The Summons as Process

Valid Summons and Process Defects

The Summons as Process

A federal lawsuit begins with a complaint, but the complaint alone does not bring the defendant into court. The court's order to respond comes in a second document, the summons. Once the complaint is filed, Rule 4(b) lets the plaintiff present a summons to the clerk, and if the summons is properly completed, the clerk must sign it, seal it, and issue it to the plaintiff for service on the defendant.¹ The signature and seal matter most. The plaintiff prepares the form, but it speaks for the court only after the clerk has signed and sealed it. The clerk must issue a summons, or a copy of a summons addressed to multiple defendants, for each defendant to be served, so every defendant receives an order of its own.²

The complaint and the summons do different jobs, and a defendant needs both. The complaint states the plaintiff's claims. The summons is an official order of the court commanding the defendant to appear and defend the action.³ The complaint tells the defendant what is claimed; the summons tells the defendant that the court expects an answer. Delivering the papers does two things: it formally asserts the court's authority over the defendant, and it informs the defendant of the case so that a defense can be prepared.⁴

The second function has constitutional roots. Due process requires that a defendant be properly notified of the action so that she can appear and defend, and Mullane v. Central Hanover Bank held that notice must be given by a means "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."⁵ The summons carries that notice at the start of the case. Rule 4(a) requires it to warn the defendant that a failure to appear and defend will result in a default judgment for the relief demanded in the complaint.⁶

Consider what a defendant actually holds when a process server delivers only the complaint.

The rules therefore make the two documents travel together. Rule 4(c)(1) provides that a summons must be served with a copy of the complaint. The plaintiff is responsible for having both served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.⁷

Two words need to stay distinct for the rest of this chapter. Process means the papers themselves, the summons the clerk issues. Service means the act of delivering those papers to the defendant. The distinction will matter later, because a defect in the papers and a defect in the delivery give rise to different objections.

The rest of the chapter takes up two questions about the papers. The first is whether a summons is valid, which depends on the contents Rule 4(a) prescribes. The second is how a defendant attacks a deficient summons, which Rule 12(b)(4) allows through the defense of insufficient process.⁸ Neither question concerns how the papers reach the defendant.