Q: If i filed motion to dismiss improper service do I have to file counter claim with the motion
Plaintiff filed civil suit. Judge told her she could not represent llc only attorney can. Gave her time to file amended complaint. Plaintiff filed amended complaint added defendants and served by us mail with no summons included. W/o permission to serve by mail. Defendant filed motion to dismiss due to improper service ie no summons. Should the counterclaim be served with the motion to dismiss? If didnt file counterclaim did defendant lose right to file counter claim now?
A:
When you file a motion to dismiss due to improper service, such as not receiving the summons correctly, this motion is typically addressed before any substantive claims are considered. This is because if the service is deemed improper, the court may not have jurisdiction, and the case could be dismissed without addressing the merits.
You are not required to file a counterclaim together with a motion to dismiss for improper service. These are separate legal actions. A motion to dismiss challenges the legal sufficiency of the complaint, while a counterclaim is your opportunity to assert your own claims against the plaintiff.
However, if you choose not to file a counterclaim at this time, you generally do not lose the right to file one later. The rules can vary depending on your jurisdiction, but usually, you can file a counterclaim up until a certain point specified by the court's rules, often up to a certain time after you've filed your answer to the complaint. It's essential to check the local court rules or consult with an attorney to understand the specific timeline and requirements in your case.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
