Insufficient Service of Process Can Cause The Lawsuit to be Dismissed

In Puerto Rico, notifying someone that they have been sued in a civil lawsuit happens with a legal procedure known as “service of process.” Service of process describes the complicated system of statutes, rules, and regulations that must be strictly obeyed both by the plaintiff and those acting on his behalf (process server).

Puerto Rico “service of process” law applies not only to how the plaintiff effectuates service, but also in the procedures used by the defendant in objecting to how process was carried out by the plaintiff.

Puerto Rico Rules of Civil Procedure Rule 10.2; P.R. Laws Ap. tit. 32A, § III,

Rule 10.2 Defenses and objections

Every defense, in law or fact, to a claim for relief in any pleading, whether a complaint, counterclaim, cross-claim or third-party complaint, shall be asserted in the responsive pleading thereto, if one is required, except that the following defenses may at the option of the pleader be made by motion:

(1) lack of jurisdiction over the subject matter

(2) lack of jurisdiction over the person

(3) insufficiency of process

(4) insufficiency of Rule 10.2

(5) failure to state a claim upon which relief can be granted

(6) failure to join an indispensable party

A motion making any of these defenses shall be made before pleading, if a further pleading is permitted. No defense or objection is waived by being joined with one or more defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (5), matters outside the pleading being attacked are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 36 until its final disposition, and all parties shall be given reasonable opportunity to present all material pertinent to such motion under said rule.

(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction

(2) lack of personal jurisdiction

(3) improper venue

(4) insufficient process

(5) insufficient service of process

(6) failure to state a claim upon which relief can be granted; and

"Due process requires proper service of process for a court to have jurisdiction to adjudicate the rights of the parties". Personal jurisdiction is obtained through service of process, which is required in every lawsuit. Without proper service, no valid lawsuit arises. It is only after a plaintiff obtains proper service upon the defendant that the court obtains jurisdiction over the defendant to impose an enforceable judgment of liability and damages. If the plaintiff fails to obtain proper service upon the defendant, the lawsuit must be dismissed due to the court’s lack of jurisdiction. Additionally, if the applicable statute of limitations has run and the plaintiff fails to obtain proper service in a timely manner, he may be prohibited from correcting this error and barred from recovery based upon this defense.

Motion to dismiss for Insufficient service of process in federal courts

Federal Rule of Civil Procedure l2 (b) (5)

b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction;

(2) lack of personal jurisdiction;

(3) improper venue;

(4) insufficient process;

(5) insufficient service of process;

(6) failure to state a claim upon which relief can be granted; and

(7) failure to join a party under Rule 19.

Insufficient service of process is more than a technical defense, it is vital for the process server to be well versed in the rules of civil procedure. Service of process is a constitutionally protected right under the 14th Amendment U.S. Constitution due process clause and Article II, Sec. 7 of the Constitution of Puerto Rico.

14th Amendment U.S. Constitution Due Process Clause

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Article II, Sec. 7 of the Constitution of Puerto Rico, guarantees that no person shall be deprived of his freedom or property without due process of law. The right to life, freedom, and enjoyment of property is recognized as the fundamental right of the human being. There will be no death penalty. No person shall be deprived of his freedom or property without due process of law, nor shall any person in Puerto Rico be denied equal protection of the laws.

Everyone's heard the phrase "You Get What You Pay For".

"Don't Risk Your Case Being Dismissed by a Inexperienced Process Server"

by Julio E. Menchaca Valentín, BSCJ, Paralegal