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Form No. 1--Motion to Dismiss
- Category: Philippines Legal Form
- Hits: 33845
(Motion to Dismiss)
MOTION TO DISMISS
COMES NOW the Respondent, _____________ Inc., through the undersigned counsel, appearing especially and solely for this purpose, and to this Honorable Court, most respectfully moves for the dismissal of the Complaint on the following ground that THE HONORABLE COURT HAS NOT ACQUIRED JURISDICTION OVER THE PERSON OF THE DEFENDING PARTY.
A cursory reading of the Summons and Return of Service would readily show that the copies of the Summons dated 08 May 2001 and the Complaint and its corresponding annexes were allegedly delivered and tendered upon the Movant _____________ INC. through a certain Maria Clara alleged to be the authorized personnel of Movant _____________ INC., Bacolod City on 29 August 2001. Copies of the said Summons and Return of Service that form part of the records on the case are hereto pleaded as integral part of this Motion;
Said service of Summons, however, constitutes an improper service of summons amounting to lack of jurisdiction over the person of the herein Movant Corporation _____________ INC. since the summons was improperly served upon a person who is not one of those persons named or enumerated in Section 11, Rule 14 of the 1997 Rules of Civil Procedure upon whom service of summons shall be made;
The material provision on the service of summons provided for in Section 11 of Rule 14 of the 1997 Rules of Civil Procedure reads as follows:
"Section 11. Service upon domestic private juridical entity.- When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel" (underscoring ours)
It bears no further emphasis that the service of the summons was done on a person who is not included in the exclusive enumeration provided for under the said Section, as service was done only on an alleged authorized personnel of the Movant Corporation;
This new revision of the Rules of Court for the service of summon is a clear departure from the old rule as stated in Section 13, Rule 14 of the Rules of Court which provided that:
"SECTION 13.Service upon private domestic corporation or partnership. - If the defendant is a corporation organized under the laws of the Philippines or a partnership duly registered, service may be made on the president, manager, secretary, cashier, agent, or any of its directors."
It must be equally noted that the changes in the new rules are substantial and not just general semantics as the new rules restricted the service of summons on persons clearly enumerated therein. In effect, the new provision makes it more specific and clear such that in the case of the word "manager", it was made more precise and changed to "general manager", "secretary" to "corporate secretary", and excluding therefrom agent and director;
The designation of persons or officers who are authorized to accept summons for a domestic corporation or partnership is under the new rules, limited and more clearly specified, departure from which is fatal to the validity of the service of the summons and resulting in the failure of the court to acquire jurisdiction over the person of the respondent corporation.
WHEREFORE, it is respectfully prayed that the Complaint with respect to the Movant Corporation be dismissed for lack of jurisdiction over the person of the defendant.
Other reliefs just and equitable are likewise prayed for.
_____________, Philippines, __Date__.
(NOTICE OF HEARING)