A motion to dismiss is a motion that either party can file to request the judge dismisses the case. The defendant’s legal team is more likely to file a motion to dismiss at the start of a lawsuit in order to save time, money, and effort defending a “bogus” case.
Basically, a motion to dismiss asserts that the complaint has no legal standing. It could assert that the statute of limitations passed, that the legal elements cannot be satisfied, or that the law does not apply in some other way. The motion to dismiss must include evidence and be based on a fact that is not in dispute in the lawsuit.
Reasons For Filing a Motion to Dismiss
You can file a motion to dismiss alleging the following things:
- Insufficient service of process – You can file a motion to dismiss if you were not properly served with the complaint or summons or if there is a technical defect in the summons. Talk to your lawyer about the way you were served and if there was anything odd about it. Your lawyer can use that information to decide if it is worth filing a motion to dismiss.
- Failure to state a claim upon which relief may be granted – If the claim is based upon perceived negligence but is not based upon a legal duty the defendant owed the plaintiff, then there, the defendant can file a motion to dismiss. This is because the lawsuit can only seek damages for a defendant that failed in their duty to the plaintiff.
- Failure to join a necessary party – If the plaintiff sues only some of the people involved or does not sue the right people, then the defendant can file a motion to dismiss. A lawsuit should include all of the parties involved. This motion to dismiss rarely results in a dismissal; the courts generally just tell the plaintiff to name all responsible parties in the lawsuit.
- Lack of subject matter jurisdiction – This simply means that the court does not have jurisdiction over the case. If it is a particular topic, the case may need to be heard by a specialist court like family court or probate court.
- Lack of personal jurisdiction – This type of motion to dismiss alleges that the court does not have personal jurisdiction over you. In order to be sued, you need to have some sort of connection to the legal jurisdiction to be sued in that state. Therefore, if you are sued for something that happened while you were on holiday in California, but you live in New York, the lawsuit must be filed in New York, not California.
- Improper venue – You can also file a motion to dismiss if the case is filed in the right state jurisdiction but not the proper local jurisdiction. Often, the case will be moved to the correct venue rather than being dismissed completely.
Your lawyer will be able to help you file a motion to dismiss or advise you of other, rarer reasons for filing a motion to dismiss.
The Process to File a Motion to Dismiss
Each state and legal jurisdiction will have a different process for filing a motion to dismiss. In most cases, the defendant will file a motion to dismiss prior to answering the complaint, especially if it is based on one of the above reasons. The party will file their motion to dismiss with the court and serve a copy to the other party. They have a chance to respond, and the court will review both and give their decision in a hearing.
The motion to dismiss must include specific reasons for filing the motion.