Civil Procedure/Conflict of Laws

Question 1

Can a motion to dismiss be amended, prior to a responsive filing being made, to add a ground for dismissal that would otherwise be waived because it was not raised in the initial motion to dismiss?

Answer 1

The court should consider the woman’s insufficiency-of-service motion. Although she did not raise her defense of insufficient service of process in her original motion to dismiss, she avoided waiving the defense by promptly amending her motion to dismiss.

Question 2

Rule

Answer 2

Generally, when a party makes a pre-answer motion under FRCP 12, the party must raise any claim of insufficiency of service of process that the party has at the time of the motion; otherwise, the defense is waived. Rule 12 states that “a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.” This rule would mean that the woman waived her Rule 12b defense of insufficiency of service of process when she failed to include it in her original motion to dismiss.
Nonetheless, courts have allowed a motion to dismiss to be amended before the motion is heard, so long as the adverse party is not prejudiced by the amendment and no delay results in the prosecution and determination of the case. Thus, although not expressly provided for in FRCP 12, a preliminary motion may be amended to include a defense or objection inadvertently omitted by the movant.

Question 3

Application

Answer 3

Here, the woman amended her motion to dismiss only two days after making the motion. Taxes had not yet responded to the motion and is not likely to have been prejudiced by the woman’s failure to raise her insufficiency-of-service defense two days earlier. There is no indication that the proceedings will be delayed if her amended motion is treated as adequate to raise the defense.
Therefore, the woman’s insufficiency-of-process defense was not waived by her failure to include it in the original motion.

Question 4

Is service of a summons and complaint sufficient when the documents are not served personally on the defendant, but instead are given to the defendant’s parent at the defendant’s parents’ home where the defendant previously lived?

Answer 4

FRCP 4 allows service by delivering a summons and complaint to an individual personally or by leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there. Here, Taxes sought to serve process on the woman by leaving copy of the summons and complaint at her parents’ home with her father.