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What is a Waiver of Process?

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  • Written By: M. Lupica
  • Edited By: John Allen
  • Last Modified Date: 19 November 2016
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    Conjecture Corporation
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Generally, anyone against whom a legal action is being taken has a right to service of process in the manner prescribed by his or her jurisdiction. A waiver of process is a defendant’s formal waiver of that right. Service of process is typically made in person by a third party, directly to the person who is to be served, though jurisdictions have enacted certain rules to make it easier for plaintiffs to serve defendants. In the event that the plaintiff has special difficulty executing proper service of process on the defendant because of particular circumstances, he or she may request that the defendant make a waiver of process. The defendant has a duty to waive such process if the circumstances dictate, and if he or she refuses to comply the court may later impose on the defendant the costs of service that the plaintiff had to pay due to the defendant’s failure to waive.

The specific rules for proper service of process vary from jurisdiction to jurisdiction. However, they commonly require that the plaintiff hire a third party to present to the defendant the summons along with a copy of the complaint that describes the charges to the defendant in person. Some jurisdictions have deemed certain methods of mailing to be sufficient in serving the defendant with process. Otherwise, the plaintiff will have to seek a waiver of process to commence the action.

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In some circumstances the defendant may not be easily reached through any of the methods the jurisdiction allows to appropriately serve process. For example, he or she may have several different households in different locations that he or she resides in at different times. Alternatively, the defendant could reside in the country in which the plaintiff is filing the case, but is presently elsewhere for business in a country where serving the defendant would be particularly expensive or difficult. These are the types of circumstances that dictate that the plaintiff agree to a waiver of process.

A waiver of process has certain requirements, the specifics of which depend on the jurisdiction in which the case was filed. Generally, it must be in writing and state with certainty that the defendant has the capacity to waive process, understands the charges against him or her, and is voluntarily waiving process. If the circumstances are so unfair to the plaintiff that he or she cannot serve process with reasonable expense, he or she formally requests a waiver, and the defendant fails to comply, then the court may later require that the defendant reimburse the plaintiff for the costs incurred in executing service of process after the defendant’s denial of the waiver.

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