Defenses and Affirmative Defenses
Procedural Defenses
The defense challenges the method, recipient, or timing of service. Rule 12(b)(5) addresses insufficient service, distinct from Rule 12(b)(4) addressing defects in the process itself.
The defense is waived if not raised in the first responsive filing.
Alternative Names:
Insufficient Service of Process, Defective Service
Why it Matters?
The defense produces quashing rather than dismissal in most cases, which accomplishes little unless limitations have expired in the interim. Its practical value is highest where the plaintiff served near the end of the limitations period and cannot cure within the remaining time. Actual notice does not cure defective service, which is the point plaintiffs most often misapprehend.
Frequently Confused with
Related terms
Frequently asked questions
Does the defense produce dismissal?
Does actual notice cure defective service?
