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In this lesson, you will learn what a motion to dismiss is, what a demurrer defense solves, and how to prepare for each. You will also learn the varying options for responses to a complaint filed against you, and reasons to list affirmative defenses in your answer.
Responses to the complaint
- The motion to dismiss and demurrer
- Dismissal/demurrer checklist
- Arguing the motion to dismiss
- The answer and general denial
- Preparing the answer and general denial
- Affirmative defenses
- Preparing affirmative defenses
- The counterclaim
- Writing the counterclaim
- Other filings
Transcript
In law, a motion is a request that the court do something. It\’s also referred to as moving the Courtroom5 motion to dismiss is a request to a court to throw out a case. A plaintiff can voluntarily dismiss if no counter claim has been filed. In some states, a demurrer can be filed. It asserts that even if the allegations are true, they don\’t rise to a cause of action.
If you seek a dismissal, make a checklist of all the things that could go wrong with a complaint. A court can dismiss for improper jurisdiction or venue failure to state a claim, a missing prayer for relief, insufficient service of process, and so on. Oftentimes, a dismissal is without prejudice but the plaintiff may not come back or might be more willing to settle if the case is dismissed.
A motion to dismiss should argue that the complaint is deficient in some way. Take something you think is wrong with the claim. Explain why it\’s wrong and move the court to dismiss. For instance, if you think the plaintiff failed to state a cause of action, look at elements or ingredients of the claim, discuss those elements in your motion and pair them with the facts of the claim. If you find any element missing, that is grounds for dismissal.
Some jurisdictions allow you to respond to the complaint with a general denial. Others require a formal answer. If you don\’t respond to the complaint, the plaintiff can get a default judgment against you. A general denial does not address specific allegations in the complaint, but denies all allegations.
A sample general denial might be, but defendant denies each and every allegation of the complaint. An answer must respond to every factual allegation in the complaint. Answers and general denials are followed up with affirmative defenses.
Respond to the allegations in the complaint and file out with your affirmative defenses. In many jurisdictions, if you fail to file affirmative defenses with the answer, you may lose the opportunity to file them later. Include any exhibits such as a verification with your filing.
Affirmative defenses are facts other than those alleged by the plaintiff, which if proven defeats or mitigates the legal consequences of the defendant otherwise unlawful conduct. Sample affirmative defenses include failure to state a cause of action, fraud, and reese Judithada, previous settlement of the case. There are numerous others. If you don\’t raise affirmative defenses in the case, you may lose the chance to argue them later.
List every defense or legal reason why, even if the facts are true, the defendant should not have to pay damages.
Look at statutes and cases to determine elements of an affirmative defense. If any facts match up with elements, list the defense, even if the connection is loose, number each affirmative defense and file them with the answer.
A counter claim is a complaint filed by the defendant alleging that plaintiff has injured the defendant and should pay damages. The counter claim arises out of the same incident as the complaint.
Depending on the jurisdiction, it may be by itself or along with the answer and affirmative defenses. Each separate document you file needs its own title, signature, and certificate of service.
A counter claim must arise out of the same events as the plaintiff\’s lawsuit. Each jurisdiction has its own rules for when to file counter claims. Make sure you know those rules. Counter claims must be as complete as a claim, alleging harm, stating a cause of action, and so on.
Other options at the answer stage include filing a motion to quash, which asks the court to render a decision void because of a gross error during the proceedings. A motion to strike is a request that the court eliminated a specific part of a pleading, like an affidavit or verification.
A motion to change venue is a request case be transferred from one location to another.
A request for extension of time asks for more time to answer a complaint. Finally, A request for leave to amend is a request to be allowed to change or correct the pleading.