Ten days after service of summons, a defendant files a motion to dismiss on improper service. The court denied the motion immediately. How should the judge rule?

• A. The judge gravely abused discretion and should grant the motion to dismiss.
• B. The motion to dismiss was proper; improper service is a ground for dismissal.
• C. The judge did not abuse discretion; such a motion is sometimes allowed to be denied outright.
• D. The judge should wait for a hearing before ruling on the motion.

Answer: (B)

Proper service of summons is what gives a court jurisdiction over a defendant. If service is improper, the court has no power to proceed against that defendant. A motion to dismiss on the ground of improper service is therefore appropriate. When service is defective, dismissal is the proper remedy, and the plaintiff can refile later after proper service if desired. Denying the motion immediately ignores the jurisdictional defect, so the judge should grant the motion to dismiss. The case would typically be dismissed without prejudice, allowing refiling with proper service if the plaintiff chooses.