Motion to Dismiss

(Motion to Dismiss)
(CAPTION)
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.
DISCUSSION
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.
PRAYER
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__.
(COUNSEL)
(NOTICE OF HEARING)
(EXPLANATION)
COPY FURNISHED:
OPPOSING COUNSEL