If a defendant is served with a summons but not the complaint, which is a valid way to preserve the defense of insufficient service?

If a defendant is served with a summons but not the complaint, which is a valid way to preserve the defense of insufficient service?

• A. File an answer including the defense of insufficient service.
• B. File a pre-answer motion to dismiss for insufficient service.
• C. Do nothing.
• D. Seek default.

Answer: (B)

When a defendant is put on notice by a summons but the complaint hasn’t been served, the issue is a defect in service of process that can deprive the court of jurisdiction over the defendant. The proper way to protect against that defect is to challenge it before any responsive pleading: file a pre-answer motion to dismiss for insufficient service (often called a motion to dismiss for insufficiency of process or to quash service). This keeps the defense alive and avoids its waiver, and it can lead to dismissal or an order requiring proper service. If the defendant instead files an answer, the defense to improper service is typically waived in many jurisdictions because a response signals an appearance and consent to proceed, making it difficult to contest the service later. Doing nothing gives the plaintiff time to move forward, potentially culminating in default or other judgments based on the defective service. Seeking default is not appropriate for a service defect because default arises from a failure to respond to a properly served action, not from defective service.

When a defendant is put on notice by a summons but the complaint hasn’t been served, the issue is a defect in service of process that can deprive the court of jurisdiction over the defendant. The proper way to protect against that defect is to challenge it before any responsive pleading: file a pre-answer motion to dismiss for insufficient service (often called a motion to dismiss for insufficiency of process or to quash service). This keeps the defense alive and avoids its waiver, and it can lead to dismissal or an order requiring proper service.

If the defendant instead files an answer, the defense to improper service is typically waived in many jurisdictions because a response signals an appearance and consent to proceed, making it difficult to contest the service later. Doing nothing gives the plaintiff time to move forward, potentially culminating in default or other judgments based on the defective service. Seeking default is not appropriate for a service defect because default arises from a failure to respond to a properly served action, not from defective service.