![]() ![]() 12(b)(6).Īccording to the Supreme Court’s decision in Haines v. Dismissing the Plaintiff’s complaint would therefore amount to a denial of the Plaintiff’s access to justice and right to be heard. ![]() In that vein, the Plaintiff avers that it has reasonably given its reasons and challenges why service was full of flaw. Consequently, the Plaintiff further attempted the service via mail.Īccording to the Ninth Circuit Court of Appeals, the courts have a discretion to either dismiss or retain an action if the plaintiff fails to sufficiently demonstrate effective service. Twice, the process server attempted to serve process on the defendant (On July 9 and 15, 2020), but the service was not successful. First, after being notified of her errors in effecting service contrary to Rule 4, she engaged the services of a process server. In that regard, the Plaintiff maintains that she made all reasonable effort to ensure process was served to the defendant. In such circumstances as these, the courts require that the plaintiff shows that she used “the greatest possible due diligence” in ensuring the defendant was timely served with process once he has been made aware of a problem with service”. The Plaintiff further understands that she (the Plaintiff) has the burden to prove that the service of process was valid. The Plaintiff understands that service of process is “the very bedrock of due process.” McRae v. Consequentially, the Plaintiff continued experiencing challenges with the process. Further, when the Plaintiff acted responsibly, and engaged the services of a process server, the defendant refused personal delivery of the summons and instead requested service by certified mail. At that time, the Plaintiff, being pro se, reasonably experienced challenges with the summons. A couple of days after the said filing, the Plaintiff received notification from the Clerk of the Court as to summons for the relevant parties. ![]() The Plaintiff duly filled the pro se complaint form and referred to an attached file outlining the Plaintiff’s allegations. On March 27, 2020, the Plaintiff, pro se, brought a suit against the Defendant for wrongful termination, seeks compensation for the said action in the amount of $750,000. Where a complaint falls short of the general pleading standard in Rule 8, “in view of the consequences of dismissal of the complaint alone, and the pull to decide cases on the merits rather than on the sufficiency of pleading, district courts often afford plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case. When a 12(b)(6) motion is used to test the sufficiency of the complaint in a civil rights case, the court will be “especially solicitous of the harms alleged.” Id. 2004).ĭismissal under Rule 12(b)(6) is proper only when the complaint lacks a cognizable legal theory or does not allege facts that, when taken as a whole, raise the claim for relief above mere speculation. Once a defendant challenges the sufficiency of service of process on them, the plaintiff bears the burden of establishing the validity of the service as governed by Rule 4. 1988).ĭefendant presents arguments under Federal Rules of Civil Procedure 12(b)(5) (insufficient service of process), and 12(b)(6) (failure to state a claim upon which relief can be granted). Tribe, American Constitutional Law § 10-18 at 756 (2d ed. Herman, Pro Se Litigation – Litigating Without Counsel: Faretta or For Worse, 42 Brooklyn L.Rev. Plaintiff, proceeding pro se, respectfully request that the Court deny Defendant’s Motion to Dismiss her Complaint, brought pursuant to Federal Rule of Civil Procedure 12(b)(5) and 12(b)(6).īell Atlantic Corp. MOTION TO DISMISS PLAINTIFF’S COMPLAINT AND BRIEF IN SUPPORT ![]()
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