Harding, Linda et al v. Oneida County et al

Filing 4

ORDER that plaintiffs are to serve their complaint on defendants promptly. They should file proof of service of their complaint as soon as they have served each defendant. By May 8, 2012, plaintiffs are to file proof of service of their complaint on the defendants or tell the court why they cannot do so. Signed by Magistrate Judge Stephen L. Crocker on 3/12/2012. (Attachments: # 1 Procedure for serving individuals, # 2 Notice of lawsuit form, # 3 Waiver of summons form, # 4 Federal Rule of Civil Procedure 4, # 5 Wisconsin Statutes 801, # 6 Oneida County Summons) (jef),(ps)

RULES OF CIVIL PROCEDURE
FOR THE

UNITED STATES DISTRICT COURTS 1
Effective September 16, 1938, as amended to December 1, 2010

TITLE I. SCOPE OF RULES; FORM OF ACTION
Rule 1. Scope and Purpose
These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in
Rule 81. They should be construed and administered to secure the
just, speedy, and inexpensive determination of every action and
proceeding.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July
1, 1966; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 2. One Form of Action
There is one form of action—the civil action.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
TITLE II. COMMENCING AN ACTION; SERVICE OF PROCESS,
PLEADINGS, MOTIONS, AND ORDERS
Rule 3. Commencing an Action
A civil action is commenced by filing a complaint with the
court.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 4. Summons
(a) 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.
1 Title

amended December 29, 1948, effective October 20, 1949.

(1)

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(b) ISSUANCE. On or after filing 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 a summons that is addressed to multiple defendants—must
be issued for each defendant to be served.
(c) SERVICE.
(1) In General. A summons must be served with a copy of the
complaint. The plaintiff is responsible for having the summons
and complaint served within the time allowed by Rule 4(m)
and must furnish the necessary copies to the person who
makes service.
(2) By Whom. Any person who is at least 18 years old and not
a party may serve a summons and complaint.
(3) By a Marshal or Someone Specially Appointed. At the plaintiff’s request, the court may order that service be made by a
United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the
plaintiff is authorized to proceed in forma pauperis under 28
U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.
(d) WAIVING SERVICE.
(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:
(i) to the individual defendant; or
(ii) for a defendant subject to service under Rule 4(h),
to an officer, a managing or general agent, or any
other agent authorized by appointment or by law to receive service of process;
(B) name the court where the complaint was filed;
(C) be accompanied by a copy of the complaint, 2 copies
of a waiver form, and a prepaid means for returning the
form;
(D) inform the defendant, using text prescribed in Form
5, of the consequences of waiving and not waiving service;
(E) state the date when the request is sent;
(F) give the defendant a reasonable time of at least 30
days after the request was sent—or at least 60 days if sent
to the defendant outside any judicial district of the United
States—to return the waiver; and
(G) be sent by first-class mail or other reliable means.
(2) 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:
(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

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Rule 4

serve an answer to the complaint until 60 days after the request was sent—or until 90 days after it was sent to the defendant outside any judicial district of the United States.
(4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not required and these rules apply as if
a summons and complaint had been served at the time of filing
the waiver.
(5) Jurisdiction and Venue Not Waived. Waiving service of a
summons does not waive any objection to personal jurisdiction or to venue.
(e) SERVING AN INDIVIDUAL WITHIN A JUDICIAL DISTRICT OF THE
UNITED STATES. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person
whose waiver has been filed—may be served in a judicial district
of the United States by:
(1) following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where the
district 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 a copy of each at the individual’s dwelling or
usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
(f) SERVING AN INDIVIDUAL IN A FOREIGN COUNTRY. Unless federal
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 judicial district of the United
States:
(1) by any internationally agreed means of service that is
reasonably calculated to give notice, such as those authorized
by the Hague Convention on the Service Abroad of Judicial
and Extrajudicial Documents;
(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;
(B) as the foreign authority directs 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 that the clerk addresses
and sends to the individual and that requires a signed
receipt; or
(3) by other means not prohibited by international agreement, as the court orders.
(g) SERVING A MINOR OR AN INCOMPETENT PERSON. A minor or an
incompetent person in a judicial district of the United States
must be served by following state law for serving a summons or
like process on such a defendant in an action brought in the

Rule 4

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4

courts of general jurisdiction of the state where service is made.
A minor or an incompetent person who is not within any judicial
district of the United States must be served in the manner prescribed by Rule 4(f)(2)(A), (f)(2)(B), or (f)(3).
(h) SERVING A CORPORATION, PARTNERSHIP, OR ASSOCIATION. Unless federal law provides otherwise or the defendant’s waiver has
been filed, a domestic or foreign corporation, or a partnership or
other unincorporated association that is subject to suit under a
common name, must be served:
(1) in a judicial district of the United States:
(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, or any
other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized
by statute and the statute so requires—by also mailing a
copy of each to the defendant; or
(2) at a place not within any judicial district of the United
States, in any manner prescribed by Rule 4(f) for serving an
individual, except personal delivery under (f)(2)(C)(i).
(i) SERVING THE UNITED STATES AND ITS AGENCIES, CORPORATIONS, OFFICERS, OR EMPLOYEES.
(1) United States. To serve the United States, a party must:
(A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where
the action is brought—or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk—or
(ii) send a copy of each by registered or certified mail to
the civil-process clerk at the United States attorney’s office;
(B) send a copy of each by registered or certified mail to
the Attorney General of the United States at Washington,
D.C.; and
(C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by
registered or certified mail to the agency or officer.
(2) Agency; Corporation; Officer or Employee Sued in an Official
Capacity. To serve a United States agency or corporation, or
a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a
copy of the summons and of the complaint by registered or
certified mail to the agency, corporation, officer, or employee.
(3) Officer or Employee Sued Individually. To serve a United
States officer or employee sued in an individual capacity for
an act or omission occurring in connection with duties performed on the United States’ behalf (whether or not the officer
or employee is also sued in an official capacity), a party must
serve the United States 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 United States attorney or the Attorney General of the United States; or

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(B) serve the United States under Rule 4(i)(3), if the
party has served the United States officer or employee.
(j) SERVING A FOREIGN, STATE, OR LOCAL GOVERNMENT.
(1) Foreign State. A foreign state or its political subdivision,
agency, or instrumentality must be served in accordance with
28 U.S.C. § 1608.
(2) State or Local Government. A state, a municipal corporation, or any other state-created governmental organization
that is subject to suit must be served by:
(A) delivering a copy of the summons and of the complaint to its chief executive officer; or
(B) serving a copy of each in the manner prescribed by
that state’s law for serving a summons or like process on
such a defendant.
(k) TERRITORIAL LIMITS OF EFFECTIVE SERVICE.
(1) In General. Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:
(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;
(B) who is a party joined under Rule 14 or 19 and is
served within a judicial district of the United States and
not more than 100 miles from where the summons was issued; or
(C) when authorized by a federal statute.
(2) Federal Claim Outside State-Court Jurisdiction. For a claim
that arises under federal law, serving a summons or filing a
waiver of service establishes personal jurisdiction over a defendant if:
(A) the defendant is not subject to jurisdiction in any
state’s courts of general jurisdiction; and
(B) exercising jurisdiction is consistent with the United
States Constitution and laws.
(l) PROVING SERVICE.
(1) Affidavit Required. Unless service is waived, proof of service must be made to the court. Except for service by a United
States marshal or deputy marshal, proof must be by the server’s affidavit.
(2) Service Outside the United States. Service not within any
judicial district of the United States must be proved as follows:
(A) if made under Rule 4(f)(1), as provided 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 by 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 service. The court may permit proof of service to be amended.
(m) TIME LIMIT FOR SERVICE. If a defendant is not served within
120 days after the complaint is filed, the court—on motion or on
its own after notice to the plaintiff—must dismiss the action
without prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good cause

Rule 4.1

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6

for the failure, the court must extend the time for service for an
appropriate period. This subdivision (m) does not apply to service
in a foreign country under Rule 4(f) or 4(j)(1).
(n) ASSERTING JURISDICTION OVER PROPERTY OR ASSETS.
(1) Federal Law. The court may assert jurisdiction over property if authorized by a federal statute. Notice to claimants of
the property must be given as provided in the statute or by
serving a summons under this rule.
(2) State Law. On a showing that personal jurisdiction over
a defendant cannot be obtained in the district where the action is brought by reasonable efforts to serve a summons
under this rule, the court may assert jurisdiction over the defendant’s assets found in the district. Jurisdiction is acquired
by seizing the assets under the circumstances and in the manner provided by state law in that district.
(As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July
1, 1966; Apr. 29, 1980, eff. Aug. 1, 1980; Pub. L. 97–462, § 2, Jan. 12,
1983, 96 Stat. 2527, eff. Feb. 26, 1983; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1, 2000; Apr.
30, 2007, eff. Dec. 1, 2007.)
Rule 4.1. Serving Other Process
(a) IN GENERAL. Process—other than a summons under Rule 4 or
a subpoena under Rule 45—must be served by a United States marshal or deputy marshal or by a person specially appointed for that
purpose. It may be served anywhere within the territorial limits
of the state where the district court is located and, if authorized
by a federal statute, beyond those limits. Proof of service must be
made under Rule 4(l).
(b) ENFORCING ORDERS: COMMITTING FOR CIVIL CONTEMPT. An
order committing a person for civil contempt of a decree or injunction issued to enforce federal law may be served and enforced
in any district. Any other order in a civil-contempt proceeding
may be served only in the state where the issuing court is located
or elsewhere in the United States within 100 miles from where the
order was issued.
(As added Apr. 22, 1993, eff. Dec. 1, 1993; amended Apr. 30, 2007, eff.
Dec. 1, 2007.)
Rule 5. Serving and Filing Pleadings and Other Papers
(a) SERVICE: WHEN REQUIRED.
(1) In General. Unless these rules provide otherwise, each of
the following papers must be served on every party:
(A) an order stating that service is required;
(B) a pleading filed after the original complaint, unless
the court orders otherwise under Rule 5(c) because there
are numerous defendants;
(C) a discovery paper required to be served on a party,
unless the court orders otherwise;
(D) a written motion, except one that may be heard ex
parte; and
(E) a written notice, appearance, demand, or offer of
judgment, or any similar paper.
(2) If a Party Fails to Appear. No service is required on a
party who is in default for failing to appear. But a pleading

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Rule 5

that asserts a new claim for relief against such a party must
be served on that party under Rule 4.
(3) Seizing Property. If an action is begun by seizing property
and no person is or need be named as a defendant, any service
required before the filing of an appearance, answer, or claim
must be made on the person who had custody or possession of
the property when it was seized.
(b) SERVICE: HOW MADE.
(1) Serving an Attorney. If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party.
(2) Service in General. A paper is served under this rule by:
(A) handing it to the person;
(B) leaving it:
(i) at the person’s office with a clerk or other person
in charge or, if no one is in charge, in a conspicuous
place in the office; or
(ii) if the person has no office or the office is closed,
at the person’s dwelling or usual place of abode with
someone of suitable age and discretion who resides
there;
(C) mailing it to the person’s last known address—in
which event service is complete upon mailing;
(D) leaving it with the court clerk if the person has no
known address;
(E) sending it by electronic means if the person consented in writing—in which event service is complete upon
transmission, but is not effective if the serving party
learns that it did not reach the person to be served; or
(F) delivering it by any other means that the person consented to in writing—in which event service is complete
when the person making service delivers it to the agency
designated to make delivery.
(3) Using Court Facilities. If a local rule so authorizes, a party
may use the court’s transmission facilities to make service
under Rule 5(b)(2)(E).
(c) SERVING NUMEROUS DEFENDANTS.
(1) In General. If an action involves an unusually large number of defendants, the court may, on motion or on its own,
order that:
(A) defendants’ pleadings and replies to them need not be
served on other defendants;
(B) any crossclaim, counterclaim, avoidance, or affirmative defense in those pleadings and replies to them will be
treated as denied or avoided by all other parties; and
(C) filing any such pleading and serving it on the plaintiff constitutes notice of the pleading to all parties.
(2) Notifying Parties. A copy of every such order must be
served on the parties as the court directs.
(d) FILING.
(1) Required Filings; Certificate of Service. Any paper after the
complaint that is required to be served—together with a certificate of service—must be filed within a reasonable time
after service. But disclosures under Rule 26(a)(1) or (2) and the
following discovery requests and responses must not be filed

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8

until they are used in the proceeding or the court orders filing: depositions, interrogatories, requests for documents or
tangible things or to permit entry onto land, and requests for
admission.
(2) How Filing Is Made—In General. A paper is filed by delivering it:
(A) to the clerk; or
(B) to a judge who agrees to accept it for filing, and who
must then note the filing date on the paper and promptly
send it to the clerk.
(3) Electronic Filing, Signing, or Verification. A court may, by
local rule, allow papers to be filed, signed, or verified by electronic means that are consistent with any technical standards
established by the Judicial Conference of the United States. A
local rule may require electronic filing only if reasonable exceptions are allowed. A paper filed electronically in compliance with a local rule is a written paper for purposes of these
rules.
(4) Acceptance by the Clerk. The clerk must not refuse to file
a paper solely because it is not in the form prescribed by these
rules or by a local rule or practice.
(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 30, 1970, eff. July
1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr.
23, 1996, eff. Dec. 1, 1996; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 23, 2001,
eff. Dec. 1, 2001; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec.
1, 2007.)
Rule 5.1. Constitutional Challenge to a Statute—Notice, Certification, and Intervention
(a) NOTICE BY A PARTY. A party that files a pleading, written
motion, or other paper drawing into question the constitutionality of a federal or state statute must promptly:
(1) file a notice of constitutional question stating the question and identifying the paper that raises it, if:
(A) a federal statute is questioned and the parties do not
include the United States, one of its agencies, or one of its
officers or employees in an official capacity; or
(B) a state statute is questioned and the parties do not
include the state, one of its agencies, or one of its officers
or employees in an official capacity; and
(2) serve the notice and paper on the Attorney General of the
United States if a federal statute is questioned—or on the
state attorney general if a state statute is questioned—either
by certified or registered mail or by sending it to an electronic
address designated by the attorney general for this purpose.
(b) CERTIFICATION BY THE COURT. The court must, under 28 U.S.C.
§ 2403, certify to the appropriate attorney general that a statute
has been questioned.
(c) INTERVENTION; FINAL DECISION ON THE MERITS. Unless the
court sets a later time, the attorney general may intervene within
60 days after the notice is filed or after the court certifies the
challenge, whichever is earlier. Before the time to intervene expires, the court may reject the constitutional challenge, but may
not enter a final judgment holding the statute unconstitutional.