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Motion to dismiss under Rule 12(b)(5) in United States District Court

Filing a motion to dismiss a complaint under Rule 12(b)(5) of the Federal Rules of Civil Procedure is the topic of this blog post. Rule 12(b)(5) authorizes a defendant to move for dismissal due to insufficient service of process in civil litigation in United States District Court, which is roughly the equivalent of a motion to quash for civil litigation in Federal Court.

Rule 12(b) of the Federal Rules of Civil Procedure states in pertinent part that, “A party may assert the following defenses by motion: (5) insufficient service of process.”

Note that a defendant must object to the insufficiency of service before filing any answer to a complaint. If a defendant fails to do object, any defects in service are deemed waived.

A responsive pleading by a defendant that fails to dispute personal jurisdiction waives any defect in 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 motion filed 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 insufficient process and failure to state a claim in a single motion, see also Am. Assn of Neuropathic Physicians v. Hayhurst, 227 F.3d 1104, 1107 (9th Cir. 2000).

Once a defendant challenges the sufficiency of service on them, the plaintiff bears the burden of establishing the validity of service as governed by Rule 4.  See Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004).

The Ninth Circuit Court of Appeals has stated that, tf the plaintiff is unable to satisfy its burden of demonstrating effective service, the court has discretion to either dismiss or retain the action. See Stevens v. Sec. Pac. Nat’l 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 sample motion to dismiss under Rule 12(b)(5) of the Federal Rules of Civil Procedure sold by the author can see below.

 

Attorneys or parties that would like more information on a Federal litigation document package containing 42 sample documents including a sample motion to dismiss under Rule 12(b)(5) can use the link shown below.

Federal litigation document package

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

If you enjoy this blog post, tell others about it. They can subscribe to the author’s weekly California and Federal legal newsletter by visiting the following link:  http://www.legaldocspro.net/newsletter.htm

To view over 300 sample legal documents for use in California and Federal Courts sold by the author of this blog post visit http://www.scribd.com/legaldocspro/documents

Copyright 2013 Stan Burman. All rights reserved.

<strong>DISCLAIMER:</strong>

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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