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May 18, 2006

You're defending a case in which your client was never actually served. You raised insufficiency of service of process as an affirmative defense in your answer. If the plaintiff never gets proper service, can you wait until a few days before trial and then move to dismiss the complaint?

That's what the defense attorney figured he could do in Gliozzo v. Univ. Urologists of Cleveland, Inc., and the trial court agreed.  The court of appeals reversed the dismissal, though, finding that "by participating in the litigation of this case almost to trial, appellees have submitted themselves to the jurisdiction of the trial court and waived their right to proper service." The court noted that

"the record. . . shows appellees contacted Gliozzo's counsel and requested a leave to plead, filed an answer, attended a case management conference, conducted discovery, exchanged expert reports, attended pretrials, filed a dispositive motion and filed motions in limine. A review of the docket demonstrates that appellees vigorously defended this case on the merits, up until the eve of trial."

In writing for the majority, Judge Calabrese distinguished the court's prior decision in a similar case, Holloway v. Gen. Hydraulic & Mach., Inc., where the court had affirmed a dismissal for lack of service. The cases are distinguishable; in Holloway, the motion was filed well in advance of trial (no trial date is even mentioned in the opinion), and it does not appear that the parties engaged in the extensive pretrial maneuvering found in Gliozzo. On the other hand, Holloway cited a Supreme Court case which approved the defendant's waiting until the "eve of trial" to move to dismiss for service defects, and it approvingly noted the tactical advise of Professor J. Patrick Browne:

"All the clever defense attorney has to do is properly assert the jurisdictional defenses in the answer. Thereafter, she can fully participate in the preparation of the case for trial without waiving those defenses, and after both the statute of limitations and the Rule 3(A) year for obtaining service have run, she can spring the failure of commencement trap by moving to strike the complaint from the files for failure of commencement." Ohio Civil Practice Journal, January/February 1992, Vol. 3, Issue 1, at 4.

Judge Cooney's dissent in Gliozzo is rather compelling: there's not much in the case law to justify the contention that a defendant ever waives his insufficiency of service defenses as long as he raises them in an answer or motion. Still, I imagine Gliozzo will give all those clever defense attorneys out there pause before taking the advice of Professor Browne.

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