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Get Out of My Life! Rule 12 Motions, Part Two

July 7, 2016
Elizabeth Scott Moïse

Good things come to those who wait. As promised, this edition of the Scrivener completes our journey through Rule 12 motions, having traveled in the last issue through motions under Rule 12(b)(1)-(3).

  • 12(b)(4) Insufficient process (can be waived by failing to raise it in an answer or motion to dismiss or by failing to raise it in the first motion to dismiss)

“An objection under Rule 12(b)(4) concerns the form of the process rather than the manner or method of its service. Technically, therefore, a Rule 12(b)(4) motion is proper only to challenge noncom­pliance with the provisions of Rule 4(b) or any applicable provision incorporated by Rule 4(b) that deals specifically with the content of the summons.” 5B Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure § 1353 (3d ed. 1998) [hereinafter “Wright & Miller”].

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