CIVIL LAW - MOTION TO DISMISS - A Motion to Dismiss is a formal request by a party to the court to dismiss a case. This pretrial motion is often filed before a civil case begins. Often, the defendant (or Cross-Defendant) files this type of motion shortly after receiving the complaint (or Cross-Complaint) and before engaging in further legal proceedings. This strategy usually challenges the case before discovery and other pretrial activities. In some instances, filing the motion later in the proceeding could result in a waiver of some defenses. A party files a Motion to Dismiss if the party believes that the complaint (or Cross-Complaint) is invalid, the basis of which can be on various legal grounds. (All Federal Courts & States that allow Motions to Dismiss / Also see "Demurrer").
Most Common Grounds for Filing a Motion to Dismiss (but is not limited to):
- Voluntary Dismissal: This allows the plaintiff to file a Voluntary Dismissal, with or without a court order. The plaintiff can only file Voluntary Dismissal before the opposing party serves an answer or files a Motion for Summary Judgment.
- Involuntary Dismissal: This allows the defendant to dismiss the case if the plaintiff fails to prosecute the case or comply with the FRCP or a court order.
- Lack of Subject Matter Jurisdiction: If the court does not have the authority to hear the specific type of case, the party may file a Motion to Dismiss based on a lack of subject matter jurisdiction.
- Lack of Personal Jurisdiction: Similarly, a court must have personal jurisdiction over a defendant to decide involving the defendant. A court has personal jurisdiction over a party when they are a resident or have "sufficient minimum contacts" with the jurisdiction where the lawsuit has been filed.
- Improper Venue: This ground challenges the geographical location of the trial. The party argues that the case was in the wrong court.
- Insufficient Service of Process: The defendant may claim that the plaintiff failed to serve the legal documents properly, a requirement for the court to exercise its jurisdiction over the defendant.
- Failure to State a Claim Upon which Relief Can be Granted: A plaintiff must comply with various requirements when filing a complaint, including a valid cause of action. The court may grant a Motion to Dismiss if the plaintiff's complaint fails to allege all the elements of a claim adequately. Or the court may grant it if the complaint fails to allege a measurable injury.
- Failure to Join a Party Under Rule 19: This ground asserts that a party failed to include a person who should have been a party to the case, and such a person could affect the case's outcome.
Does not include any State or Federal Court Fees or any Third-Party Costs such as Process Server or E-Filing Fees.
CIVIL LAW - MOTION TO DISMISS (in States that allow)
CIVIL LAW - MOTION TO DISMISS - A Motion to Dismiss is a formal request by a party to the court to dismiss a case. This pretrial motion is often filed before a civil case begins. Often, the defendant (or Cross-Defendant) files this type of motion shortly after receiving the complaint (or Cross-Complaint) and before engaging in further legal proceedings. This strategy usually challenges the case before discovery and other pretrial activities. In some instances, filing the motion later in the proceeding could result in a waiver of some defenses. A party files a Motion to Dismiss if the party believes that the complaint (or Cross-Complaint) is invalid, the basis of which can be on various legal grounds. (All Federal Courts & States that allow Motions to Dismiss / Also see "Demurrer").
Most Common Grounds for Filing a Motion to Dismiss (but is not limited to):
- Voluntary Dismissal: This allows the plaintiff to file a Voluntary Dismissal, with or without a court order. The plaintiff can only file Voluntary Dismissal before the opposing party serves an answer or files a Motion for Summary Judgment.
- Involuntary Dismissal: This allows the defendant to dismiss the case if the plaintiff fails to prosecute the case or comply with the FRCP or a court order.
- Lack of Subject Matter Jurisdiction: If the court does not have the authority to hear the specific type of case, the party may file a Motion to Dismiss based on a lack of subject matter jurisdiction.
- Lack of Personal Jurisdiction: Similarly, a court must have personal jurisdiction over a defendant to decide involving the defendant. A court has personal jurisdiction over a party when they are a resident or have "sufficient minimum contacts" with the jurisdiction where the lawsuit has been filed.
- Improper Venue: This ground challenges the geographical location of the trial. The party argues that the case was in the wrong court.
- Insufficient Service of Process: The defendant may claim that the plaintiff failed to serve the legal documents properly, a requirement for the court to exercise its jurisdiction over the defendant.
- Failure to State a Claim Upon which Relief Can be Granted: A plaintiff must comply with various requirements when filing a complaint, including a valid cause of action. The court may grant a Motion to Dismiss if the plaintiff's complaint fails to allege all the elements of a claim adequately. Or the court may grant it if the complaint fails to allege a measurable injury.
- Failure to Join a Party Under Rule 19: This ground asserts that a party failed to include a person who should have been a party to the case, and such a person could affect the case's outcome.
Does not include any State or Federal Court Fees or any Third-Party Costs such as Process Server or E-Filing Fees.