Service of Complaints: Maryland and Federal Rules, Rule 2-507, and the Consequences of Getting It Wrong
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A lawsuit, once filed, must be served upon the named defendants. Until then, they have not been brought within the court's personal jurisdiction and ordinarily have no obligation to answer or otherwise respond to the complaint.
Maryland Circuit Court: Rule 2-121
Maryland Rule 2-121 governs service of process in personam.
Ordinarily, service may be accomplished by personally delivering the summons, complaint, and accompanying papers to the defendant; by leaving them at an individual's dwelling or usual place of abode with a resident of suitable age and discretion; or by certified mail using restricted delivery in the manner required by the Rule.
The details matter. Ordinary mail is not restricted-delivery certified mail. Leaving papers at an address where the defendant no longer resides may not accomplish service. Delivery to someone who merely happens to be present at an address does not necessarily satisfy the Rule.
Corporations, governmental entities, partnerships, minors, incompetent persons, and other categories of defendants are governed by additional provisions concerning who is authorized to receive process.
Who May Serve Process?
Service may generally be made by a sheriff or another person legally qualified to serve process. Private process servers are frequently used because they can make repeated attempts and document precisely when, where, how, and upon whom service was accomplished.
That documentation can become important if service is later challenged—or if counsel must demonstrate diligent efforts to accomplish service.
Proof of Service
Maryland Rule 2-126 governs the return and proof of service.
The return should accurately establish whom the server served, when and where service occurred, and the method used.
Counsel should therefore verify three separate matters:
Was the defendant actually served?
Was service accomplished by a method authorized by the Rules?
Has adequate proof of service been filed with the court?
Sending the papers to a process server is the beginning of the process, not confirmation that it has been completed.
When the Defendant Cannot Be Found or Appears to Be Avoiding Service
Difficulty locating a defendant does not suspend applicable procedural deadlines.
When ordinary service fails, counsel should begin creating the record that may ultimately be necessary to obtain relief from the court.
That record can include addresses investigated, dates and times of attempted service, information obtained from occupants, returned mail, employment information, database searches, process-server reports, and other reasonable efforts to locate the defendant.
Maryland Rule 2-121 provides procedures for alternative service in appropriate circumstances, including situations involving evasion or where ordinary methods have proved impracticable.
The important question is not simply why service failed. It is what counsel did after learning that it failed.
Reissuing a Summons Does Not Solve the Rule 2-507 Problem
A summons that expires before service may need to be reissued.
Reissuance, however, should not be confused with prosecution of the action for purposes of Rule 2-507. Repeatedly obtaining new summonses does not itself prevent the case from becoming subject to dismissal because jurisdiction has not been obtained over the defendant.
This can be easily overlooked. The docket may show recent activity because another summons was issued while the underlying service problem remains unresolved.
Maryland Rule 2-507: Dismissal for Failure to Obtain Jurisdiction
Maryland Rule 2-507 provides a mechanism for dismissing civil actions that have not progressed within prescribed periods.
Of particular importance to service, an action may become subject to dismissal when the court has not acquired jurisdiction over a defendant because service has not been accomplished within the period established by the Rule.
The clerk provides notice before dismissal, permitting the plaintiff an opportunity to seek deferral.
That notice requires immediate attention.
A Dismissal “Without Prejudice” Can Still End the Case
The phrase “without prejudice” can be misleading in this context.
If limitations remains open, dismissal without prejudice may permit the plaintiff to file another action. If limitations expired after the original complaint was filed, however, the theoretical ability to refile may be of little value if the replacement action is time-barred.
A procedural dismissal without prejudice can therefore have the practical consequence of ending the claim.
Seeking Deferral Under Rule 2-507
A motion to defer dismissal should demonstrate what has actually been done to obtain service.
A conclusory representation that counsel is “continuing to attempt service” tells the court relatively little.
A stronger motion identifies the dates and locations of attempts, explains why they failed, describes the investigation undertaken to locate the defendant, identifies additional methods being pursued, and specifies the additional period reasonably necessary to complete service.
The history matters. A documented series of diligent efforts presents a fundamentally different case from a docket reflecting months of inactivity.
Do Not Wait for the Rule 2-507 Notice
The better practice is to monitor service long before the clerk sends a dismissal notice.
If the process server cannot locate the defendant, determine why. If the address is incorrect, investigate another. If certified mail is repeatedly unclaimed, consider another permissible method. If the defendant appears to be avoiding service, begin developing the record necessary to seek alternative service.
The Rule 2-507 notice should not be the event that causes counsel to discover that service has been unsuccessful for months.
Federal Rule of Civil Procedure 4
Federal practice is governed principally by Federal Rule of Civil Procedure 4.
For an individual within a judicial district of the United States, Rule 4 permits service through methods authorized by the law of the state where the district court is located or where service is made, as well as through methods independently authorized by the federal Rule.
State service law therefore remains potentially important even in federal litigation.
Federal Rule 4(m): The 90-Day Service Period
Federal Rule 4(m) ordinarily requires service within 90 days after the complaint is filed.
If service is not accomplished within that period, the court may dismiss the action without prejudice against the unserved defendant or direct that service be completed within a specified time.
Rule 4(m), however, recognizes two distinct bases for extending that period.
The Fourth Circuit examined the distinction directly in Gelin v. Shuman, 35 F.4th 212 (4th Cir. 2022).
Good Cause: Extension Is Mandatory
When the plaintiff demonstrates good cause for failure to accomplish timely service, Rule 4(m) requires the court to extend the service period for an appropriate time.
But Gelin demonstrates that difficulty locating a defendant does not necessarily establish good cause.
Several individual health-care defendants formerly associated with the Baltimore County Detention Center proved difficult to locate. A process server attempted service at the Detention Center and learned that several no longer worked there. An address search was also unsuccessful.
The Fourth Circuit nevertheless upheld the determination that good cause had not been established. The plaintiffs' subsequent inactivity and failure to request an extension before expiration of the service period were significant.
Difficulty accomplishing service and diligence in attempting service are separate questions.
The fact that a defendant is difficult to locate does not itself establish that counsel diligently attempted to locate the defendant.
No Good Cause: Extension Remains Discretionary
Gelin also resolved an important question concerning the district court's authority when good cause cannot be shown.
The district court had concluded that absence of good cause deprived it of authority to extend the Rule 4(m) deadline.
The Fourth Circuit disagreed.
Even without good cause, the district court retains discretion to grant additional time for service.
The distinction is important:
Good cause established: the court must extend the deadline.
Good cause not established: the court may extend the deadline.
That discretionary authority can prevent dismissal, but it should not be treated as a substitute for diligent service efforts.
Ask for More Time Before Time Expires
One of Gelin's most useful practical lessons concerns timing.
When counsel knows that service is proving difficult, there is little reason to allow the 90-day period to expire before asking the court for additional time.
A pre-deadline motion can identify the efforts already made, explain the difficulties encountered, describe the additional steps proposed, and request a reasonable extension.
By contrast, an extension request first made after a substantial period of inactivity presents a considerably more difficult argument.
Make the Attempts—and Preserve the Record
When the first service attempt fails, the response should ordinarily be additional activity rather than passive waiting.
Depending upon the circumstances, counsel may investigate additional addresses, attempt service at different times or locations, investigate changes in employment, use appropriate public-record and investigative resources, determine whether an authorized agent may accept service, consider state-law service methods available through Federal Rule 4(e), preserve process-server affidavits and reports, and seek additional time before expiration of the deadline when necessary.
The eventual record should permit counsel to show the court not merely that the defendant could not be found, but what was done to find and serve the defendant, why those efforts failed, and what remains to be done.
Gelin v. Shuman: When a Service Problem Becomes Appellate Litigation
The procedural history of Gelin demonstrates the potential consequences.
The complaint was filed in November 2016. The Rule 4(m) period expired in February 2017. Several health-care-provider defendants were not properly served during that period.
The plaintiffs asserted good cause for the failure. The district court rejected that argument, and the Fourth Circuit agreed that good cause had not been established.
The district court, however, had also concluded that it lacked authority to grant an extension in the absence of good cause.
On that issue, the Fourth Circuit disagreed and vacated the dismissal as to the affected defendants so that the district court could consider whether a discretionary extension should be granted.
The decision therefore establishes two separate inquiries under Rule 4(m):
Has good cause been established, requiring an extension?
If not:
Should the court nevertheless exercise its discretion to grant additional time?
Gelin is useful authority when discretionary relief is sought in the absence of good cause. Its more important lesson may be preventative.
Make repeated service efforts, document them, monitor the deadline, and request additional time before expiration when circumstances warrant it.
Waiver of Service in Federal Court
Federal Rule 4 also permits certain defendants to waive formal service.
A proper waiver request can avoid the expense associated with formal service. A domestic defendant who refuses such a request without good cause may be required to bear the resulting service expenses.
A defendant who waives service receives additional time to respond.
Waiver of service does not, however, waive objections to personal jurisdiction or venue. It eliminates the requirement of formal service; it does not surrender every procedural defense.
Corporations and Other Entities
Service upon a business entity requires attention to the person legally authorized to receive process.
Handing a complaint to an employee merely because the employee happens to be present at a business location may not accomplish service.
Maryland's Rules identify the persons upon whom process may be served for corporations, partnerships, associations, governmental entities, and other organizations.
For Maryland business entities, resident-agent information maintained by the State Department of Assessments and Taxation can be an important starting point.
Counsel should nevertheless confirm the proper method of service and determine what alternatives are available if service upon the resident agent cannot be accomplished.
Government Defendants
Government litigation can present two entirely separate procedural requirements.
First, the complaint must be served upon the person or governmental office designated by the applicable rule or statute.
Second, the plaintiff may have been required to satisfy an independent statutory notice requirement before filing suit, such as notice under the Local Government Tort Claims Act or Maryland Tort Claims Act.
Those requirements should not be confused.
Compliance with a pre-suit tort-claim notice provision does not establish service of the complaint. Proper service of the complaint does not cure failure to comply with an independently applicable pre-suit notice requirement.
Multiple Defendants Require Separate Monitoring
Service should be tracked defendant by defendant.
In a multi-defendant action, one defendant may be served immediately while another has moved, a corporate defendant may have a resident agent, an individual may appear to be avoiding service, and a governmental defendant may require service upon a designated official.
A service record for each defendant can therefore be useful:
Defendant — Summons Issued — Method — Attempts — Date Served — Return Filed — Response Due.
Actual Notice Does Not Necessarily Cure Defective Service
A recurring response to defective service is:
“But the defendant knew about the lawsuit.”
Actual knowledge and legally sufficient service are not necessarily the same thing.
Service relates to the court's exercise of personal jurisdiction. A defendant's awareness that an action has been filed does not automatically satisfy the procedural requirements governing service.
Waiver, voluntary appearance, and other circumstances may alter the analysis, but actual notice should not deliberately be substituted for compliance with the service rules.
Limitations Magnifies Every Service Problem
Service difficulties become substantially more dangerous after the statute of limitations has expired.
Maryland generally treats an action as commenced when the complaint is filed. But filing does not permit the plaintiff to leave the action dormant indefinitely without obtaining jurisdiction over the defendant.
Rule 2-507 addresses that problem directly.
Federal Rule 4(m) creates a different mechanism, but dismissal after expiration of limitations can produce the same practical danger.
The sensible practice in either system is to file timely and pursue service promptly rather than making the survival of the claim depend upon later discretionary relief.
Practical Service Checklist
Immediately after filing:
- Confirm that summonses issued for every defendant.
- Confirm each defendant's correct legal identity.
- Determine who is authorized to receive service for each defendant.
- Select the appropriate method of service.
- Calendar expiration of summonses and all service deadlines.
- Monitor the process server.
- Review every return of service.
- Respond immediately to unsuccessful or questionable service.
- Make additional attempts rather than relying upon one unsuccessful effort.
- Document those attempts.
- Seek alternative service when appropriate.
- Monitor Maryland Rule 2-507.
- Calendar the federal Rule 4(m) 90-day deadline.
- If additional federal time may be necessary, consider requesting it before the deadline expires.
- Track each defendant separately.
- Do not equate actual notice with proper service.
- Reevaluate limitations consequences whenever service becomes problematic.
Bottom Line
Service of process is routine only when it works. When it does not, the consequences can implicate personal jurisdiction, limitations, dismissal, appellate litigation, and ultimately the continued existence of the claim.
Maryland Rules 2-121, 2-124, 2-126, and 2-507 establish the principal Maryland framework. Federal Rule 4 establishes a different system, including waiver of service and the 90-day period imposed by Rule 4(m).
Gelin v. Shuman adds an especially important Fourth Circuit lesson. Good cause requires an extension of the federal service period; absence of good cause does not eliminate the district court's discretion to grant one.
Neither proposition, however, is a substitute for diligence.
Make the attempts. Preserve the record. Know the deadline. And seek relief before a service problem becomes a dismissal problem.
Related Maryland Cases and Authorities
- Maryland Rule 2-121 — governs service of process in personam and alternative service in appropriate circumstances.
- Maryland Rule 2-124 — governs service upon corporations, partnerships, governmental entities, and other specified defendants.
- Maryland Rule 2-126 — governs return and proof of service.
- Maryland Rule 2-507 — provides for dismissal for lack of jurisdiction or prosecution and procedures for seeking deferral.
- Flanagan v. Department of Human Resources, 412 Md. 616, 988 A.2d 1139 (2010) — addresses service of process and personal jurisdiction.
- Lohman v. Lohman, 331 Md. 113, 626 A.2d 384 (1993) — addresses personal jurisdiction and the consequences of voluntary appearance.
- Federal Rule of Civil Procedure 4 — governs summonses, service, waiver, methods and proof of service, and extensions.
- Federal Rule of Civil Procedure 4(m) — ordinarily requires service within 90 days after filing; requires an extension upon good cause and permits a discretionary extension in the absence of good cause.
- Gelin v. Shuman, 35 F.4th 212 (4th Cir. 2022) — holds that good cause requires an extension under Rule 4(m), while the district court retains discretion to grant additional time even without good cause; also illustrates the importance of diligence in attempting service.