How to File a Motion for Dismissal

If someone files a lawsuit against you, you have a limited period of time to respond – usually within a couple of weeks.^[1] If you think they filed in the wrong court, or don't have any legitimate reason to sue you, consider filing a motion to dismiss. Motions for dismissal sometimes can become like mini-trials in and of themselves, but getting the case dismissed still will be quicker and less expensive than having a full trial on the matter.

Steps

Researching Your Motion

1. Consider hiring an attorney. Before you respond to a lawsuit against you, seeking professional advice ensures you're interpreting the law and following procedure correctly. Although hiring an attorney can be expensive, you may lose a lot more if you try to file a motion by yourself and do it wrong.
   • If money is an issue, look for legal aid services in your area. Most state and local bar associations have networks that provide free or low-cost legal assistance. You might also be able to find a law school clinic that would be willing to work on your case or provide some advice.
   • Some private attorneys also provide unbundled services. This means that instead of hiring the attorney to represent you throughout the entire case, including drafting all court papers and corresponding with the other side, you hire her to do only specific, limited tasks such as drafting a single document.
   • There are other private attorneys who, for an even more reduced fee, are willing to look over documents you've already prepared and offer suggestions or corrections. They may also coach you through the process of filing your motion and explain the court's procedural rules.^[2]
2. Learn the rules of civil procedure that apply to your case. Generally you only have about 20 days^[3] to serve your response to a complaint filed against you, so you don't have time to learn all the rules of civil procedure. You do, however, need to understand the rule related to pleadings, answers, and defenses.
   • In most cases, you must file a motion to dismiss before you file an answer to the complaint. For this reason, the deadline you're given to file your answer is postponed. After the judge rules on your motion, you may have as little as ten days to file an answer if the case was not dismissed.^[4] In federal court, you have 14 days to file an answer after the judge rules on your motion.^[5]
3. Understand the reasons a complaint can be dismissed. Court rules only provide certain reasons that you, as a defendant, can request the court dismiss the case without having a trial on the merits.
   • Certain reasons for dismissal must be mentioned in the first document you file with the court or they are considered waived forever. In general, if you intend to argue that the court has no power over you, that the lawsuit was filed in the wrong court location, that the summons was incorrect, or that the summons and complaint weren't given to you properly, you must do so at the outset.^[6]
   • For example, since state civil suits generally must be filed in the county where you live, if the lawsuit was instead filed two counties over, you could file a motion to dismiss for lack of personal jurisdiction. Only the court in your county has power over you in a state court proceeding.
   • However, if you respond to the complaint without mentioning the fact that the lawsuit should have been filed in your county, not the other county, you have forever waived that defense. When you filed an answer, you agreed to allow that court to have jurisdiction over you.
   • A federal district court may be further away from you but still have personal jurisdiction, because federal districts are larger than state court districts. Check the federal court locator if you're unsure whether the court has jurisdiction.
   • Other reasons for dismissal can be brought up at any time during the proceedings, so if you don't mention them initially you can still bring them up later. These reasons include lack of subject matter jurisdiction, for which you would argue that the case doesn't fall within the types of cases the court has the power to decide.^[7]
   • For example, suppose someone sues you in state court for an alleged violation of maritime law. You could file a motion to dismiss for lack of subject-matter jurisdiction and your motion would no doubt be granted, because federal courts have exclusive jurisdiction over cases involving the law of the sea.^[8]
   • Although parties to a case can waive personal jurisdiction, they cannot waive subject-matter jurisdiction. If a court does not have the power to decide that type of case, you cannot make that happen.^[9]
   • You also can file a motion to dismiss at any time because the plaintiff failed to sue someone who is a necessary party, or because the plaintiff doesn't state a claim for which the law provides any remedy.^[10]
4. Analyze the complaint filed against you. Once you understand the reasons a complaint could be dismissed before trial, you must look at the complaint in your case and see if any of those reasons apply. If they do, or if you can make a reasonable argument that they do, then you may have grounds to file a motion to dismiss.
   • For example, suppose the plaintiff claims she injured herself when she slipped on a banana peel outside your store. She alleges negligence on your part. However, you know that you have no duty to protect people walking on the sidewalk in front of your store. You may be able to file a motion to dismiss for failure to state a claim. Since you never had any legal obligation to the plaintiff, you can't be held liable for her injuries.^[11]
   • Recognize that unless the judge dismisses the plaintiff's complaint for failure to state a claim, the grounds for dismissal usually are things that can be fixed. So, for example, if a judge dismisses the plaintiff's claim because he agrees with you that his court does not have personal jurisdiction over you, the plaintiff still has the ability to file a new lawsuit in a court that does have jurisdiction.^[12]
5. Compile affidavits or exhibits to support your motion. If you have documents or other evidence that will prove statements you need to make in your motion, get them all together before you start writing the motion itself.

Drafting Your Motion

1. See if your court has a pre-prepared or blank motion form. Many courts have pre-prepared forms for basic sorts of motions, or a blank form where you can put in your own motion language. Check at the clerk's office or on the website of your local or state court.^[13]
2. Create your caption. Use the caption on the complaint as a guide and copy the information at the top of the first page. This includes the name of the court, the names of the parties, and the case number.^[14]
   • Typically the caption is styled in a particular way, such as double-spaced with the case name on the left side of the page and the case number on the right. This style is dictated by the court's local rules, and your caption's style shouldn't deviate from that.
   • If you're having a hard time getting the formatting right, try downloading a sample motion or other pleading that was filed in the same court. Then you can simply copy the caption, paste it into your document, and change the information.^[15]
3. Title your motion. Your title should tell the court what the motion is about. Here, "Motion to Dismiss" would be sufficient.
   • You can add the grounds for your motion if you like. For example, if you were drafting a motion in the slip-and-fall case mentioned earlier, you could title it "Motion to Dismiss for Failure to State a Claim."
   • Typically the title is two lines below the caption, centered, and in bold-face type. Sometimes it is in all-caps, other times it's underlined. This is a matter of local style, so use the complaint or another motion filed in the same court as a guide.^[16]
4. Draft the body of your motion. The rest of your motion will introduce you to the court, explain what you want and why you believe you're entitled to that action. Typically, the body of your motion will be double-spaced, in 12-point font, and each paragraph will be indented.
   • To continue the slip-and-fall example, you want the court to dismiss the plaintiff's complaint against you because she failed to state a claim.
   • In the first sentence of your first paragraph, identify yourself as the defendant in the action and state what you want. In most motions, you start by saying "COMES NOW the Defendant," or "NOW COMES Defendant," state your name, and then list the rule that allows you to file this motion. Next, state the grounds for your motion.^[17]
   • If you do not have an attorney, state that you are "pro se" immediately after your name.^[18]
   • The second sentence of your first paragraph sets up the rest of the motion. If your motion is fairly brief (say, only another paragraph or so), you probably don't need to summarize here. However, if your motion will be several pages long, or if you've attached additional exhibits or affidavits to support your motion, you should outline your points in a single sentence so the judge has an idea of what you're going to say before you say it.
   • The rest of your motion outlines facts that, taken together, allow the court to grant your motion. Each paragraph of your motion should discuss a separate fact.
   • In the example, your motion for failure to state a claim rests on the fact that the plaintiff slipped and fell on a banana peel left on the sidewalk outside your store. There's a city ordinance that says the city controls the sidewalks. Therefore, you cannot be considered liable for the plaintiff's injuries due to negligence. When you draft your motion, set out the elements of negligence law. Then you want at least three separate paragraphs discussing the location of the plaintiff's accident, the location of your store, and the ordinance that establishes municipal control of the sidewalk.
   • Once you've established the law and the facts, you want to draft at least one paragraph that analyzes the facts of your case using the law.
   • To continue the slip-and-fall example, you would state that people are only liable for negligence if they breach some sort of duty they had to the injured person, and in this case you had no duty to the plaintiff to keep the sidewalk free of debris. Since you had no duty, it follows that you couldn't have breached a duty.
   • The last paragraph of your motion is a concluding paragraph that states what you want the court to do. You want the court to dismiss the complaint and not allow the plaintiff to fix anything and refile, so you're going to ask the court to dismiss the complaint with prejudice.
   • Often the conclusion appears on a separate page with the signature block, and has its own heading of similar style to that of the title. This is a matter of local rules, so check other motions filed in the same court to see how you should do this.^[19]
5. Create signature and notary blocks. Start a new line and type "Respectfully submitted," then type a blank line where you'll sign your motion.
   • Type your name immediately under the blank line. Below your name, include your address, phone number, and email address or any other way the court or the other party could get in touch with you regarding this matter.
   • In most courts, signatures are right-justified on the page, but this isn't always true. Check other motions or pleadings filed in the court and follow the local style.^[20]
   • If you've alleged any facts in your motion, you'll have to sign it in front of a notary public. You should be able to find a notary block of the appropriate size and format for your state and county online. If you do, you can simply copy it onto your document below your signature block.^[21]
6. Add a Certificate of Service. Most states have a specific format for the Certificate of Service, which you can find on your state court's website or at the clerk's office. Usually this will be a separate page.^[22]
   • You can also copy the Certificate of Service included on the complaint or with any of the other sample motions you've downloaded.
7. Add a Notice of Hearing. As with the Certificate of Service, most states have a specific format for the Notice of Hearing, and you can find that on the court's website with the other blank forms, or at the clerk's office.^[23]
8. Sign your motion. Go to a notary and sign your motion in her presence, so she can sign the notary block. You can find a notary in most banks or post offices as well as the clerk of court's office. In some cases the notary will charge you a fee for her services.
9. Make copies of your motion. Once you've signed your motion, make at least three copies of all the documents you've created. One copy will go to the plaintiff and the other copy you will keep. The original you will file with the court.^[24]

Filing Your Motion

1. Call the clerk's office to learn the filing procedure. You also may be able to find this information online at the clerk of court's website. Each court has its own scheduling system and method. Ask the clerk what you need to do to get on the court's calendar beforehand.
   • There also may be extra forms or cover sheets that should be included with any motions or other pleadings. If so, the clerk will make blank versions of these forms available to you.
   • You probably will be charged a filing fee, so find out what that will be and what forms of payment the office accepts so you won't be caught off guard.^[25]
   • If you are unable to pay the filing fee, you usually can apply to have the fee waived.^[26]
2. File your motion with the court clerk. Take your original motion and any attachments to the clerk's office and give them to the clerk before your deadline.
   • Bring your copies and the clerk will stamp those "filed" as well.^[27]
3. Schedule a hearing for your motion. If you request a hearing for your motion, the clerk will schedule it and give you a date and time for you to appear, unless your court follows a different procedure.^[28]
   • Once your hearing is scheduled, fill in the blanks on the original and each of the copies of your Notice of Hearing.
4. Have your motion served on the other party. Your Certificate of Service included a method of serving the motion on the plaintiff. Some courts require personal service while others allow you to complete service using certified mail.
   • If the plaintiff has an attorney, you must serve the attorney, not the plaintiff herself.^[29]
5. File proof of service, if required. Some courts require you to file a form proving you served your motion to the other side. The clerk will give you a form if you need one, which generally must be filled out by the person who completes service.^[30]
6. Receive the other side's response. After the plaintiff receives your motion, she has a period of time, usually a couple of weeks, in which to file a response.^[31]
   • If you receive a response to your motion, study it carefully. These are the arguments the other side will be making at the hearing to try to convince the judge to deny your motion.
   • Review your records and the facts of the case to see what information you can use to rebut the arguments the other side makes.

Arguing Your Motion

1. Appear in court at the date and time scheduled. When your hearing is scheduled, arrive early at the courthouse so you have plenty of time to park, go through security, and get settled before the hearing begins.
   • There may be other hearings scheduled before yours. If so, take a seat in the courtroom and wait until your name is called.
   • Dress neatly and conservatively, turn off your cell phone and other electronics, and treat all court staff with respect.^[32]
2. Present your argument. When the judge asks you why you want her to dismiss the case, explain your reasons clearly and succinctly.^[33]
   • You should bring copies of all of the exhibits or documents you compiled as evidence to support your argument, as well as multiple copies of all the papers that have been filed in the case.
   • Don't approach the bench or attempt to give the judge anything without asking first.
   • Remember that everything you say in court is under oath. False statements could lead to criminal charges for perjury.^[34]
3. Listen to the argument from the other side. The judge will give the plaintiff an opportunity to respond to your argument. Listen carefully to what she has to say, but don't interrupt.^[35]
4. Rebut the other side's argument. After the other side has presented her argument, the judge probably will give you an opportunity to have the last word before he makes his final ruling.^[36]
   • If you studied the other party's response to your motion, you already know what you're going to say and have prepared any evidence that might rebut her argument.
5. Listen to the judge's ruling. Once the judge has seen all evidence and heard from both sides, he will decide whether to grant or deny your motion. If he denies your motion, you usually will have ten days to file an answer to the complaint.^[37]
6. Get a final order. Typically, the judge expects the prevailing party to produce an order for him to sign. However, if you are representing yourself and win your motion, the judge may have court staff prepare a motion for you.
   • If you do have to prepare an order, give it the same caption as you gave your motion. Title it "Order." In the body of the motion, state when and where the hearing was held, the title of the motion argued, and what the judge ruled. Then add the judge's signature block.^[38]

Sources and Citations

Cite error: <ref> tags exist, but no <references/> tag was found

from How to of the Day http://ift.tt/1Kks7St