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Practice Points with Mark Scruggs: Sometimes the Best Defense is a Strong Offense

If you are a plaintiff’s lawyer, I’ll bet all too often you receive a responsive pleading contesting service of the summons and complaint and personal jurisdiction over the defendant. Sometimes your client’s case may be threatened if the statute of limitations has expired.

It is tempting to consider such defenses as “boilerplate” defenses and not pay much attention to them. Or you might go back and check the Sheriff’s return of service, or your certified mail or delivery service receipt, and conclude that you have good service, only later (after the statute of limitations has expired) to be served with a motion to dismiss supported by the affidavit of the defendant who now contends that she does not live at the address where service was made, the person accepting service was not authorized to do so, etc.

At Lawyers Mutual, we have had potential malpractice claims reported only after the motion to dismiss has been lost. There is an alternative.

We recommend that plaintiff’s lawyers take every service defense seriously until proven otherwise. We recommend that you challenge the defense without delay.  Initiate discovery on the service issue immediately. A request for admissions, interrogatories, depositions, whatever it takes to ascertain the validity (or not) of the defenses. Don’t get blindsided by a motion to dismiss and a hearing date so near that you do not have time to conduct the necessary discovery to find out the truth.  If you initiate discovery right away, you will be better able to persuade a trial judge that any motion to dismiss should not be heard until discovery is complete. That’s a much better position than arguing for a continuance of the motion to dismiss so that you can conduct the discovery you need.

In summary, don’t allow service defense to languish in a responsive pleading unchallenged. To do so might put you on the defense and your client’s case in jeopardy. Take those affirmative defenses seriously and do what you must do to test them. Remember: the best defense is a strong offense.


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