A motion to quash service of a summons is used by a defendant who was improperly served a summons and complaint. A motion can also be filed if the defendant does not have sufficient contact with the state, or does not live in the state, so the jurisdiction is not proper. The motion is commonly used in cases where a landlord is trying to win a lawsuit to evict the tenant.
Obtain a Notice of Motion Form
Download a notice of motion form from your local district court website or visit your court and get a copy from the clerk. Ask the clerk what the deadline is for you to file the motion.
Request a Hearing Using the Notice of Motion Form
Fill out the form. Under plaintiff insert the name of your landlord, or the person who filed the lawsuit against you. You are the defendant. Request a hearing.
Insert a date within 30 days from the filing date. Insert the judge’s name and the address of the courthouse if it is not already on the form. Add, “Special appearance and motion to quash service of summons” as the reason you are requesting the hearing. Sign the form.
Explain Why the Service was Improper
Fill in the reason for the motion. Add information about why the service was improper. If your age, address or any other fact on the certificate of service is incorrect. List any reason that proves the court does not have jurisdiction, including that you do not live in the state. Get the form notarized.
File the Motion with the Court
File the motion with the clerk of your local district court. Get a copy and a certificate of service form from the clerk. Ask the clerk to set it up for the “court call” – so that the judge sets a hearing date.
Serve the Motion on the Plaintiff
Have the motion served on the plaintiff. Contact your local sheriff’s office or process server to have the form served. Give them both the motion copy and the certificate of service. The process server or sheriff will fill it out and return it to you when the plaintiff has been served.
Attend the Hearing
Attend the hearing. The plaintiff will have the opportunity to reply in writing before the hearing or orally during the hearing, and you will have the opportunity to present your reasons for the motion. The judge will make a decision.
File Pleadings, If Necessary
File pleadings within five days of the court date, if the judge denies your motion to quash. Include a request for additional time, if you need it. You can ask for up to 15 additional days to get your case together. The judge cannot enter a default judgment during this time.
You can also choose not to defend your case and the judge will enter a default judgment against you.
Tips
If you want the court to dismiss the case, you can file a motion to dismiss and motion to quash service of summons in one form.
References
Resources
Tips
- If you want the court to dismiss the case, you can file a motion to dismiss and motion to quash service of summons in one form.
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