Ease Into Prep with a BAR^® Question of the Day

The correct answer is: (D) No, because she failed to include the objection in the motion to dismiss.

A defendant may properly assert the objection of insufficient service of process in their first response. The sister failed to raise the objection in the motion to dismiss. Therefore, even though the brother is a party to the suit and service was not effected, the sister lost her opportunity to object to the insufficient service by not including the objection in her first response, and therefore waived her opportunity to object to service.

(A) Incorrect. Yes, because she was not served with process while at her residence.

There is no requirement that service of process be effected at a defendant's residence.

(B) Incorrect. Yes, because service of process may not be effected by a person who is a party to the suit.

Service of process cannot be effected by someone who is either under 18 years of age or is a party to the suit. Here, the brother is the plaintiff, therefore he may not effect service of process. However, the sister did not raise Rule 12(b)(5) in her first response, the motion to dismiss. As such, it is deemed waived and lost forever. Therefore, she will not prevail on her objection of insufficient process.

(C) Incorrect. No, because she clearly indicated that she was aware of the suit.

The fact that a defendant becomes aware of a suit regardless of whether service of process was properly effected does not cure any defects in the service. Here, service of process was defective because it was effected by the brother, who is a party to the suit.