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?
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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.
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