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18. Which motion or pleading should the journalist's attorney file?
A novelist filed a diversity action against a journalist in federal district court in State A. The novelist then served the journalist with the complaint only, without a summons.
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lack of subject-matter jurisdiction;lack of personal jurisdiction;improper venue;insufficient process;insufficient service of process;failure to state a claim upon which relief can be granted; andfailure to join a necessary party under FRCP 19.The motions referred to in FRCP 12(b) are directed solely at the pleadings and must be decided solely by reference to them. All FRCP 12(b) defenses are based on the defendant asserting the invalidity of the plaintiff's claim or pleading.
Under FRCP 4, the summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed.
C is correct. Service of process was insufficient because the journalist was not served a summons as required by the FRCP. Under FRCP 4, the defendant must be served with a summons (a formal notice of the suit) and a copy of the complaint.
Here, serving the journalist without a summons is insufficient service pursuant to the FRCP. The journalist may make a FRCP 12(b) pre-answer motion against the novelist on the ground of insufficient service or raise this defense in his answer.
A is incorrect. Pursuant to the FRCP, a defendant must be served both a summons and a complaint. Here, the journalist was not served a summons. Thus, service was not proper.
B is incorrect. This answer states that filing an answer is necessary to raise the defense, which is incorrect. The journalist has multiple options in responding to insufficient service. Thus, the claim will not be waived automatically due to the failure to perform the one action stated here.
D is incorrect. Insufficient process is a FRCP 12(b) defense that either may be the basis of a motion to dismiss or can be included as a defense in the answer.