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49. Is the court likely to grant the motion?
Assume that any relevant state service law is the same as federal law.
A plaintiff filed a federal diversity action against a corporate defendant and the same day mailed to the defendant's managing agent a notice of the complaint and two copies of a request to waive service. Sixty-one days later, after the defendant had failed to return the signed waiver request, answer, or otherwise plead, the plaintiff moved for entry of default and a default judgment. The plaintiff did not file proof of service.
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B is incorrect. This answer choice states the correct conclusion using incorrect legal reasoning. Failure to file proof of service does not affect the validity of service. See Fed. R. Civ. Pro. 4(1). Here, the motion for a default judgment should be denied because there has been no service of process, and the defendant has not waived formal service.
C is incorrect. FRCP 4(d) encourages but does not require defendants to waive formal service by returning a signed waiver request. Thus, a failure to return the waiver obliges the plaintiff to proceed with formal service. Not returning the waiver does not subject the defendant to the possibility of default.
D is incorrect. Mailing notice of the complaint is not a permissible form of service. FRCP 4(c)(1) requires the plaintiff to serve the summons with a copy of the complaint. Thus, the plaintiff failed to effect formal service of process.