In 2023, Brandon McMahan was injured at a construction site when a tractor-trailer, allegedly operated by Grasshopper Transportation Inc., crashed into roadside barricades. McMahan filed suit against Grasshopper and served the complaint on an employee of the company’s statutory agent. Grasshopper did not timely respond to the complaint, and McMahan moved for entry of default and default judgment.
Grasshopper eventually filed an answer, raising several defenses but not insufficient service of process. Grasshopper also moved to set aside the default, acknowledging service but not arguing insufficient service as a defense. After the trial court denied the motion, Grasshopper moved for Rule 60 relief, again acknowledging service and not raising insufficient service. The motion was denied.
Still later, Grasshopper moved for reconsideration, arguing for the first time that service was insufficient because the complaint had been served on the wrong person. The trial court agreed and vacated the entry of default.
On appeal, the Court of Appeals found that Grasshopper waived the defense of insufficient service by failing to raise it in a timely manner and by its litigation conduct. Grasshopper did not file a Rule 12(b)(5) motion before answering and did not assert the defense in its answer, thus evidencing waiver. The court also emphasized that Grasshopper’s conduct, e.g., acknowledging service in multiple filings and seeking affirmative relief, constituted waiver.
This decision underscores the important of full and complete transparency with legal counsel during all aspects of litigation. While insufficient service can be a valid defense, a defendant must be sure to raise it in a timely fashion.
