A driver files a diversity action against a mechanic in federal court in State A. The mechanic was served with a complaint and summons by a 23-year-old law student who is unknown to both parties. What is the mechanic's best response to the driver's complaint?

A driver files a diversity action against a mechanic in federal court in State A. The mechanic was served with a complaint and summons by a 23-year-old law student who is unknown to both parties. What is the mechanic's best response to the driver's complaint?

• A. Answer the complaint within 14 days, and should not include an affirmative defense of insufficient service of process.
• B. File a motion to dismiss, based on insufficient service of process.
• C. Answer the complaint within 21 days, and should not include an affirmative defense of insufficient service of process.
• D. Answer the complaint, and include an affirmative defense of insufficient service of process.

Answer: (B)

The essential concept is challenging service of process to protect personal jurisdiction. In federal court, a defendant can raise insufficient service of process as a defense under Rule 12(b)(5). Because proper service is required to give the court authority over the defendant, you don’t want to risk waiving that defense by answering first if service may be defective. Here, the mechanic was served by a 23-year-old law student who is unknown to both parties. The service must comply with the Federal Rules (for individuals, personal delivery or delivery to an authorized agent, or leaving at the person’s dwelling with someone of suitable age, etc.). If there’s any doubt that service complied with those rules, the correct route is to move to dismiss for insufficient service of process before filing an answer. This preserves the defense and avoids proceeding without proper jurisdiction. Answering within a specified short window and not raising service issues (or waiting to raise them only in the answer) risks waiving the defect. Including an affirmative defense in an answer is permissible, but the preferred practice when service may be defective is to file a pre-answer motion to dismiss for insufficient service.

The essential concept is challenging service of process to protect personal jurisdiction. In federal court, a defendant can raise insufficient service of process as a defense under Rule 12(b)(5). Because proper service is required to give the court authority over the defendant, you don’t want to risk waiving that defense by answering first if service may be defective.

Here, the mechanic was served by a 23-year-old law student who is unknown to both parties. The service must comply with the Federal Rules (for individuals, personal delivery or delivery to an authorized agent, or leaving at the person’s dwelling with someone of suitable age, etc.). If there’s any doubt that service complied with those rules, the correct route is to move to dismiss for insufficient service of process before filing an answer. This preserves the defense and avoids proceeding without proper jurisdiction.

Answering within a specified short window and not raising service issues (or waiting to raise them only in the answer) risks waiving the defect. Including an affirmative defense in an answer is permissible, but the preferred practice when service may be defective is to file a pre-answer motion to dismiss for insufficient service.