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Related question. Complaint was served by personal service…

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Related question. Complaint was served...
Related question. Complaint was served by personal service on November 9. Answer was due in 20 days. But Court advised that service was defective because not done by licensed process server. Then Defendant appeared on day 30 with a Motion to Dismiss. Can that Motion be struck as too late or must I respond to it?
Submitted: 8 months ago.Category: Legal
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Answered in 15 minutes by:
12/18/2017
Lawyer: LegalKnowledge, Attorney replied 8 months ago
LegalKnowledge
LegalKnowledge, Attorney
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Lawyer: LegalKnowledge, Attorney replied 8 months ago

What happened when the court found that service was not proper? What was the motion to dismiss in regard to? Did the Judge advise the plaintiff that the defendant needed to be reserved?

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Customer reply replied 8 months ago
The clerk noted the defective service (not the judge) and issued a notice of correction. Plaintiff (me) was planning to amend the complaint and reserve the amended complaint properly. Meanwhile, the Motion to Dismiss (a breach of contract and lemon law claim) came in unexpectedly 30 days later.
Customer reply replied 8 months ago
The Motion to Dismiss did not mention defective service. So does acceptance of defective service constitute service?
Lawyer: LegalKnowledge, Attorney replied 8 months ago

If there is an issue about service, it would need to be properly done. However, if the defendant filed a responsive proceeding, you could argue that they accepted it and responded and that it should stand, as a result of them responding. You could respond to it and should also see if they would agree to accept service and allow it to stand, so you now can respond and defend the motion to dismiss.

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Customer reply replied 8 months ago
My question is whether or not I should make an issue over the late appearance and answer knowing the original defective service was defective? Either a Motion to Strike the MTD or a Motion for Default could be contested over the original defective service. Rather than waste the courts time over this technical issue it seems I should just respond to the MTD. Or is there a chance for a default judgement?
Lawyer: LegalKnowledge, Attorney replied 8 months ago

You need to respond if this was filed and attack it. Unless a default was entered, their motion to dismiss would likely stand and the Judge would need to hear it and rule upon it. If a default had already been entered, it would have needed to be vacated but if this was just late and you did not motion the court to enter a default, this likely will stand and need to be responded to.

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Lawyer: LegalKnowledge, Attorney replied 8 months ago

I just wanted to follow up and see if you had any other questions or needed me to clarify something. I am here to help, so please let me know. Thanks!

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