In Illinois, when is proper service made if a defendant accepts service by phone?
A phone call saying “I want to accept service” does not, by itself, complete the statutory waiver-of-service procedure. If the defendant signs and returns a compliant waiver, service is treated as completed when the plaintiff files that waiver with the court, not when the defendant calls or signs it.[1]
When service becomes effective
Illinois’s waiver statute expressly provides:
“When a waiver of service is filed by the plaintiff with the court, the action shall proceed as if a summons and complaint had been served at the time of filing of the waiver, and no proof of service shall be required.”
735 Ill. Comp. Stat. 5/2-213(d).[1]
The relevant distinctions are:
| Event | Effect under the statutory waiver procedure |
|---|---|
| Defendant calls plaintiff’s counsel and offers to accept service | Does not complete the required written waiver procedure. |
| Plaintiff sends the required notice, complaint, and waiver materials | Starts the statutory time periods, but does not itself complete service. |
| Defendant signs and returns the waiver | Gives plaintiff the waiver to file; signing or returning alone is not the statutory effective-service event. |
| Plaintiff files the waiver with the court | The action proceeds as though summons and complaint were served on that filing date. |
735 Ill. Comp. Stat. 5/2-213(a), (c), (d).[1]
This conclusion concerns an out-of-court call to plaintiff’s counsel. A defendant’s actual appearance in the case is a separate procedural event: the rules provide that a party appearing without having been served must plead within the same time as if served on the day of appearance.[2]
How to document the defendant’s agreement
To use the statutory procedure, plaintiff’s counsel should send a written notice and request that:
- Is addressed to the defendant or an appropriate representative of an entity defendant.
- Is sent by first-class mail or other equally reliable means.
- Includes the complaint and identifies the court where it was filed.
- Explains the consequences of compliance and noncompliance.
- Allows at least 30 days to return the waiver, or 60 days if addressed outside the United States.
- Includes an extra copy of the notice and request and prepaid means of written compliance.
735 Ill. Comp. Stat. 5/2-213(a).[1]
The request must use, or substantially adopt the appearance and content of, the prescribed Article II appendix form.[2]
If the defendant does not return the waiver, the statute requires service of summons through an otherwise authorized method. Do not rely solely on counsel’s memorandum of the phone call as completed statutory service.[1]
Response deadline and preserved objections
The response deadline is not calculated from the waiver’s filing date. For a timely returned waiver:
| Defendant’s location when addressed | Time to appear or serve an answer |
|---|---|
| Within the United States | 60 days after the waiver request was sent |
| Outside the United States | 90 days after the waiver request was sent |
735 Ill. Comp. Stat. 5/2-213(c).[1]
Also, waiving service does not itself waive objections to venue or personal jurisdiction.[1]