How to Make a Motion to Dismiss
George Simons | July 21, 2022
You may have a debt, but you also have a defense.
Summary: Are you being sued by a bill collector for an old debt? Want to make a motion to dismiss the lawsuit? Find out how to make a defense and have your case thrown out.
If you are the subject of a legal proceeding, such as an eviction or debt collection lawsuit, you may be able to get the lawsuit thrown out of court by filing a “motion to dismiss.” You may be asking yourself, what exactly does that term mean? Well, a motion to dismiss is where one side of the lawsuit asks the judge to throw out or dismiss the case without reviewing all of the legal arguments and case facts. You can make a motion to dismiss at any time during the case. However, it's usually a pretrial motion that the defendant uses at the start of the case proceedings.
When you make a motion to dismiss, you're alleging that based on the allegations and facts that are in the complaint, that the claim does not have any validity. So, you are saying that the case shouldn't proceed. There can be many reasons that you would file a motion to dismiss. The most important thing to remember is that you should file the complaint before you answer the complaint. If you answer the complaint, you cannot file a motion to dismiss.
The motion to dismiss also may be called a ‘demurrer.' This is where you give a written objection to a claim in a civil case. It alleges that even if everything that the plaintiff alleges is true, there is no legal argument for the case to go further. You're making the argument that the plaintiff has not laid out a claim where relief can be provided, so the case should be dismissed.
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When a motion to dismiss can be filed
You can file a motion to dismiss at any time during the case. Usually, the defendant files a motion to dismiss early in the lawsuit before they file an answer. A motion to dismiss usually alleges that the claim shouldn't proceed because of a problem in the case that isn't related to the facts.
If you answer the complaint, you are waiving your right to file the motion to dismiss based on the complaint allegations. Note that you should check the rules for civil lawsuits in your state so you know the timeline for filing a motion to dismiss after the plaintiff serves you with a lawsuit.
In a motion to dismiss, you can ask the judge to throw out any or all of the claims in the lawsuit. The judge will review your claims and issue a ruling.
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Reasons to file a motion to dismiss
Filing this motion is usually based on procedural issues in the case, instead of the case merits. The most common reasons include:
- The statute of limitations expired
- The court doesn't have jurisdiction over the case or the material of the case
- The location where the lawsuit was filed is wrong
- The lawsuit wasn't legally served to you.
- The plaintiff didn't name an essential party in the lawsuit or named the wrong person or entity.
One of the most common cases in which a motion to dismiss is filed is in a case where you owe back rent. The landlord will file a lawsuit and claim that you owe a certain amount of money. There are some reasons why the case may not be valid. For example, you may have paid the landlord but he doesn't have a record of all of your payments. You could provide proof of all of your payments with bank records and canceled checks. You would file a motion to dismiss the case if you have all of this documentation, which you would file with the court.
You also may file this motion because the plaintiff didn't state a claim that can be offered relief. For instance, in a car accident where they claim you were negligent, the plaintiff must demonstrate all elements of negligence. If the complaint doesn't show that the plaintiff suffered damages, then you may file a motion to dismiss because the complaint didn't contain that essential element.
Many people think that only the defendant may file a motion to dismiss. But a plaintiff also can file the motion to dismiss the lawsuit before you file your answer. After you file your answer, both sides can agree and ask the judge to dismiss the case. Also, the court can make its own decision to dismiss the case, but the term in this situation is sua sponte, not motion to dismiss.
Sometimes, the plaintiff may dismiss the case by offering a notice of dismissal to the judge or court. But this must be done before you answer the complaint and/or alleged a counterclaim.
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Steps on how to file a motion to dismiss
The key thing to remember when you file a motion to dismiss is there is a deadline to meet. You can find this and other essential rules in the civil procedure laws in your state or county.
Generally, this is how you file a motion to dismiss:
- The motion needs to be filed before you answer the complaint.
- You need to file it with the proper court and it must be served to the other person.
- The other side has the chance to respond to the motion to dismiss. The deadline for this response is in the civil procedure rules for your jurisdiction.
- The judge will go over the motion and the other side's response. He or she will review the case facts and allegations in a way that favors the plaintiff.
- The judge will issue a ruling if the motion is granted. The case can be dismissed with or without prejudice. The plaintiff can file a complaint again if the lawsuit was dismissed without prejudice.
If there are grounds to get a lawsuit filed against you tossed out of court, you should do so. A common procedural mechanism to get a lawsuit tossed out of court is filing a motion to dismiss.
You need to adhere to the procedural requirements set forth by the court to properly file this type of motion. Once the motion is filled with the court, you need to prepare yourself to make an argument in court during a hearing.
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How it works: SoloSuit is a step-by-step web-app that asks you all the necessary questions to complete your answer. Upon completion, you can either print the completed forms and mail in the hard copies to the courts or you can pay SoloSuit to file it for you and to have an attorney review the document.
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