The Ohio Rules of Civil Procedure were amended, effective July 1, 2020, to allow plaintiffs to seek a waiver of service from the defendant in order to help avoid the expense of serving the summons in Ohio Common Pleas Courts. In this Weltman Alert, attorney John B. Bauer
and shareholder Andy C. Voorhees
will explain these updates.
To obtain waiver of service, the plaintiff must:
- Notify the defendant that an action was commenced; and
- Make a written request for waiver, complying with the corresponding form and content requirements.
The request for waiver should follow the form included in the rule, and must:
- Be in writing;
- Name the court where the complaint was filed;
- Be accompanied by a copy of the complaint, two copies of a waiver form, and a prepaid means for returning the form;
- Inform the defendant of the consequences of waiving and not waiving service;
- State the date the request was sent;
- Give the defendant at least 28 days after the request was sent to return the waiver; and
- Be sent by first-class mail or other reliable means.
For the waiver to be effective, the defendant or the defendant's counsel must sign the waiver of service and return it to the plaintiff within the time allowed. The plaintiff must then file the executed waiver.
A defendant who timely returns a waiver does not need to serve an answer to the complaint until 60 days after the request for waiver was sent. A defendant does not waive an objection to personal jurisdiction or venue by waiving service. If a defendant does not waive service on request without good cause, the court must order the defendant to pay the expenses later incurred by the plaintiff in making service and the reasonable expenses, including attorneys' fees, of any motion required to collect those service expenses.
As mentioned above, Civil Rule 4.7(A)(7) provides that the notice and request must be sent by first-class mail or other reliable means. The Staff Notes to the Rule specifically indicate that electronic communications are permissible and may on occasion be more convenient to the parties than regular mail. If a plaintiff cannot locate an address for an individual, but a fax number or email address is available, sending the notice and waiver request electronically may be a viable alternative to traditional service. The party receiving the electronic 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. Using electronic communications to send the notice and request may also be useful when a consumer has already retained an attorney or debt settlement company. If a creditor or law firm has a pre-existing relationship with that attorney or debt settlement company and has its updated contact information, sending a notice and waiver electronically could prove to be cost-effective. However, plaintiff debt collectors and their third party vendors should always be careful to ensure all communications comply with applicable law, including the Fair Debt Collection Practices Act (FDCPA).
Civil Rule 4.7 also applies to service upon Corporations. Ohio Civil Rule 4.2(F) allows service of summons on a corporation via (1) an agent authorized to receive service of process, (2) at the usual place of business, or (3) upon the office or managing agent of the corporation. However, these alternative methods of service may create some confusion under the new Rule.
One of the noteworthy provisions of 4.7 are the consequences for failing to properly waive service. Under the Rule, if a defendant fails to properly waive service within 28 days, the defendant could be subject to reasonable fees and costs in obtaining standard service of summons and of obtaining an order from the court for those fees. This provision may be prevalent in situations where the waiver request is sent to a corporation’s place of business, as opposed to an individual. If you are attempting to serve a large corporation, it is entirely possible that the waiver may be redirected to the wrong party in the organization, not delivered at the right location, or simply ignored by whoever receives it. The question will be whether a corporation can avoid fees and costs for failing to timely waiver in those instances.
Rule 4.7(C) allows a defendant to avoid fees and costs for good cause, and the Staff Notes provide further guidance and clarity on what may constitute good cause. First, a finding of good cause should be “rare.” Second, an allegation of an unjust claim is not good cause. Third, good cause would exist where “the defendant did not receive the request or was insufficiently illiterate in English to understand it.” Based upon the language of the Rule and the Staff Notes, it probably is not good cause for a corporation to fail to waive service, even if the waiver was not received by the right person in the organization. It remains to be seen how this will be interpreted by the courts in the future.
This blog is not a solicitation for business and it is not intended to constitute legal advice on specific matters, create an attorney-client relationship or be legally binding in any way.
Contact the Authors:
John Bauer Andy Voorhees