Motion to Dismiss for Insufficient Service of Process

September 19, 2023

When the serving party fails to observe the rules and procedures for service of process, the defendant can file a motion to dismiss for insufficient service

This article explore’s what proper service of process is, an overview of insufficient service, and how to file a motion to dismiss for insufficient service of process.

What is Service of Process?

Service of process is a legal procedure for delivering a document to an individual, company, or administrative body to notify them of a lawsuit or require them to appear in court. It’s an important step to ensure that all the parties to a lawsuit receive fair notice of the legal action, granting them the opportunity to respond appropriately.

Service of process can take different forms depending on the context and jurisdiction of the case. The most common and reliable form is the personal service where a process server or a law enforcement agent delivers the document to the recipient. 

What is Service of Process?

A process server is a professional responsible for serving a legal document. They’re well-versed in the specific procedures, standards, and requirements for proper service of process. Some of these standards and requirements include:

  • Identifying and serving the right individual or entity named in the court document.
  • Using a substituted service where the named individual is not available. This involves leaving the document with a person of suitable age who is related to the defendant.
  • Impartiality during the process to ensure fair service.
  • Delivering the document on time, which is the most essential requirement in the service of process.
  • If the document is to be served outside the jurisdiction or internationally, specific rules and procedures such as the Hague Service Convention must be duly observed.
  • Providing proof of service or an affidavit detailing when, where, and how the document was served. This serves as evidence that the service was properly completed

Insufficient Service of Process: An Overview

Insufficient service of process occurs when a court document is served in defiance of the rules and regulations of the jurisdiction. Upon the evidence of insufficient service, the court may impose penalties to protect the rights of the recipient and uphold the integrity of the court system.

Grounds for Motion to Dismiss for Insufficient Service of Process

Grounds for Motion to Dismiss for Insufficient Service of Process

The legal reasons for filing a motion for dismissal for insufficient service may include:

  • Defaulting the required timeframe: Some jurisdictions have specified timeframes for serving court documents after the initiation of a lawsuit. For example, in the U.S Federal Rules of Civil Procedure, the court may dismiss the case upon the motion of the defendant if a defendant is not served within 90 days after the complaint is filed.
  • Incorrect method of service: The required method of service may vary across jurisdictions. For instance, some cases require personal or substituted service, while others can be served by mail. The defendant may file a motion to dismiss if the service was made using an incorrect method.
  • Serving the wrong party: A court document must be served to the party named in the document. But the opposing party may serve the wrong person if they do not verify the identity and address of the recipient. In this case, the defendant reserves the right to file a motion to dismiss.
  • Absence of Proof of Service: The defendant may challenge the validity of the service and request for motion to dismiss if a process server fails to provide proof of service or delivers inaccurate information in the documents.
  • Lack of personal or subject matter jurisdiction: A defendant is subject to a court’s personal jurisdiction if they have ties or contact with the jurisdiction, such as residence or business operations. If the defendant is served in a jurisdiction where they have no connection, or if the court lacks subject matter jurisdiction over the case, the service is insufficient.

How to File a Motion to Dismiss for Insufficient Service of Process

How to File a Motion to Dismiss for Insufficient Service of Process

1. Understand the Potential Risks and Consequences

There are potential downsides to filing a motion to dismiss, including legal costs such as attorney and fees, and denial of motion. Moreover, the court has the discretion to give summary judgment against the motion without trial. Consider the risks against the benefits to be sure you’re making the right decision.

2. Prepare the Motion

Start by thoroughly researching the federal and local rules for service of process in your jurisdiction to properly understand your legal grounds (your attorney can help with this). Then, you’ll need to draft the motion and include the following necessary components:

  • Title: Begin with a clear and concise title stating the purpose of the document.
  • Introduction: Write an introduction identifying the parties involved, the case number, and the court where the lawsuit was filed.
  • Statement of facts: Give an overview of the case and outline the facts concerning the service of process. Include how and when you were served, citing any violation of the legal procedure or requirements for the service of process.
  • Legal Argument: Present a detailed argument explaining why the court should grant your motion, including the relevant laws supporting your grounds.

3. Include Supporting evidence

Support your motion with an affidavit and evidence proving the service was insufficient. This may include photographs, videos, witness statements, or other relevant documents.

4. Submit the Motion to the Court

When submitting the motion, follow the court’s procedures and requirements, such as submitting multiple copies and paying court fees. You may also serve a copy of the motion to the plaintiff following the proper service rules.

Remember that failure to adhere to the timeline invalidates the motion. Hence, ensure you submit within the required timeframe.

Response to a Motion to Dismiss for an Insufficient Service of Process

Response to a Motion to Dismiss for an Insufficient Service of Process

When a defendant files a motion to dismiss, the serving party can either oppose the motion or amend the service errors.

Opposing the Motion

If the party believes the process was properly served in accordance with the law, they may oppose the motion. To oppose the motion for dismissal, the serving party needs to write a counter-motion to present a legally rational argument with relevant rules supporting their claim and supporting evidence such as witnesses, photographs, affidavits, and any other relevant document.

Amending Service Errors

If the serving party believes the defendant’s argument is valid, they have the option to amend the service errors by re-serving the document using the proper method and observing relevant requirements. They then report the correction to the court by providing proof of service.

Court’s Perspective: Evaluating the Motion

Court's Perspective: Evaluating the Motion

When evaluating the motion to dismiss for insufficient service, the court considers several factors such as:

  • Legal Compliance of the Service: Here, the court examines how the service was made and whether it complies with the relevant rules and procedures.
  • The Personal Jurisdiction of the Court: The court determines the defendant’s ties with the jurisdiction to determine if it has personal jurisdiction over the defendant. Also, the court may dismiss the case if it lacks subject matter jurisdiction over the case.
  • Due Process and Prejudice: The court checks whether the case followed the due process, ensuring the defendant’s right to adequate notice. If there’s evidence of prejudice against the defendant, the court may favor the motion to dismiss.
  • Plaintiff’s Diligence: Sometimes, improper process of service may be as a result of genuine challenges. To balance the rights and interests of both parties, the court assesses the plaintiff’s diligence in the service attempts. The court may grant summary judgment in favor of the plaintiff if the defendant made reasonable efforts to serve the document properly.

After detailed consideration of these factors, the court may give three possible verdicts:

  • Opportunity to Correct the Service: depending on the circumstances unique to the case, the court may grant the plaintiff an opportunity to correct the service.
  • Denial of motion: where the evidence proves the service was proper or the plaintiff made the necessary effort to ensure proper service, the court may deny the motion.
  • Dismissal of the Case: where the insufficient service cannot be corrected, the court may dismiss the case. Depending on the type of dismissal, the plaintiff may or may not be able to file the case again. For example, if the court dismisses the case with prejudice, the plaintiff cannot re-file the case.

Consequences of Insufficient Service of Process

Delay the Case’s Progress

To ensure fairness and compliance with relevant rules, the court pauses a case to address insufficient process, causing a delay in the case’s progress. The plaintiff may need to re-serve the document, resulting in the re-scheduling of the case and affecting the overall timeline of the case.

Potential for Case Dismissal

As previously mentioned, the court may dismiss the case where corrections cannot be made. Moreover, the plaintiff cannot re-file the case if the court dismisses the case with prejudice,.

Sanctions against the Serving Party

The trial court may impose sanctions on the plaintiff or their attorney to compensate the defendant for costs incurred as a result of the insufficient process. Also, the court may order the party to pay the defendant’s attorney fees as a penalty for intentional service deficiency.

Best Practices to Ensure Proper Service of Process

To ensure proper service of process and avoid severe legal consequences, here are the best practices to follow:

  • Understand and follow the specified rules governing the service of process in your jurisdiction. Also, ensure you serve the document within the specified timeline.
  • Keep a detailed record of all the transactions and attempts made to ensure compliant service. This includes an affidavit and certificate of service. These records would serve as a reference or evidence for future legal proceedings.
  • Hire a reputable process server to help you stay compliant through the process.
  • Monitor and stay informed about the progress of the service and address any possible concerns that may arise. For example, if the first service attempt fails, initiate follow-ups to ensure the document is delivered within the specified timeline.


Correct services of process is essential for safeguarding the right of an individual to due process. The legal consequences for insufficient service are heavy: the court may dismiss your case or impose monetary sanctions on you.

Hence, you need to hire the services of a reliable process server to observe the best practices for the service of process to avoid legal complications. Here at On Call Legal, our experts possess the expertise and experience to provide you with excellent process service and guide you through the process. Contact us today for a seamless and compliant service of process.

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