Also known as: FRCP 12(b)(5) · Rule 12(b)(5) · Federal Rule of Civil Procedure 12(b)(5) · 12(b)(5) · insufficient service of process
Written by attorneys · grounded in primary & secondary sources — see below
A defense asserted by motion that challenges the manner in which the plaintiff delivered the summons and complaint to the defendant.
North Shop hired a private investigator to serve Molly after she left employment. The investigator slid the summons and complaint under the locked door of her apartment after learning from neighbors that she was traveling. Molly moved to dismiss on the ground of insufficient service of process. The court granted the motion because the delivery method failed to satisfy any authorized form of service.
Pixel Wire LLC and its editor Dana sued Eli for breach of an exclusivity agreement. Dana personally delivered the summons and complaint to Eli outside their shared building. Eli moved to dismiss for insufficient service of process. The court granted the motion because a party to the action is barred from serving process.
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A Rule 12(b)(5) motion attacks the method of delivering the summons and complaint. A Rule 12(b)(4) motion instead challenges defects in the form or content of the summons itself. The two defenses address separate aspects of process and are not interchangeable.
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Actual notice does not excuse failure to follow an authorized method of service. Courts require strict compliance with the rules governing who may serve and how service must be accomplished. A defendant may still obtain dismissal even when the papers ultimately reached the correct party.
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A named plaintiff is a party and therefore may not serve process. Rule 4(c)(2) requires that service be made by a nonparty who is at least eighteen years old. Service by a party is defective even if the defendant receives the documents.
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The defense must be asserted either in a pre-answer motion under Rule 12 or in the answer itself. Failure to raise it in the first responsive filing that addresses the claim waives the objection under Rule 12(h).
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