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XI MOTIONS
C. DISMISS
Form No. 1--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
Form
No. 1--Motion
for Execution of Judgment
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