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Opposing counsel produced a Proof of Service by Mail.

Although it was signed by...
Opposing counsel produced a Proof of Service by Mail. Although it was signed by the person mailing it, it never arrived in the mail. They didn't use certified mail. Is there any way to object to improper service? 2nd question - even had it arrived in the mail, it would have been untimely because it was due 21 days after the complaint (federal) and they didn't mail it until day 26. Isn't that an 'admission' for the parts that were untimely?
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Answered in 1 hour by:
11/17/2017
Patrick, Esq.
Patrick, Esq., Attorney
Category: Personal Injury Law
Satisfied Customers: 14,377
Experience: Attorney with significant personal injury experience
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Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

You could try objecting, but the presumption is that if someone is swearing under penalty of perjury that they mailed it to you on a certain day, that they are telling the truth. Judges hate deciding cases on technicalities such as whether a document in the course of litigation was properly served. They would much rather rule on the merits of the case. The few times I've seen someone claim they didn't receive a document allegedly served by first class mail, the court found a workaround so that the serving party was not penalized. When you think about it, this really does need to be the default way of dealing with things--otherwise, the receiving party would always claim they didn't receive documents sent by first class mail as a way of getting out of things and trapping the other side.

Now, if they are admitting to having served documents on a date past the deadline for serving them, yes, that would absolutely be an admission to improper service and on that basis, any missed deadline should be enforced.

I hope this helps.

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Customer reply replied 8 months ago
We are filing a First Amended Complaint shortly. Would we file a motion to object to the improper service based on missing the deadline at the same time? Or is it ok to include the objection to improper service in the FAC? We don't want to waive the improper service by filing a FAC that does not address the improper service, but we don't want to leave the defendants (the who did not respond timely off the FAC in case the judge rules that the service was proper after all.

Am I correct in assuming that the improper service was in relation to the defense serving their answer to the original complaint? If that is the case, I can tell you right now you are not going to convince a judge to issue a default judgment in your favor over a service issue. Judges hate defaults and this goes back to what I was explaining about about judges not wanting cases to be decided on technicalities. There are also a bunch of exceptions in the rules governing defaults, which allow courts to vacate a default when there is good cause. so even if you had definitive proof that the answer was not served in a timely manner, you probably aren't going to achieve anything constructive. Instead, you are going to waste a lot of time and energy, and likely frustrate the court. Your time and energy are much better served litigating the merits of the case. This is just me being honest.

Patrick, Esq.
Patrick, Esq., Attorney
Category: Personal Injury Law
Satisfied Customers: 14,377
Experience: Attorney with significant personal injury experience
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