A teacher from State A filed a diversity action against a janitor from State B in State B federal court. The janitor was served with a summons from the court, but not a copy of the complaint. Which motion or pleading should the janitor's attorney file?

A teacher from State A filed a diversity action against a janitor from State B in State B federal court. The janitor was served with a summons from the court, but not a copy of the complaint. Which motion or pleading should the janitor's attorney file?

• A. An answer, including an affirmative defense of lack of personal jurisdiction.
• B. An answer, including an affirmative defense of insufficient service of process.
• C. A motion to dismiss for insufficient process.
• D. A motion to dismiss for lack of subject-matter jurisdiction.

Answer: (B)

The key idea is that service of process in federal court must include both the summons and the complaint. If only the summons is served, the service is defective, and the defendant should raise that defect to avoid being forced into an untimely or improper response. Raising insufficiency of service of process as an affirmative defense in the answer is the best course because it directly flags the procedural flaw for the court and keeps the dispute about service within the pleading framework. This preserves the defendant’s rights and allows the plaintiff to cure the defect by providing proper service (copy of the complaint with the summons) before the case proceeds. It also aligns with how Rule 12 defenses operate, giving the court a clear basis to address the defective service without prematurely dismissing on jurisdictional grounds. Options focusing on lack of personal jurisdiction or lack of subject-matter jurisdiction miss the issue, since the defect here is procedural (improper service), not jurisdictional. A separate motion to dismiss for insufficient process is a viable path, but pleading the affirmative defense in the answer is the conventional, immediate way to preserve the service challenge within the case flow.

The key idea is that service of process in federal court must include both the summons and the complaint. If only the summons is served, the service is defective, and the defendant should raise that defect to avoid being forced into an untimely or improper response.

Raising insufficiency of service of process as an affirmative defense in the answer is the best course because it directly flags the procedural flaw for the court and keeps the dispute about service within the pleading framework. This preserves the defendant’s rights and allows the plaintiff to cure the defect by providing proper service (copy of the complaint with the summons) before the case proceeds. It also aligns with how Rule 12 defenses operate, giving the court a clear basis to address the defective service without prematurely dismissing on jurisdictional grounds.

Options focusing on lack of personal jurisdiction or lack of subject-matter jurisdiction miss the issue, since the defect here is procedural (improper service), not jurisdictional. A separate motion to dismiss for insufficient process is a viable path, but pleading the affirmative defense in the answer is the conventional, immediate way to preserve the service challenge within the case flow.