain any delay by declining to waive service and thereby causing the additional time needed to effect service. By waiving service, a defendant is not called upon to respond to the complaint until 60 days from the date the notice was sent to it-90 days if the notice was sent to a foreign country-rather than within the 28-day period from date of service specified in Rule 12.
Paragraph (E) clarifies the effective date of service when service is waived. The device of requested waiver of service is not suitable if a limitations period which is about to expire is not tolled by filing the action. Unless there is ample time, the plaintiff should proceed directly to the formal methods for service identified in Rules 4-4.6.
The procedure of requesting waiver of service should also not be used if the time for service under Rule 4(E) will expire before the date on which the waiver must be returned. The court could refuse a request for additional time unless the plaintiff can demonstrate good cause as to why service was not made within that period. It may be noted that the presumptive time limit for service under Rule 4(E) does not apply to out-of-state service or service in a foreign country.
Paragraph (F) of Rule 4.7 is explicit that a timely waiver of service of a summons does not prejudice the right of a defendant to object by means of a motion authorized by Rule 12(B) to the absence of jurisdiction, or to assert improper venue under Rule 12(B)(3). The only issues eliminated are those involving the sufficiency of the summons or the sufficiency of the method by which it is served.
