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In this lesson, you will learn about the Motion to Dismiss, how to oppose it or address it, and the timeline in which to file it if you’re the serving party.
DISMISSAL – Asks the court to end the case when the allegations in the complaint are insufficient to support the claim, the service of summons was improper, or some other procedural defect exists.
Example – LeeAnn’s Ex
- LeeAnn was served a complaint from a former boyfriend.
- The boyfriend claimed that LeeAnn’s son, Elijah, was his.
- LeeAnn noticed that the complaint was filed in circuit court.
- She wondered why the ex hadn’t filed in family court.
What can LeeAnn do?:
- Do nothing.
- Move for an extension of time.
- File an answer and affirmative defenses.
- File a motion to dismiss.
The moving party can:
- Find defects in complaining or summons.
- Identify grounds for dismissal.
- Find appellate cases and statutes supporting your position.
- Write and file the motion.
- Schedule a hearing.
The opposing party can:
- Review appellate cases and statutes cited by the defendant.
- Review your complaint.
- Find appellate cases and statutes supporting your position.
Transcript
A motion to dismiss asked the court to end a case when the allegations in the complaint are insufficient to support the claim or the service of summons was improper, or some other procedural defect exist.
Here on a motion to dismiss, the defendant is always the moving party.
A motion to dismiss relies on procedural laws. And those laws set out the rules for enforcing other laws, or for bringing a lawsuit.
Now to defeat a motion to dismiss, a plaintiff must show that his or her complaint was properly written and properly served.
A motion to dismiss results in one of three outcomes.
First, there can be a denial of the motion. And that generally requires the defendant to go ahead and answer the complaint.
The second possible outcome is dismissal without prejudice.
Dismissile without prejudice allows the plaintiff to amend or refile the complaint.
The third potential outcome is a dismissal with prejudice.
A dismissal with prejudice ends the case.
And so even if the judge rules in the defendant\’s favor and grants the dismissal, the plaintiff has another bite of the apple if that dismissal is without prejudice.
So when does this happen?
A motion to dismiss is often the defendant\’s first response to being sued.
The defendant says here that something is deficient about the complaint or the summons.
Let\’s take an example.
Leanne was served a complaint from a former boyfriend who claimed that Leanne\’s son, Elijah, was his son.
He wanted parental rights and visitation.
Well, Leanne was furious. The boyfriend was an idiot. He was not Elijah\’s father.
Though she was agitated, Leanne read everything he sent her very carefully.
One thing she noticed was that the complaint had been filed in general circuit court in their county.
Why hadn\’t it been filed in family Courtroom5 such cases were usually heard?
She wondered if that was something she could use against the boyfriend if he insisted on this ridiculous path.
Well, what can Leanne do?
Leanne has several choices at this early stage of the case.
She\’s tempted to do nothing since she believes her ex boyfriend is in the wrong court, and he\’s an idiot. She figured he would find out sooner or later that his lawsuit was going nowhere.
But this is dangerous for Leanne.
Courtroom5 make mistakes all the time. Her ex boyfriend could actually get a judgment in the wrong court, and then she would have to fight it or appeal it.
Her remaining choices include asking the court for more time or filing an answer and moving to dismiss the complaint, are much better.
But those choices are out of order.
The first thing Leanne should do is move for an extension of time.
This is something we recommend to, all defendants as soon as you\’re served. Move for an extension of time.
After that, Leanne should move to dismiss her boyfriend\’s complaint. Well, on what grounds?
The most obvious is that the case appears to be in the wrong court. That means the issue is about venue or about jurisdiction.
Let\’s discuss those terms.
Jurassic gives the court the authority to decide a case.
A court may have jurisdiction over the people in the case, over property, or over the subject of the case.
So for example, a court in your state will have personal jurisdiction over you as a resident of the state.
A court in the county where a house is located would have authority to foreclose or the jurisdiction to foreclose in a foreclosure case regarding that property.
If you need to file bankruptcy, often only a federal bankruptcy court would have jurisdiction over that subject matter.
By contrast, venue is the actual location where the case is to be tried.
Then you can be challenged or changed based on things like the convenience of witnesses or convenience of the defendant.
Well, Leah\’s best choice here is to move for dismissal for lack of subject matter jurisdiction.
She will argue that the case should have been brought in family court, not general circuit court.
Her court can then dismiss the case or transfer it to the proper court.
Let\’s step back a moment and talk about how you get a dismissal and how you would oppose one.
If you are the moving party on a motion to dismiss, that means you\’re the defendant.
Well, a defendant can move to dismiss based on any number of grounds, including lack of subject matter or personal jurisdiction, improper venue, insufficient process or service of process, failure to state a claim, failure to join some indispensable party.
Lack of capacity to sue, for instance, if the plaintiff is a minor. And on and on, you\’ll find many grounds for dismissal in your state\’s case law.
Now to get a dismissal, you want to review the complaint you\’ve been served and the summons to find any defects.
Based on what you found, identify specific grounds for dismissal.
Again, common ones are lack of jurisdiction, though it\’s state of claim. There are many others.
Research and review appellate cases and statutes that support your position.
You\’ll write and follow your motion, and then schedule a hearing on your motion.
Now if you are the non moving party, that means you\’re the plaintiff protecting your claim, You want to prove the opposite of what the defendant is trying to prove. You\’ll show that your complaint is rock solid and was given to the defendant in a proper way.
So the first step, once you\’ve received the motion to dismiss, is to identify the defendant\’s grounds for dismissal.
Why do they believe your complaint should be dismissed?
Review your complaint based on the defendant\’s grounds.
And decide for yourself, are those grounds correct?
You\’ll review any cases and statutes, cited by the defendant.
Here\’s the important thing. If the defendant did indeed find something wrong with your complaint or the summons, be prepared to amend and resubmit your complaint.
Before it is heard by the court.
Understand that a plaintiff may amend their own complaint to fix any defects So long as no defendant has filed a proper answer to the complaint.
So as long as there\’s no answer in the record, you may simply amend your complaint.
We recommend you do that before the court has an opportunity to dismiss it.
But if you don\’t find anything wrong with your complaint, if you disagree with the defendant.
Do your legal research and find appellate cases that support your position.
And follow your written response.
Back to our example, Leanne\’s goal is to move to dismiss her ex boyfriend\’s petition.
Now this motion is filed earlier in a in a case.
So Leanne has very little his restored in courtroom five that she can draw on.
But she begins by taking the first course civil litigation one zero one.
She also takes the second course, the introductory legal skills course.
Now she learns some more, but still is not ready to move forward, with using the tools.
Leanne has the day off, and so she decides to take two more advanced courses.
At courtroom five, one on civil procedure, and the other on legal research.
After taking those courses, Lianne feels ready to prepare her motion to dismiss.
She starts with the task tool to get reminders for the due date.
She next clicks the new law button and goes to the search rules tab. Leanne finds her jurisdiction on the rules and follows the instructions to find a specific rule related to a motion to dismiss.
Now based on what Leanne has learned from the courses, She goes to the search cases tab to conduct some legal research using terms she\’s found in the rules of civil procedure.
Well, very soon, Leanne has appellate cases that she needs to support her motion to dismiss.
She uses the store results tab on the legal research tool to record all of her cases.
Now it\’s time for Leanne to use the documents tool.
She selects the motion to dismiss template and goes to work.
Well, soon she has a motion that incorporates all of her appellate cases.
Nian Prince a PDF version, signs it and files it.
Nian then goes to her task calendar, and finds that her next task is to schedule a hearing.
Leanne\’s not sure how to go about scheduling a hearing, So she visits the community, to seek help in setting a hearing.
Now before she joins a conversation, she sees that another member has a question she can answer.
Leanna had a similar experience as that other member. And so she quickly answers the question and moves on to post a question of her own.
Leon soon learns that she should give her ex boyfriend three hearing dates to choose from.
And when he picks one, she should draft a notice of hearing, file, and serve it based on that date.
Well, Leanne goes through the process of doing just that, including sharing with her opponent, three dates to choose from.
When her ex boyfriend\’s attorney responds with the preferred date, Leanne uses the documents tool and chooses the notice of hearing template.
She prints a PDF of the notice of hearing, signs and files it.
Leanne attends the hearing and is granted her motion to dismiss without prejudice.
The court rules that her ex must file his complaint in the proper court.
Leanne gives the judge her proposed order, dismissing her ex boyfriend\’s complaint. And the judge signs it on the spot, and the clerk enters it and directed.
Now Leanne can await, service of a new filing in the proper court.