De Jesus v. LT & LT LLC
- John Cronan
- 1:24-cv-09901
- U.S. District Court · Southern District of New York
- 2
De Jesus v. LT & LT LLC: Judge Cronan denied Lan Cao’s motion because she waived insufficient service by answering first.
Defendant Lan Cao’s motion was denied; the order concerned the plaintiffs’ amended complaint and the defense of insufficient service of process.
What happened
In De Jesus v. LT & LT LLC, defendant Lan Cao asked the court to dismiss the amended complaint, claiming that she had not been properly served. She filed that motion after filing her answer.
The court noted that Cao had not first filed the required letter requesting permission to make a motion. More importantly, the court ruled that she had waived the service objection because she did not raise it before answering and did not include it in her answer.
Judge John P. Cronan denied Cao’s motion and directed the Clerk of Court to close Docket Number 28.
The detailed version
- De Jesus v. LT & LT LLC · No. 1:24-cv-09901
- John Cronan
- May 6, 2025
Background
Plaintiffs Isidro De Jesus and others sued LT & LT LLC and others. Defendant Lan Cao filed an answer to the amended complaint on May 2, 2025. She later moved to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(5), arguing that service of process was insufficient.
Reasons for the Ruling
The court gave two reasons for denying Cao’s motion. First, Cao filed the motion without first submitting the pre-motion letter required by Judge Cronan’s Individual Civil Rule 6.A.
Second, and more importantly, the court held that Cao waived the defense of insufficient service of process. Rule 12(b) requires a party to raise certain defenses, including insufficient service, before filing a responsive pleading when one is allowed. Rule 12(h) provides that the defense is waived if it is not timely raised in a Rule 12 motion or included in the responsive pleading. Cao filed her motion only after submitting her answer, and the answer did not include an insufficient-service defense.
Disposition
Judge John P. Cronan denied Cao’s motion to dismiss based on insufficient service of process. The court directed the Clerk of Court to close Docket Number 28.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.