Brief Fact Summary.
The sheriff served a summons and complaint to Mayo Medical Center after Mayo Medical Center twice refused to sign and return an acknowledgement of service.
Synopsis of Rule of Law.
A plaintiff should continue with the standard rules for service of process under FRCP 4 if a defendant fails to waive personal service of process.
Larsen became sick due to medical malpractice at Mayo Medical Center (Mayo). Larsen filed suit within the two-year statute of limitations period. Larsen tried to mail process twice, but Mayo refused to sign and return the acknowledgement twice. Mayo’s attorney refused to waive personal service of process when he was contacted by Larsen’s attorney. Larsen mailed summons and complaint to the sheriff’s office, who subsequently served Mayo. Mayo moved for summary judgment claiming that Larsen’s claim was barred by the statute of limitations. Summary judgment was granted to Mayo.
Whether a plaintiff should continue with the standard rules for service of process under FRCP 4 if a defendant fails to waive personal service of process?
Yes. The district court’s judgment is affirmed. Larsen’s action began when the sheriff received the summons, past the two year statute of limitations period.
A plaintiff may request that a defendant waive service of process under FRCP 4(d)(2). The plaintiff, however, must commence valid personal service if the defendant refuses.