McMahan v. Grasshopper Trans. Inc., No. 1 CA-SA 25-0137 (App. Div. I, August 26, 2025) (J. Jacobs) https://coa1.azcourts.gov/Portals/0/OpinionFiles/Div1/2025/No.%201%20CA-SA%2025-0137%20McMahan%20v.%20Grasshopper.pdf

FAILURE TO RAISE THE DEFENSE OF INSUFFICIENCY OF SERVICE OF PROCESS IN A MOTION TO DISMISS OR ANSWER TO THE COMPLAINT CONSTITUTES A WAIVER OF THE DEFENSE

 Plaintiff was injured when defendant Grasshopper Transportation Inc.'s [Grasshopper] tractor trailer crashed into a roadside barrier throwing plaintiff into the roadway.

Grasshopper's statutory agent was out of town so when plaintiff sued his process server left the complaint and certificate of compulsory arbitration with the agent's assistant.  Grasshopper did not respond timely to the complaint and plaintiff moved for entry of a default judgment. Grasshopper then answered the complaint wherein eight defenses were raised. Insufficiency of service of process was not one of them. Twenty other defenses were set forth in a paragraph which stated Grasshopper did “not presently have sufficient facts in support of those defenses but that it hoped to support them through discovery.” Insufficiency of service of process was listed in this paragraph.

Thereafter, Grasshopper moved to set aside the entry default, alleging it had a meritorious defense, had filed an answer, and its failure to timely answer was the result of excusable neglect. Grasshopper did not assert insufficiency of service of process as a grounds for setting aside the default.  Grasshopper's motion was denied, whereupon Grasshopper filed a Rule 60 motion seeking relief from the judgment. In both the motion to set aside and motion for relief from the judgment Grasshopper alleged it “was served” with the complaint. After the Rule 60 motion was denied, Grasshopper filed a motion for reconsideration of this denial and for the first time alleged insufficiency of service of process based upon the fact the service was made on an assistant and not the actual statutory agent. The trial court granted the motion for Rule 60 relief, plaintiff brought this special action and the Arizona Court of Appeals accepted jurisdiction and granted plaintiff relief.

Rule 12(b) of the Arizona Rules of Civil Procedure exists to allow for early resolution of the insufficiency of service of process defense and a motion under this rule “must be made” before filing  a responsive pleading. Failure to raise the defense in a Rule 12(b) motion and in the answer constitutes a waiver of the defense.

Grasshopper's answer pled that on June 11, 2024, it lacked facts supporting

a defense of insufficiency of process, but that it might wish to develop the

defense of insufficiency of service of process through discovery. Yet on that

date, Grasshopper knew service was made on [the assistant] and not [the

statutory agent]—the motion for default attached the proof of that. Thus,

pleading that those facts didn't allow Grasshopper to make out the defense

was the same as saying those facts didn't show insufficiency of process.

As such, Grasshopper chose not to assert the defense in its June 11, 2024

answer, despite knowing all of the facts needed to do so.

 Grasshopper further waived the defense by failing to raise it in five separate court filings, including its answer, and its repeated acknowledgment it has been served confirmed it had timely notice of the lawsuit.