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Motion to dismiss sample2/18/2024 ![]() Again, this motion does not challenge the facts. You have more information at your disposal which, if you’re innocent, means more opportunity to find flaws in the case. However, the Judgement on the Pleadings is a little easier to achieve than the Motion to Dismiss, because it allows you to use the information presented in all of the pleadings, not just the complaint. Rule 12 provides this option, apparently to offer an alternative on missed deadlines for a Motion to Dismiss (which is why I’m confused by the case law on this point). Motion for a Judgment on the Pleadings: This is similar to the Motion to Dismiss, in that it relies on the case failing as presented. ![]() In any case, why would you file a Motion to Dismiss if there was a better option? When someone first files a lawsuit, they are entitled to their ‘day in court.’ But as the case progresses, better opportunities should arise (provided you are not actually as guilty as the plaintiff would have the court believe), as follows: On the contrary, the law seems to encourage these motions early on, sometimes even with deadlines entered into the Rule, to ‘provide fair notice’ to the plaintiff (see Rule 12). Technically, there is case law (judgments) to support filing a Motion to Dismiss right up to trial, but I haven’t found any actual law to support those rulings. This is because it does not permit any scrutiny of the facts. The Motion to Dismiss is the earliest (and hardest) method for having a case thrown out. Is there a time limit on a Motion to Dismiss? Notice that none of these are about the truthfulness of the allegations themselves. The allegations do not entitle the Plaintiff to the relief requested The requested ‘relief’ is not supported by law (there is no legal relief available under the stated circumstances so, even if the allegations are true, there is not case) The case was not filed in time (statute of limitations and/or missed deadlines) The case is filed in the wrong court (jurisdiction and/or venue) Here are some examples of why this might be: The theory is that everyone is entitled to their ‘day in court,’ unless the lawsuit in question can not possibly succeed. ![]() The question is whether or not the case, if true, is supported by law.īriefly, a ‘Motion to Dismiss’ addresses a case that is, simply put, not worthy of the court’s time. ![]() When reviewing a Motion to Dismiss, the court ‘ accepts all allegations as true‘ and examines the motion ‘ in the light most favorable to the plaintiff.’ Evidence and facts don’t come into it. This is why a Motion to Dismiss is difficult (but certainly not impossible) to achieve. It doesn’t work, even when examined from the plaintiff’s point of view. The case is basically thrown out without the plaintiff getting their ‘due process’ because it cannot possibly succeed. The Motion to Dismiss is only granted when a claim, as presented, is not supported by law. It can be filed with, or even instead of (in some cases), an Answer (although, if the Motion to Dismiss is not granted, you will have to immediately file your Answer to the complaint/counterclaim. It is generally the first attempt to have a case thrown out. – This article is still under construction – Introduction What is a Motion to Dismiss?Ī Motion to Dismiss is a pleading asking the court to dismiss a complaint or counterclaim against you.
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