how to Counter Motion to Dismiss For Improper Service

[crash5050]

I hired a Process Server to serve a Collection Agency, the did, and the complaint was signed for by an em-loyee at the Collection Agency. The attorney's are contesting that service was improper because it was not served on the attorney. Can I argue that the Process server asked who should the papers be served upon, and this lady said I will sign for them? The process server has send me an affidavit stating that this lady said she was agent for service.

[1stStep]

Was this in response to a case they filed against you? If not, look up the rules for service for your state...

You're always safe serving their registered agent.

[crash5050]

I am sueing them, My Court appointe dprocess server entered the offices of the Company, and a lady told her that she was designated to be a registered agent, signed the summons, and check the box as being registered agent.

None the less, not a fatal defect, because, it is obvious that the defendant has read the complaint, or else how would he have known there was one? I will just ask leave of the court to serve the bastard in person.

[1stStep]

There you go...

[crash5050]

I just whipped this up, any htoughts, the formatting will probally go to heck, but:

In the United States District Court

Eastern District of Arkansas

Pine Bluff Division

Me

Plaintiff, pro se

vs. SomeCase

them

Defendant

Answer to Motion To Dismiss

Now Comes, Me, Pro Se to answer the Defendants Motion to Dismiss.

1. Plaintiff stipulates Defendants motions P 1-2

2. On March 2nd Plaintiff sent a certified copy of the Complaint, and the Summons overnight mail Return Receipt Requested to Process servers, 40 in Arkansas, Arkansas 72653. The Parcel was accepted by Cheryl Shannon on March 5th 2012

3. Ms Process Server, a duly appointed process server, entered the offices of Scumbag Debt Collector, Inc., , Arkansas, and asked for Scumbag Lawyer, Ms Scumbag Lackey stated that she was an authorized representative of Mr. Scumbag and could act as Agent for Service. Ms Lackey physically signed the summons, and checked the box, agent for service. (see attached affidavit from Process Servers)

4. The Defendant, obviously has in its possession a copy of the complaint, clearly indicating that MS Lackey did indeed serve Mr. Scumbag or his designated associate with the summons, and complaint.

5. The plaintiff made reasonable efforts to serve the defendant, in accordance with FRCP4(h). Plaintiff had reason to believe that the person, Ms. Scumbag Lackey had the authority as either a Manager, or general agent for the Defendant.

6. Ms Process Server, had reason to believe by statements made by Ms Lackey, that she had the authority to accept service for the Defendant.

7. The FRCP4(2)( permits the uses of Alternatives to the United States Mails in sending Notice and Requests. Mr. Scumbag was notified by Electronic Mail on Thursday March 22 2012 at 10:51, as evidenced by his read receipt of the electronic mail. (Attached is the email and the read receipt, both time date stamped)

Brief

Because the Plaintiff is pro se, the Court has a higher standard when faced with a motion to dismiss, White v. Bloom, 621 F.2d 276 makes this point clear and states: A court faced with a motion to dismiss a pro se complaint must read the complaint's allegations expansively, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972), and take them as true for purposes of deciding whether they state a claim. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972).

Prayer

The Plaintiff submits that upon reasonable belief, and in accordance with the FRCP4(h), did in good faith make proper and legal service to the Defendant. We respectfully request that in the interest of justice, that the MOTION TO DISMISS be denied and this matter joined for a FRCP 26(f) meeting. Alternatively, we would ask leave of the court to deny the MOTION TO DISMISS and grant leave to serve in person Scumbag attorney at a time and place that is convenient for him to receive such service.

Respectfully Submitted,

___________________

Me

[usagi555]

Look at it on the bright side: They'll flower the courts with frivolous motions if they're willing to pull this crap.

[Coltfan1972]

Why don't you just reserve them and make their motion moot?

Also, this is what I'm planning to do.

(d) WAIVING SERVICE.

(1) Requesting a Waiver. An individual, corporation, or association

that is subject to service under Rule 4(e), (f), or (h) has

a duty to avoid unnecessary expenses of serving the summons.

The plaintiff may notify such a defendant that an action has

been commenced and request that the defendant waive service

of a summons. The notice and request must:

(A) be in writing and be addressed:

(i) to the individual defendant; or

(ii) for a defendant subject to service under Rule 4(h),

to an officer, a managing or general agent, or any

other agent authorized by appointment or by law to receive

service of process;

( name the court where the complaint was filed;

© be accompanied by a copy of the complaint, 2 copies

of a waiver form, and a prepaid means for returning the

form;

(D) inform the defendant, using text prescribed in Form

5, of the consequences of waiving and not waiving service;

(E) state the date when the request is sent;

(F) give the defendant a reasonable time of at least 30

days after the request was sent—or at least 60 days if sent

to the defendant outside any judicial district of the United

States—to return the waiver; and

(G) be sent by first-class mail or other reliable means.

(2) Failure to Waive. If a defendant located within the United

States fails, without good cause, to sign and return a waiver

requested by a plaintiff located within the United States, the

court must impose on the defendant:

(A) the expenses later incurred in making service; and

( the reasonable expenses, including attorney’s fees, of

any motion required to collect those service expenses.

You're from my state and as you know, hardly anybody fights these creditors. However, you just really jump out there and act, then ask questions later. You jump the gun. For example, that brief is for a motion to dismiss for failure to state a claim.

They did not move to dismiss for that, but for improper service. Those cases you cited are totally irrelevant for what you're trying to accomplish.

I want you to win, but you need to slow down and get all your ducks in a row. I'm afraid they are going to pick you apart on procedure. They're already trying to get it dismissed and have not even addressed the allegations of your suit.

I think I know a good deal for not being an attorney, when it comes to procedure and collection laws and lawsuits. I've been working my complaint for the past month and it is still being tweaked while I spend a few hrs a night on the rules and looking up supporting cases for all of my causes of action. I just found another error today and I've proofed it about 400 times at this point.

I know you are/were in the military (Thank you by the way). You know how there is a ton of preparation and building up of the forces prior to attacking. Not to trivialize a war in the military sense, of course there is no comparasion on the serious level meter, but treat this like you would in preparing for war as far as getting prepared before you strike.

[legaleagle]

"improper service" - Google Scholar

Look through these. You can change that paragraph with the case law. I'm not sure you really need any, this is strictly procedural, but I guess one or two wouldn't hurt.

[Coltfan1972]

Legal,

I had never even heard of Google scholar until I saw you making reference to it a few months ago. You can really post some very relevant links using Google scholar. Thanks !!

[legaleagle]

Yeah, it's a great search tool. I found it more by accident than anything else. When you use it, click on the advanced search tab. Then you can specify what courts you want to search. Type in your keywords and hit the button. I posted a bunch of case law in a thread, then admin moved into the black hole of case law, lost forever. Now we have Agelina or Angelite or Massengill Light or whatever the heck her name is 40 times "Hi I'm new to the forum." Hope the admin wakes up and cancels his / her ticket.

[crash5050]

I just hired another processor to serve him Monday Morning, motion is Moot. Then comes the fun part. But I am still filing an answer to the defendants motion, because I think they are just trying to play games and sidestep process. The server's affidavit specifically states, Ms So and so, said that she was agent for service. A motion to dismiss in not a responsive answer, unless the court grants the motion to dismiss, and I doubt they will since I will have rendered the motion moot monday, I am going to "flower" the court with a motion for default judgement.

[usagi555]

Legal,

I had never even heard of Google scholar until I saw you making reference to it a few months ago. You can really post some very relevant links using Google scholar. Thanks !!

I love it too. And like legal said, you can find some wonderful stuff by using the advanced search tool.

It's in my bookmark toolbar.

[crash5050]

Ok, I got them re-served this morning, but I have filed a motion to stay the original service, because they ahve not filed a responsive pleading to the complaint, I knwo they have 10 days after the ruling on the motion to dismiss but I am going to hammer a motion for default judgement tomorrow since they did not respond in the alloted time.

[Coltfan1972]

Crash,

Your just asking for this judge to start getting ticked at you with all these pleadings before this thing is even off the ground.

You've already had them served two times and filed an amended complaint and this thing is less than a month old.

Slow down my friend, please. It's great to be aggressive, shoot that is my style, but your jumping the gun every step of the way. This is going to come back and bite you, when you do this enough and the other side moves to dismiss with prejudice. Federal Court rules are strict.

[crash5050]

Well, I had to serve them twice, they claimed the 1st service was improper, I claim that it was, hence the second service, to insure the motion got denied, the motion to stay the initial service is so that they don't get 21 more days. I had no choice in either of these matters. I am to the mattreses with these folks.

I know the default motion is going to get denied, but what it does is let the defendant know pretty much how much money I am trying to get from them, hopefully they will say crap, it aint worth it. But, I suspect they are going to dig in on this one, I had the Attorney General after them, they may be pissed at me. But that is ok. I will stroll into the courtroom with all my badges and medals shined, and argue my case. Call wittnesses and cross examine theirs, I am ready to fight, I am like David Banner, you wouldn't like me when I am angry.

[Guest usctrojanalum]

Colt fan is right, you need to chill with the motions. And if they responded with a motion to dismiss your complaint, that is considered an answer and you will not be granted a default judgment. There is no default, there has been an appearance in the action already.

[crash5050]

So what, we wait until the Judge rules on the motion to dismiss?

[legaleagle]

Yes, let things even out. If you burden the Court with frivolous motions, they will not view you favorably. Clerks get this stuff first, you make the Clerk's job harder and he / she will bury you. Follow procedure. By all means be aggressive, but do so within the rules. Judges appreciate knowledgeable pro ses. They do not appreciate anybody who comes into their court who does not know or comply with procedure.

[crash5050]

I have read rule 7, and in it includes what can be considered responsive filings, and a motion to dismiss is not one of them.

(a) Pleadings. Only these pleadings are allowed:

(1) a complaint;

(2) an answer to a complaint;

(3) an answer to a counterclaim designated as a counterclaim;

(4) an answer to a crossclaim;

(5) a third-party complaint;

(6) an answer to a third-party complaint; and

(7) if the court orders one, a reply to an answer.

They have done none of these, if I get the process validated on the 6th of March, then by COB tomorrow, they are in default. Of course I could be reading that wrong.

[Coltfan1972]

I have read rule 7, and in it includes what can be considered responsive filings, and a motion to dismiss is not one of them.

(2) an answer to a complaint;

Their motion to dismiss was their answer. They answered the complaint, as USCTROJANALU pointed out. You might have a good case but they are going to end up beating you on procedure alone.

You got the AG after them, they are going to fight you. Right now though your doing their job for them and just beating yourself.

Your getting ready to start getting hit with court costs and attorney fees for all these frivilous pleadings you are filing. You don't want to lose that way, but I'm sorry, you're going right down that path and they are just leading you right down it, and you don't even see what they are doing to you.

[crash5050]

So, they filed a motion to dismiss, I filed an answer, then I got a server to serve the Attorney by hand this morning. Motion to dismiss for improper service moot. Now what, they still have not answered the complaint? I am just confused as to how the motion to dismiss, that is no longer a valid motion sicne they cannot claim improper service, can be used to answer the allegations in the complaint.

Coltfan sues me for the 1 million dollars that I wrote that I have in my checkbook, I file a motion to dismiss, motion denied as moot" Coltfan still wants that FAKO million, where do I get to tell the court that 1st off I aint giving my fake million to coltfan, and this is why?

[Coltfan1972]

Your missing the point. Your pulling a My Cousin Vinny (well not that bad), your points are excellent, you case might be excellent. However, you're trying to try this thing in the complaint and answer stages.

An answer just basically means they intend to defend, a notice of appearance in a way. By moving to dismiss they have put you on notice they obviously intend to dismiss. Their might be, you would have to check the rules, the need for them to file an answer after the motion to dismiss is denied, or deemed moot by the court.

To answer your question on if I sued you. You might have to file an "official answer" after the court denies the motion or deems it moot. You're the one deeming the motion moot, which I happen to agree with you. However, you don't call the shots, the court does.

Again, in my opinion, slow way down. I feel they are going to drag this thing out and make a ton of procedural moves, then if that does not work actually get to the merits of your case.

In other words, like a criminal defense attorney. They spend the first half of the case trying to win on procedural errors by the police, getting the evidence suppressed, filing all kinds of motions that don't have to do with guilt or not, then if all that fails, finally say, okay well my client denies everything anyway, we want a trial.

Last thing you want to do is get this thing dismissed and be out 350.00 plus the cost of two times to serve them. Yes, you would be able to file again most likely, but then you got another 500.00 or so to dish out again, but the main thing would be it would start again from scratch.

[crash5050]

Ok, Ni more motions, until the Judge rules on the motion to dismiss, and they file the answer. I am smart enough to know that I am a dummy, so i will take the advice of the folks who are smart enough to knwo that I am a dummy too.

[Coltfan1972]

You're not a dummy, that's for sure. You've filed a federal lawsuit pro-se, and convinced an attorney general to personally go after a collection agency to get the neg mark off your report.

You just have to let the process play out now.

[KentWA]

I agree with Coltfan's last comment. You have fired your opening salvo, now you need to take the time to determine how they are going to maneuver before you fire for effect. If you do not have patience you are going to just waste time and ammo, as well as piss off the judge.