Ten days after service of summons, defendant Kay filed a motion to dismiss the complaint for collection of sum of money against her on the ground of improper service of summons, on the basis of which the court did not acquire jurisdiction over her person. If you were the judge, how would you rule? Explain briefly. (5 points)
Suggested answer only. Not an official answer and not legal advice.
If I were the judge, I would deny the motion to dismiss.
Under Section 12, Rule 15 of the Rules of Court, a motion to dismiss is a prohibited motion, except when based on lack of jurisdiction over the subject matter, litis pendentia, res judicata, or prescription. Under Section 12, Rule 8, lack of jurisdiction over the person of the defendant must instead be raised as an affirmative defense in the answer.
Here, defendant Kay filed a motion to dismiss based on improper service of summons and lack of jurisdiction over her person. Since lack of jurisdiction over the person is not among the four exclusive allowable grounds for a motion to dismiss, Kay's motion constitutes a prohibited motion that cannot be entertained by the court.
Therefore, I would deny defendant Kay's motion to dismiss.
This is not an official scoring system and carries no weight with the Supreme Court or any bar review provider. It measures how much of the suggested answer's wording your response covers, not whether your reasoning is correct. For practice only.
Quick check
Under the amended Rules of Civil Procedure, which of the following is a valid ground for a motion to dismiss?
Lack of jurisdiction over the subject matter is one of the four exclusive allowable grounds for a motion to dismiss.
How must the defense of lack of jurisdiction over the person of the defendant be raised under the amended rules?
Lack of jurisdiction over the person must be raised as an affirmative defense in the answer under Section 12, Rule 8.
What should a trial court do if a defendant files a motion to dismiss based solely on improper service of summons?
A motion to dismiss based on improper service of summons is a prohibited motion and must be denied.
What is the remedy of the trial court if it finds during the hearing on affirmative defenses that summons was improperly served?
Upon finding improper service during an affirmative defense hearing, the court orders the re-issuance and service of summons.
How many exclusive grounds are allowed for a motion to dismiss under Section 12, Rule 15 of the Rules of Civil Procedure?
Rule 15 allows a motion to dismiss on only four exclusive grounds: subject matter jurisdiction, litis pendentia, res judicata, and prescription.
Learn more about these topics
1. Prohibited Motions
Under Section 12, Rule 15 of the amended Rules of Civil Procedure, a motion to dismiss is generally a prohibited motion. The court shall not entertain any motion to dismiss except on four exclusive grounds: lack of jurisdiction over the subject matter, litis pendentia, res judicata, and prescription. Any motion to dismiss filed on grounds other than these four exceptions must be denied outright by the trial court.
2. Jurisdiction Over Defendant
Under the amended Rules of Civil Procedure, lack of jurisdiction over the person of the defendant due to improper service of summons is no longer a valid ground for a motion to dismiss. Instead, Section 12, Rule 8 mandates that this ground must be raised as an affirmative defense in the answer. The court may then conduct a summary hearing on such affirmative defense within fifteen calendar days from the filing of the answer.
3. Affirmative Defenses
When the defense of lack of jurisdiction over the person is raised as an affirmative defense in the answer, the trial court has the discretion to conduct a summary hearing thereon. If the court finds that summons was improperly served, it shall order the re-issuance and proper service of summons rather than dismissing the action outright. This procedural rule ensures that cases are decided on their merits while affording the defendant proper due process.