Help! Quick!

[jilly]

Has anyone ever filed a Motion to Dismiss for Improper Service?  If you have please post it for me and the procedure to follow!!


Sheriff served Order to Appear and Show cause for Failure to Comply with Support Order and Order to Produce Records and Licenses last night. Court date is Monday, December 20 at 9:30 a.m.  DH and I weren't home.  DH's Uncle was there babysitting and he accepted service.  Under N.C.G.S Rule 4 (j)(1)a. Process - Manner of service to exercise personal jurisdiciton. In any action commenced in a court of this State having jurisdcition of the subject matter and grounds for personal jurisdiction as provided in G.S. 1-75.4, the manne rof service of process within or without the State shall be as follows: (1) Natural Person. -- Except as provided in subsection (2) below, upon a natural person: a. By delivering a copy of the summons and of the complaint to him or by leaving copies thereof at the defendant's dwelling house orusual placeof abode with some person of suitable age and discretion then RESIDING therein; or......

DH's Uncle does NOT reside with us so therefore service was improper and not effected.


Thanks!!

[joni]

What's your intention?  To avoid getting service until you get the records produced?  Are you trying to buy time?

Something similar happened to my DH twice.  Once they threw the motion at his receptionist and another time, they threw it in our door when we were in Vegas.

We showed for the first motion.  What's the difference?  We would be served eventually, can't hide forever, and have to clear it up anyway.

For the 2nd motion, we got a continuance because we came back from vacation the day before court.  Our attorney went with proof we were on vacation and needed time to prepare, so we got a two week continuance.

Although maybe not proper, I think some judges would frown upon your avoidance of the serving just because the uncle got it and you didn't.  In theory, you weren't served but a judge knows the uncle would give it to you anyway and that may tarnish your integrity with your judge and the judge may already become annoyed with you because you're not producing evidence and not working with the other parties attorney.

[jilly]

Intention was to get it continued to a new date.  DH works in maintenance at a manufacturing facility. They are coming to the end of a 2 week shut down. He has until Wednesday to get one of the machines up and running. If he can do that (which I think he will) he will get Thursday, December 23rd off (in addition to the 24th - 26th he'll have for Christmas). He has his daughter from 7:30 p.m. 12/22 until 6:00 p.m.  12/24.  When it has been PBFH's year for Christmas (as it is this year) this has NEVER happened.  He either had to see her the weekend before or the weekend after Christmas.  The way the parenting time fell on the calendar it is technically DH's weekend to have SD and PFBH  is trying to make it sound like she's doing it since he won't have her Christmas weekend since it's her year for Christmas.  Of course, the only reason this is happening is because she's getting a "babysitter" for SD while she's at work.
Also, even though he knew about the date and time of the hearing, he wasn't actually served until Thursday, December 16...for a hearing on Monday, December 20.  PLUS, the notice was dated October 20th!  The Clerk had told me that he was originally supposed to be in court in October but since they didn't get him served in time they had rescheduled it.  He wasn't going to do anything about it if/until he was served.  I called him on Friday to remind him to tell his boss about the hearing.  He had forgotten about it.  To make a long story short (LOL), he ended up calling the Clerk and blessing them out for not serving him in time so he could get time off from work AND for serving the babysitter. When the Clerk looked at the calendar he wasn't even on there! So...got all excited over nothing! LOL

[joni]

Isn't that always the way?  Much ado about nothing?

From our experience, next time you know to go to court and ask for an extension because of improper serving.  But beware, on both of our misserves, the PI who was used lied and put down that they did serve my husband.  Even included a description of my husband (from what his Ex had given them for serving in the first place).

At least sheriff's are more credible in that regard.  IN order for us to get out of the one bad service, my DH had to produce his plane tickets to prove he was out of town because the PI was in the court, lying to the judge, about giving it to my DH.