If a plaintiff serves the complaint but not the summons in a federal diversity action, which approach may the defendant take to preserve the defense of insufficient service?

If a plaintiff serves the complaint but not the summons in a federal diversity action, which approach may the defendant take to preserve the defense of insufficient service?

• A. An answer including an affirmative defense of lack of service.
• B. A pre-answer motion to dismiss for lack of service.
• C. File a motion for summary judgment.
• D. Wait for service of the summons before responding.

Answer: (B)

The essential idea is that service of process must be proper to give the court jurisdiction over a defendant, and a defective service can—and should—be challenged before any responsive pleading is filed. When the plaintiff has served only the complaint and not the summons, service is not complete, so the defendant can bring a pre-answer challenge under Rule 12(b)(5) to dismiss for lack of service. This preserves the defense because it tackles the jurisdictional defect head-on before the defendant is dragged into an answer or trial. If the defendant waits to answer or tries to raise the issue later, the defense may be waived, or the process may move forward without proper jurisdiction. A pre-answer motion to dismiss for insufficient service is the proper vehicle to prevent that and to allow the plaintiff to re-serve properly if the court so orders. Filing a motion for summary judgment or waiting for service would not address the defect at this early stage, and an answer asserting lack of service is generally not the preferred method because it risks waiving the defense.

The essential idea is that service of process must be proper to give the court jurisdiction over a defendant, and a defective service can—and should—be challenged before any responsive pleading is filed. When the plaintiff has served only the complaint and not the summons, service is not complete, so the defendant can bring a pre-answer challenge under Rule 12(b)(5) to dismiss for lack of service. This preserves the defense because it tackles the jurisdictional defect head-on before the defendant is dragged into an answer or trial. If the defendant waits to answer or tries to raise the issue later, the defense may be waived, or the process may move forward without proper jurisdiction. A pre-answer motion to dismiss for insufficient service is the proper vehicle to prevent that and to allow the plaintiff to re-serve properly if the court so orders. Filing a motion for summary judgment or waiting for service would not address the defect at this early stage, and an answer asserting lack of service is generally not the preferred method because it risks waiving the defense.