Motion to dismiss under rule 12(b)(5) for insufficient service of process

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Motion to dismiss a complaint for insufficient service of process under Rule 12(b)(5) of the Federal Rules of Civil Procedure is the topic of this document. Rule 12(b)(5) allows a defendant to move for dismissal due to insufficient service of process in civil litigation in United States District Court.

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Motion to dismiss under rule 12(b)(5) for insufficient service of process

  1. 1. Motion to dismiss a complaint for insufficient service of process under Rule 12(b)(5) of theFederal Rules of Civil Procedure is the topic of this document. Rule 12(b)(5) allows a defendantto move for dismissal due to insufficient service of process in civil litigation in United StatesDistrict Court.Rule 12(b) of the Federal Rules of Civil Procedure states in pertinent part that, “A party mayassert the following defenses by motion: (5) insufficient service of process.”However, the law is settled in the Ninth Circuit Court of Appeals that a defendant must object tothe insufficiency of service before filing any answer to a complaint. If a defendant fails to doobject before filing an answer, any defects in service are deemed waived.A responsive pleading by a defendant that fails to dispute personal jurisdiction waives any defectin service or personal jurisdiction. See Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986)(internal citations and quotations omitted), see also Jackson v. Hayakawa, 682 F.2d 1344, 1347(9th Cir.1982).Under Rule 12(h)(1), the defense of insufficiency of service is waived if omitted from a motionfiled under the circumstances described in Rule 12(g)(2).Rule 12(g)(2) in turn requires a defendant to raise certain Rule 12 defenses including insufficientprocess and failure to state a claim in a single motion, see also Am. Assn of NeuropathicPhysicians v. Hayhurst, 227 F.3d 1104, 1107 (9th Cir. 2000).The law is also settled that once a defendant challenges the sufficiency of service on them, theplaintiff bears the burden of establishing the validity of service as governed by Rule 4. SeeBrockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004).The Ninth Circuit Court of Appeals has stated that, if the plaintiff is unable to satisfy its burdenof demonstrating effective service, the court has discretion to either dismiss or retain the action.See Stevens v. Sec. Pac. Natl Bank, 538 F.2d 1387, 1389 (9th Cir. 1976).Attorneys or parties in civil litigation in United States District Court who wish to view a samplemotion to dismiss under Rule 12(b)(5) of the Federal Rules of Civil Procedure sold by the authorcan see below.http://www.scribd.com/doc/137724076/Sample-Motion-to-Dismiss-Under-Rule-12-b-5-in-United-States-District-CourtThe author of this blog post, Stan Burman, is a freelance paralegal who has worked in Californiaand Federal litigation since 1995.If you enjoy this tell others about it. They can subscribe to the authors weekly California andFederal legal newsletter by visiting the following link:http://www.legaldocspro.net/newsletter.htm
  2. 2. To view all of the sample legal documents for use in California and Federal Courts sold by theauthor of this blog post visit http://www.scribd.com/legaldocspro/documentsCopyright 2013 Stan Burman. All rights reserved.<strong>DISCLAIMER:</strong>Please note that the author , Stan Burman is NOT an attorney and as such is unable to provideany specific legal advice. The author is NOT engaged in providing any legal, financial, or otherprofessional services, and any information contained herein is NOT intended to constitute legaladvice.The materials and information contained herein have been prepared by Stan Burman forinformational purposes only and are not legal advice. Transmission of the information containedherein is not intended to create, and receipt does not constitute, any business relationshipbetween the author and any readers. Readers should not act upon this information withoutseeking professional counsel.

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