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Sample motion to dismiss under rule 12(b)(5) in united states district court preview
 

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This sample motion to dismiss under Rule 12(b)(5) in United States District Court is made pursuant to Federal Rule of Civil Procedure 12(b)(5) on the grounds of insufficient service of process and is ...

This sample motion to dismiss under Rule 12(b)(5) in United States District Court is made pursuant to Federal Rule of Civil Procedure 12(b)(5) on the grounds of insufficient service of process and is the equivalent of a motion to quash for Federal Court. The sample can be modified for use in any State within the jurisdction of the Ninth Circuit Court of Appeals, contains a memorandum of points and authorities with citations to case law and statutory authority, brief instructions, a sample declaration and a proof of service by mail.

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Sample motion to dismiss under rule 12(b)(5) in united states district court preview Document Transcript

  • 1. 12345678910111213141516171819202122232425262728Any PartyAny StreetAny Town, CA 55555714-555-5555Any Attorney or PartyUNITED STATES DISTRICT COURT________ DISTRICT OF _____________Any Plaintiff,Plaintiff,vs.Any Defendant, and DOES 1-5Defendants.)))))))))))))Case No.NOTICE OF MOTION AND MOTION TO DISMISSPURSUANT TO RULE 12(B)(5) FORINSUFFICIENCY OF PROCESS. MEMORANDUMOF POINTS AND AUTHORITIES;DECLARATION OF _____________DATE:TIME:PLACETo subscribe to my FREE weekly legal newsletter visithttp://www.legaldocspro.net/newsletter.htm and enter your e-mailaddress. Be sure to remove this notice and all other notices beforeusing this document.To view other documents for sale by LegalDocsPro visithttp://www.scribd.com/LegalDocsPro/documentsTO PLAINTIFF ________ AND THEIR ATTORNEYS OF RECORD:- 1 -NOTICE OF MOTION AND MOTION TO DISMISS UNDER RULE 12(b)(5)
  • 2. 12345678910111213141516171819202122232425262728PLEASE TAKE NOTICE that on ________, at ______M. in Courtroom _____ of theabove-entitled Court located at ___________________________, Defendant ______ (“Defendant”)will move this Court for an Order dismissing the complaint filed by Plaintiff ____ (“Plaintiff”).This Motion will be made pursuant to Federal Rule of Civil Procedure 12(b)(5) (“Rule 12(b)(5)”) on the grounds of insufficiency of process in that Defendant, ____________________ was notpersonally served with the summons and complaint, instead they were posted on their front door.Therefore the purported service on Defendant was not valid or effective under Federal Rule of CivilProcedure 4 (“Rule 4”) and this Court should grant the motion to dismiss.This motion shall be based upon this Notice, the attached Memorandum of Points andAuthorities, the attached Declaration of ___________ the complete files and records of this action,and such other and further oral and documentary evidence as may be presented at the hearing on thisMotion.Dated_________________________ _______________________________________Any Attorney or Party- 2 -NOTICE OF MOTION AND MOTION TO DISMISS UNDER RULE 12(b)(5)
  • 3. 12345678910111213141516171819202122232425262728MEMORANDUM OF POINTS AND AUTHORITIESI.STATEMENT OF FACTSPlaintiff filed their complaint against Defendant on _____________ with causes of action for______________________________________. See complaint on file.The proof of service filed by Plaintiff alleges that Defendant was personally served on____________________with the summons and complaint.Defendant denies being personally served and alleges that they had no knowledge of thesummons and complaint, nor even that anyone had filed a lawsuit, or was attempting to serve themuntil _______________ when they opened their front door and noticed the summons and complaintwas posted on the front door.Defendant contends that the service on them was improper as it was not made in accordancewith the provisions of Rule 4 of the Federal Rules of Civil Procedure, thus this Court should grantthe motion to dismiss under Rule 12(b)(5) for insufficiency of process.Be sure to modify this to suit your individual situation. Do NOTjust use the wording here unless it definitely applies to your particularsituation.///////////////- 3 -NOTICE OF MOTION AND MOTION TO DISMISS UNDER RULE 12(b)(5)
  • 4. 12345678910111213141516171819202122232425262728II.LEGAL ARGUMENTA. THE PURPORTED SERVICE OF THE SUMMONS AND COMPLAINT ISNOT VALID UNDER RULE 4, AS A RESULT THIS COURT SHOULD GRANTTHE MOTION TO DISMISS UNDER RULE 12(b)(5)Rule 12 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.”Thus this Court has the authority to grant the motion filed by Defendant.Rule 4 of the Federal Rules of Civil Procedure states in pertinent part that, “(e) Serving anIndividual Within a Judicial District of the United States. Unless federal law provides otherwise, anindividual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served in a judicial district of the United States by:(1) following state law for serving a summons in an action brought in courts of generaljurisdiction in the state where the district court is located or where service is made; or(2) doing any of the following:(A) delivering a copy of the summons and of the complaint to the individual personally;(B) leaving a copy of each at the individuals dwelling or usual place of abode with someoneof suitable age and discretion who resides there; or(C) delivering a copy of each to an agent authorized by appointment or by law to receiveservice of process.”As shown by the Declaration of ____________, attached hereto and incorporated herein- 4 -NOTICE OF MOTION AND MOTION TO DISMISS UNDER RULE 12(b)(5)
  • 5. 12345678910111213141516171819202122232425262728To purchase the entire sample shown here visithttp://www.scribd.com/doc/137724076/Sample-Motion-to-Dismiss-Under-Rule-12-b-5-in-United-States-District-Court- 5 -NOTICE OF MOTION AND MOTION TO DISMISS UNDER RULE 12(b)(5)
  • 6. 12345678910111213141516171819202122232425262728To purchase the entire sample shown here visithttp://www.scribd.com/doc/137724076/Sample-Motion-to-Dismiss-Under-Rule-12-b-5-in-United-States-District-Court- 5 -NOTICE OF MOTION AND MOTION TO DISMISS UNDER RULE 12(b)(5)