Also known as: insufficient service of process · defective service of process
Written by attorneys · grounded in primary & secondary sources — see below
A defense asserting that the plaintiff failed to deliver the summons and complaint using a method authorized by the applicable rules of civil procedure. The defense challenges the manner of delivery rather than the form of the documents themselves. Actual notice to the defendant does not cure a defect in the authorized method of service.
North Shop sued its former manager Molly for stealing customer lists. A private investigator slid the summons and complaint under the locked door of Molly's apartment after learning from neighbors that she was traveling. Molly moved to dismiss. The court granted the motion because the delivery method failed to satisfy any authorized form of service on an individual.
Colleton Preparatory Academy sued Hoover Universal and elected to serve process by certified mail with return receipt requested and delivery restricted to the addressee under South Carolina law. The company received the mailing and the court found service valid. The academy's choice of an authorized state-law method defeated any claim of insufficient service of process.
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Actual notice does not excuse a failure to follow an authorized method of service. Courts require strict compliance with the rules even when the defendant learns of the suit through other means such as neighbors.
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Service must be performed by a person who is at least eighteen years old and not a party to the action. A named plaintiff may not personally deliver the papers even if the delivery reaches the defendant.
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Rule 12(b)(5) addresses defects in the manner of delivering process while Rule 12(b)(4) addresses defects in the form or content of the summons itself. Objections to who performed the delivery fall under insufficient service of process.
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The defense is waived if not raised by pre-answer motion or in the answer whichever comes first. It must be asserted before or together with other Rule 12(b) defenses to avoid waiver under the consolidation rules.
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…Hunter filed the instant suit against Offshore, among others, on November 19, 2007. Offshore filed a motion to dismiss for insufficiency of service of process on June 19, 2008. That motion contained the following language in its second paragraph: "None of these Defendant Movants submits to the jurisdiction of this Court. Defendants expressly…