Motion to Dismiss for Insufficient Service of Process

Ryan Duffy
Author : Ryan Duffy
6 min read

One of the main arguments for using a professional service of process agency to serve your legal papers is that mistakes do not happen. If you need a summons and complaint or some other legal papers served on time and correctly, your best course of action is to hire a professional process server. If a legal professional such as a lawyer or paralegal does not understand the service of process rules in their state (or the rules of service to out of state defendants) then mistakes could happen and jeopardize the lawsuit. If service of process is not done properly, then the defendant can file what is called a Motion to Dismiss for Insufficient Service of Process.

If this happens, and the defendant is successful, then the plaintiff has to start all over again with re-filing the summons and complaint, costing the client more time and money. However, the worst case scenario is that if the defendant is successful with their motion to dismiss and the statute of limitations has run, then the summons and complaint cannot be refiled and the client is out of luck, all because the legal professional did not understand the rules. But this can be avoided by using an experienced professional service of process agency who understands the rules and can get the job done correctly and on time.

Service of Process Rules

Every state has their own rules regarding how legal papers, including new lawsuits, are to be served upon a defendant or an opposing party. Even the Federal Rules of Civil Procedure have their own service of process rules that cover federal lawsuits. Most states' rules are very similar, but some states have particular quirks in some of their service of process rules that are different from most states. For example, some states have a rule that service of process a summons or notice and a complaint cannot be performed on a Sunday. If a legal professional or paralegal did not know that rule, and they had a notice and complaint served upon a defendant in some manner on a Sunday, then that service would be null and void and would not count. The defendant could potentially file a Motion to Dismiss for Insufficient Service of Process.

In some instances, the lawsuit can be dismissed even without a motion from the defendant. For example, Federal Rules of Civil Procedure 4(m) states, “If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant.” However, if the plaintiff can show “good cause” as to why service of process was not completed within the time frame, the court can extend the time for service and exercise its discretion to extend the time for service for other valid reasons, as well. But unless the court extends the time for service, the failure to timely serve under Rule 4(m) is grounds for dismissal under Rule 12(b)(5) for insufficient service of process. Insufficiently served lawsuits can be dismissed under this rule even if the defendant knew of the existence of the lawsuit through some manner.

Grounds for Motion to Dismiss

There are many grounds or reasons allowed in the Rules of Civil Procedure to dismiss a new lawsuit before the case even gets going. Some of the more common motions to dismiss are for:

  • Lack of jurisdiction over the subject matter

  • Lack of Jurisdiction over the person

  • Insufficiency of Process

  • Forum non conveniens (meaning it is more appropriate for another court to hear the case), and

  • Insufficiency of Service of Process

There are many other more technical reasons that a lawsuit can be dismissed based upon specific types of lawsuits and their technical requirements. For example, in some states, in medical malpractice cases, a Certificate of Good Faith not being properly filed as required by law can be a basis for a motion to dismiss.

Insufficiency of Process vs. Insufficiency of Service of Process

As listed above, both insufficiency of process and insufficiency of service of process is listed as grounds for a motion to dismiss. These are not the same things. “Legal process” is a term of art that describes the papers that must be correctly created and filled out, filed at the courthouse, then served upon the defendant in a proper manner in order to begin a lawsuit. In most states, “legal process” means a notice or summons and a complaint. In some states, the notice is called a certificate. The notice or summons or certificate is usually a one page document that explains who the parties are, the courthouse where the legal process was filed, and what the defendant has to do. Specifically, the notice or summons form that is filled out by the plaintiff will state that the defendant has a specific amount of time to respond and where to respond. Of course, every state may be a little different in what is provided on this form, but essentially it is these things. The complaint is a numbered paragraph document that explains what the lawsuit is about, the facts as the plaintiff sees them, and the damages that are claimed.

Insufficiency of process is when something is wrong with either the summons or notice and/or the complaint. These papers must be properly filled out, completed, and signed to be legally valid. Insufficiency is when these papers are not properly filled out, completed, or signed. It could be as simple as the notice or summons listing the wrong court. Another common problem is when either just the notice is served upon the defendant or just the complaint, but not both. This would be a violation of the rules and would allow the defendant to file a motion to dismiss based upon the insufficiency of the process. However, this is distinguished from the insufficiency of service of process. That is a whole other category.

Grounds for Motion to Dismiss for Insufficiency of Service of Process

Service of Process means the steps taken to legally deliver the writ of summons and complaint, and any other legally required documents, to a defendant. Insufficiency of service of process is when these steps were not done correctly. Every state’s service of process rules are particular to that state, and even though most states have similar rules, some may be significantly different depending upon the type of defendant and the type of lawsuit being filed.

If the process of serving legal documents does not strictly adhere to the statutory methods contained in that particular state’s Rules of Civil Procedure, it results in the court lacking personal jurisdiction over the defendant, leading to all subsequent proceedings becoming invalid and void.

Once the process server has delivered the legal papers to the defendant or opposing party, the process server must prepare an affidavit of service that is filed with the court. The affidavit of service usually sets forth information and details about how service was performed, including:

  • The papers served

  • The person served and the date of service

  • When service is made by delivering the summons to an individual, a description of the person to whom the papers were delivered including, among other things, sex, skin color, hair color, age, weight, height and any other identifying features. In addition,

  • If service is made through alternative forms of service such as through the mail, posting at the defendant’s residence or place of work, or service through publication, the dates, addresses and times of attempted service must be specified. The process server has to prove to the court that alternative methods of service were necessary given the various other methods tried and that due diligence in serving the legal papers was attempted. For example, the process server may list the various dates and times they attempted to find the defendant at their residence or at their home.

Without the filing of the affidavit of service or without the proper information written in the affidavit, the defendant could potentially file and win a motion to dismiss for insufficient service of process.

There are six common grounds that support the filing of a motion to dismiss for insufficient service. Every state is somewhat different and every case is different so there could be even more than one basis to justify a motion to dismiss.

  1. Improper Method of Service: Each jurisdiction has specific rules and procedures for serving legal process. There is no wiggle room on these rules and they must be strictly followed. If the serving party fails to comply with these rules, the defendant may have grounds to seek dismissal of the case. Common improper methods include failure to deliver the documents in person or through authorized mail services, or serving the wrong individual.

  2. Untimely Service: Lawsuits are governed by statutes of limitations, which specify the timeframe within which legal actions must be initiated. If the service of process is not completed within the specified time limits set forth in the Rules of Civil Procedure, the defendant may argue that the case should be dismissed due to untimely service.

  3. Lack of Personal Jurisdiction: When service of process is insufficient, it may result in the court lacking personal jurisdiction over the defendant. Personal jurisdiction is the court's authority to make decisions and enforce judgments against an individual or entity. Without proper service, the court cannot establish that it has jurisdiction over the defendant, leading to a potential dismissal of the case.

  4. Failure to Deliver All Required Documents: In some cases, the serving party may fail to deliver all the necessary documents as required by law. This could include failing to provide copies of the complaint or other essential paperwork. Such an omission may provide sufficient grounds for the defendant to request dismissal.

  5. Serving the Wrong Address: If the process server mistakenly delivers the legal documents to an incorrect address, and the defendant does not receive proper notice of the lawsuit, they may have a legitimate reason to seek dismissal

  6. Serving the Wrong Person: Although this does not happen often, there is always the risk that the process server has a case of mistaken identity and delivers the papers to the wrong person. Merely handing legal documents to an individual and walking away is usually not a proper and safe way to serve legal process. There is always the chance that the process server has handed the papers to the wrong person! This is why a professional process server will confirm the identity of the person being served prior to the delivery or, at the very least, will know what the defendant looks like and can make a proper service then.

Implications of a Motion to Dismiss for Insufficient Service

If a motion to dismiss based on insufficient service of process is successful, it can have significant consequences for the plaintiff's case. The court may dismiss the case without prejudice, meaning the plaintiff can refile the lawsuit after correcting the errors in service. This will cost the plaintiff more money and will delay the beginning of the lawsuit. Sometimes the delay can add months to the length of the lawsuit. Alternatively, if the statute of limitations has expired, the plaintiff may lose the opportunity to pursue the claims entirely. If this is the case, and the insufficient service of process is the fault of the lawyer or a paralegal working on the case, then the law firm could be sued for legal malpractice.

It is crucial for both plaintiffs and defendants to understand the rules and requirements for proper service of process in their jurisdiction. Ensuring compliance with these rules can prevent unnecessary delays and complications in legal proceedings.

The best way to ensure that service of legal papers is done properly is to hire a professional service of process agency. Our professional process servers are experienced and knowledgeable about the rules that must be filed in each jurisdiction in which they work. By using our process servers, you can be assured that the job will get done correctly and on time.

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Ryan Duffy
Ryan Duffy

Associate Attorney

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