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MOTION TO DISMISS A document filed with the court asking the judge to throw out certain claims in a civil or criminal case, or to throw out the case altogether, is called a “Motion to Dismiss.” A Motion to Dismiss is often filed by a defendant immediately after the lawsuit has been served, but may be filed at any time during the proceedings. If a Motion to Dismiss a civil lawsuit is granted by the judge, the lawsuit is immediately ended. Grounds for dismissal upon a motion are governed in each jurisdiction’s laws. To explore this concept, consider the following Motion to Dismiss definition.
Definition of Motion to Dismiss Noun 1. A motion filed by either party in a lawsuit asking the court to throw out part of the case, or the case in its entirety.
Reasons for Filing a Motion to Dismiss A Motion to Dismiss is often filed with the court at the earliest stages of the lawsuit, typically before either party has conducted their discovery. This is done when the defendant believes a claim in the lawsuit is legally invalid, or there are legitimate grounds for throwing the case out of court. When a Motion to Dismiss is filed, information supporting the grounds for dismissal must be included in the motion. There are different reasons for filing a Motion to Dismiss, many of which revolve around the following legal deficiencies:
Lack of Subject Matter Jurisdiction The court in which the lawsuit was filed does not have jurisdiction, or the authority, to rule on the matter at hand. For example, a suit requesting enforcement of a child support order cannot be heard in small claims court.
Lack of Personal Jurisdiction The court does not have the authority to rule on matters that affect one or all of the parties. For example, if Bob is in a car accident in Florida, and the other party involved in the accident files a lawsuit in California, the court would not be able to hear the case.
Improper Venue The court, or “venue,” in which the matter has been fined is the wrong court to hear the case. For example, Amanda’s accountant, Charlie, siphoned money out of her account for his personal use. Charlie is charged with the crime of embezzlement in criminal court. Amanda wants to sue Charlie for her financial losses, but the criminal court cannot hear that part of the case, as it is not the proper venue. Amanda must file a lawsuit in civil court for damages related to the crime.
Failure to State a Claim for Which Relief Can be Granted If the plaintiff fails to provide sufficient facts to, if taken on face value as being true, indicate that the defendant violated a law, or caused harm or loss due to negligence, he has failed to state a claim for which relief can be granted. In other words, if the complaint does not clearly say what the defendant did wrong, the court cannot grant any form of relief, and so the case does not need to be heard. For example, there is a company policy that employees greet one another in a friendly manner at work. Joe files a lawsuit claiming that Bob failed to say hello in passing. Bob can file a Motion to Dismiss, as failing to greet another person is not illegal, therefore there is no claim for which relief can be granted.
Insufficient Service of Process According to the law, a copy of the Summons and Complaint must be personally delivered to the defendant. This is referred to “service of process,” and may be done by a registered process server, the sheriff’s department, or a Constable. In most jurisdictions, service of process may also be accomplished by an individual over the age of majority, who is not involved in the case. Personally delivering the lawsuit to the defendant ensures he or she has been notified of the lawsuit, and has an opportunity to provide an answer to the complaint. A sworn, written statement of when, where, and how the documents were delivered must be filed with the court. In the event the defendant is not properly served, he or she can file a Motion to Dismiss based on insufficient service of process.
Passing of Statute of Limitations Each state has a statute of limitations, which is a set timeframe in which a plaintiff has to file a lawsuit. The timeframes vary by the type of case, as well as by jurisdiction. In any case, if the statute of limitations timeframe has expired, the plaintiff no longer has grounds to sue the defendant. For example, if state law requires a plaintiff to bring a negligence case within two years of the date of the injury, and the plaintiff waits two years and two weeks, the defendant can file a Motion to Dismiss, asking the entire case be thrown out. If the court grants the motion, the plaintiff cannot be granted relief on the matter.
How to File a Motion to Dismiss A Motion to Dismiss is prepared through a Motion to Dismiss form. The Motion to Dismiss form is contains the information about the case and the reason that the defendant is asking for the case at hand to be dismissed. During a pretrial conference called by either party or the judge, a Motion to Dismiss can be presented. This meeting of the parties is in place in order to settle minor issues and help the trial run smoothly. Other pretrial motions can also be brought up at this time. Other types of motions include:
Motion for Summary Judgment A Motion for Summary Judgment expresses to the court that there are no material facts in dispute, and so there is not need for a trial. The Motion for Summary Judgment asks the judge to simply render a decision based on the facts presented in the documents already filed with the court. The other party may argue that they do indeed dispute certain facts, and that they will present some evidence at trial that disputes those facts. If the summary judgment is granted, the lawsuit is ended, and the court will make an order.
Motion for Default Judgment When a defendant to a civil lawsuit fails to file an answer to the complaint within the time limit specified by law, the plaintiff may file a Motion for Default Judgment. In rendering a default judgment, the judge ends the case, often awarding whatever relief the plaintiff has requested.
Requirements for Filing a Motion to Dismiss The basic requirements necessary for filing a Motion to Dismiss are outlined in each jurisdiction’s statutes, and rules of civil procedure. Filing a Motion to Dismiss requires a written document be filed with the court, stating the reason the dismissal is requested. The written motion should be supported by evidence, such as police reports, affidavits, or other pertinent evidence. After a Motion to Dismiss has been filed, the opposing party can file an Answer to Motion to Dismiss. This response disputes the claims made in the motion. Once the motion and answer have been filed, a hearing will be held in which the judge will decide if a dismissal is warranted. If the judge does not agree, the case proceeds normally.
Withdrawal of Motion to Dismiss Once a Motion to Dismiss has been filed, the only way to withdraw it is for the filing party to formally requesting that the court remove the previously filed motion. A request for withdrawal of a motion must include the party’s reason for the withdrawal, and the decision of whether to do so is left with the judge. Withdrawals are most commonly done if the parties reach a settlement prior to a decision on the matter. Once the judge has ruled on a Motion to Dismiss, however, the order remains in place, regardless of the request for withdrawal.
Sua Sponte Dismissal A sua sponte dismissal is a voluntary dismissal, based on the court’s own motion. The court may enter a sua sponte dismissal of certain aspects of a case, or of the case in its entirety. A judge may order a sua sponte dismissal if he finds major problems with the case. For example, if the judge realizes, on review of the pleadings, that the court lacks jurisdiction over the subject matter, he will order a sua sponte dismissal.
Dismissal With Prejudice or Without Prejudice When a case is dismissed, it can be done so with prejudice, or without prejudice. Dismissing a case with prejudice means that the matter has been considered, and dismissed permanently, so that the plaintiff cannot bring the matter back before the court. The dismissal of a case without prejudice sometimes occurs when the plaintiff has either filed the case in the wrong court, has come to the court unprepared due to no fault of his own, or there is some other issue that needs to be taken care of before the case can be heard. A dismissal without prejudice enables the plaintiff to re-file the lawsuit at a later time.
Real Life Motion to Dismiss Defamation Lawsuit In February 2015, comedian Bill Cosby and his legal team filed a Motion to Dismiss a defamation lawsuit brought against him by three women, after he called them “liars” for claiming that he sexually assaulted them. Cosby makes the Motion to Dismiss based on the fact that such comments were made by his publicist and attorneys, not himself. Additionally, Cosby points out that the comments were made in self-defense, and could therefore not be considered defamation.
In his Motion to Dismiss, Cosby points out that he need not stand idly by while his accusers publicly attack him. Rather, any individual accused of serious wrongdoing has the right to deny allegations, and to question the integrity of the accusers, without fear of defamation charges. Cosby’s legal team makes the point that “statements made in self-defense are privileged, and cannot form the basis of a defamation action.” In this case, the judge must determine, from the pleadings filed with the court, whether the plaintiffs have stated a claim for which relief can be granted.
Related Legal Terms and Issues Answer – A pleading in which a defendant responds to a charge or complaint made by a plaintiff. Authority – The right or power to make decisions, give orders, or to control something or someone. Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person. Complaint – The initial pleading made by the plaintiff to being a civil lawsuit. It can also refer to documentation that details criminal charges against a defendant. Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense. Discovery – The process used by the plaintiff and defendants in court cases share information or facts possessed by the opposite party. Judgment – A formal decision made by a court in a lawsuit. Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice. Material Fact – A fact that a reasonable person would conclude is pertinent to the decision to be made, or which, if left out, would reasonably result in a different decision being made. Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings. Summons – An order or citation to appear in court, or to appear before a judge or magistrate.
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Welcome all discussions 49 Comments on "Motion to Dismiss"
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Jay
Guest
I have an order to pay what is my recourse to fight it Are you a lawyer?
-1
11 months 25 days ago
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Antoine Marshall
If you already have a judgment against you unless you are within your appeal window you cannot ‘fight’ it
Guest
unless there was some due process issue. You may have some options like filing for bankruptcy to discharge the judgment, but the judgment Are you a lawyer?
0
11 months 10 days ago
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Daniel Ford
Could you tell me the orc to file a motion to ask for dismissal of court cost and fines
Guest
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0
1 month 10 days ago
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Mike
Guest
If you are sent info listed in the discovery like documents but documents are listed but not sent to is that grounds for dismiss Are you a lawyer?
0
10 months 23 days ago
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Christina
What if the plaintiffs never filed there request for relief with the court, complied with requests made from
Guest
the magistrate, and is over 30 days over my request for discovery deadline can I ask the judge to dismiss there relief. Are you a lawyer?
0
10 months 18 days ago
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gfgdnd
use a motion to compel through the court/judge who should force them to produce, then go for
Guest
dismissal Are you a lawyer?
1
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10 months 16 days ago
Barbara
Guest
After filing a Motion to Dismiss and the court sets a hearing date does the party asking for the dismissal have an opportunity to file documents to support the request? Are you a lawyer?
3
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10 months 14 days ago
Mick
Guest
We were sued in Small Claims court in a State 6 hours away. We don’t live there, never done business there, never have lived there. He is suing based on work done to his property in our state. I filed a Motion to Dismiss due to no Jurisdiction. The judge wrote us back and said they would hear the motion on the trial date! How the hell can they force us to drive 12 hours because some guy said we did something in our state and filed in his own state???? Are you a lawyer?
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10 months 11 days ago
Ruthe florence
Guest
I recd order from judge for settlemenr conference i never recd a motion from defendant asking for it can judge order this as sounds like back room law Are you a lawyer?
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10 months 6 days ago
Yulonda S. Love
Guest
I am a plaintiff who had her 14th amendment rights violated by individuals who work for the state. The judge agreed but the defendants are trying to get a dismissal based on no judgement could be suitable for jury demand. Are you a lawyer?
0
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10 months 3 days ago
Brandon Chavez
Guest
I have a question Are you a lawyer?
0
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9 months 29 days ago
Brandon Chavez
Guest
Whats does it mean when dismissed by judge not on the rule Are you a lawyer?
2
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9 months 29 days ago
Guest2
Guest
Default order issued. Then Plaintiff moved to voluntarily dismiss case without prejudice and did not refile within time limits. Is default judgement still valid Are you a lawyer?
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9 months 27 days ago
Rhonda
Guest
I was served papers 2days before actual court date, from my HOA for past due fees AFTER I had left full amount, past due, taped to their office door.Given the short time frame for court date I could not miss work as I work in Surgery.Also, knowing the matter was relative to funds already paid, I called the HOA’s Attny the morning of the court date &left msg of my absence &why. Never heard back.2nd time served papers w/an order to fill out FIS&return notarized. Time flew,I completed,mailed, but without notary. Next thing I know I have Sheriff at front… Read more » Are you a lawyer?
1
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9 months 18 days ago
Talib Hussain
Guest
Me as plaintiff no show on pretrial hearing date Mar 13, 2017. I did join the Court but lat by 45 minute. The case was dismissed before I reached. March 12 was Sunday day light time saving. Clocks were advance by one hour. The judge dismissed all my claims. An order I received to appear in court on May 1 and explain why the relief sought by defendant not be granted. On May 01, The state court judge dismissed all the claims of defendant including attorney fee. The judge did deny motion to set aside by me, but advised me… Read more » Are you a lawyer?
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9 months 12 days ago
Beverly
Guest
We were presented a summons on one of two cases. We answered the summons on the one that got served. Now nearly 40 days later the plaintiff’s are requesting a motion for judgement saying we did not answer the summons. We sent them a copy but I suspect they thought it was for the other case and they went ahead and sent us the disclosure statement on that case even though it has not been served yet. I am in the process of completing my answer on this motion for judgment. Can I request a dismissal of the case since… Read more » Are you a lawyer?
0
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9 months 11 days ago
Kaylie L.
Guest
If I have filed a supplemental petition to terminate guardianship through extended family, and they respond with a motion to dismiss, what happens next? Are you a lawyer?
0
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9 months 5 days ago
John Hansen
Guest
is a notarized affidavit admissible in court if the person making it is not available for cross examination? Are you a lawyer?
2
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8 months 27 days ago
T long
Guest
Can a defendent file a motion for dismissal based on the fact that the codefendant has no real interest in the property being disputed? (Adverse easement) Are you a lawyer?
0
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8 months 17 days ago
Monte Christian
Guest
In January of this year my lawyer filled a judgment against me in district civil court, I went and explained my situation and the judge ruled that my case was dismissed but then all of a sudden a 10days ago I received the same law suit again from the lawyer which was filled with the same court for the same judgment. So, my question is… Is that legal? Are you a lawyer?
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8 months 16 days ago
Eileen Townsend
Guest
Entered a Motion to Dismiss case AFTER judgement rendered on custody case. Facts given. We requested dismiss with prejudice, are we then the plaintiff or is Erik as he was the one who filed? If granted, will Erik be prevented from filing again or are we prevented? Can we use the evidence we have presented in this case on other cases if we leave it this way? Texas – Brazoria county Are you a lawyer?
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8 months 16 days ago
Ronald Faulkner
Guest
I was sued in small claims court. I appeared in court and was prepared. In my answer i stated i believed i owed money but not as much as claimed. Plaintiff showed up with a piece of notebook paper. The judge issued continuance and they did not show. Now they appeal a default judgement. What do i do? Are you a lawyer?
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8 months 6 days ago
Mrs. CJ. De Rosa
Guest
Court appointed attorney for defendant charged with two counts Larceny of Dog. Attorney meets with defendant one time, tells defendant “this is a B…S… case; you’ve done nothing wrong. You need to hire me. If not, I will the tell the judge I don’t think you’re indigent and request a ‘pass’ on the case”. After five months of continuances, attorney verbally requests and is granted a ‘pass’. With verified and approved Indgent Application still valid and in effect, the Judge orders defendant to obtain own attorney or face revocation of bail and returned to jail and recommending defendant against self… Read more » Are you a lawyer?
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7 months 26 days ago
Victoria shimek
Guest
I have been sued in small claims court. I have filed my answer and have been awaiting a court date. how long before the judge dismisses it or do I have to do it myself? I have not heard anything and it has been 3 months Are you a lawyer?
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7 months 20 days ago
Lindy
Guest
My mother made a police report on my brother, he went in her purse in fromt of her and stold 300.00 now there is a warrant out for him.My mother is 80 years old and does not want to go thru with this. can she get this thrown out somehow? Maybe like a motion to dismiss? Mom does not want to see him go to prison being that he already served 7 years.What are the chances of getting a motion to dismiss in michigan? Are you a lawyer?
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7 months 13 days ago
Ola
Guest
If a barrister is been sue for drug planting yet he or she is not found guilty,would he or she be dismissed ?? Are you a lawyer?
0
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7 months 1 day ago
Kathlyn
Guest
in Texas what’s the statue of limitations on a judgement without prejudice? Are you a lawyer?
0
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6 months 26 days ago
Kay
Guest
Can a motion to dismiss be filed without an attorney Are you a lawyer?
0
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6 months 13 days ago
Kay
Guest
How can I file a motion to dismiss after being for a debt that should have been dismissed in a bankruptsy in 2011 Are you a lawyer?
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6 months 13 days ago
Gerry
Guest
If a court dismissed a claim for Summary dismissal stating there is a case to answer, can the applicant get costs from the Plaintiff? Are you a lawyer?
0
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5 months 25 days ago
Mr. C
Guest
I was REGULAR US MAILED(Not personally delivered, or even a certified, return receipt) Misdemeanor criminal summons for I-M Cyberstalking in North Carolina. Long standing feud with a neighbor. Claims I sent him several text messages for the purpose of harrassing and threatening him, after being notified to stop contacting him. HE claims that HE notified me by text. Not a judges order, no court order, not even a letter. I looked at the court calendar (which is tomorrow) and there are like 100 cases!!! The text that I sent, stated that if he had such a problem with me, he… Read more » Are you a lawyer?
0
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5 months 24 days ago
Guest
Guest
If a judge makes a mistake in the sentencing order is that a good reason to dismiss the case. Are you a lawyer?
0
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5 months 20 days ago
Guest
Guest
If a judge makes a mistake in the sentencing order, is that a good reason to get case dismissed? Are you a lawyer?
0
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5 months 20 days ago
Laura
Guest
Party A filed for emergency orders in a district court while matter was open in 2 probate courts. No notice provided to Party B. Is the proper filing a motion to dismiss? Improper notice? Improper venue, jurisdiction all of the above? Are you a lawyer?
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5 months 13 days ago
Lisa Hammond
Guest
In Georgia, can I file a “Motion to Dismiss” a case after a judgement, because the plaintiff lied and altered original documents, and did not obey the supenoa that she was served ? Are you a lawyer?
0
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3 months 27 days ago
melissa
Guest
So my exhusband wants my son whom is 16 almost 17 to speak to the judge to tell her who he wants to live with my x is saying me and my husband are neglecting and abusing our child which there is no proof its called a GAL a lien . So i want to file a motion to dismiss can i do this without an attorney i cant afford one and he is falsley accusing me and my husband , my son says he didnt say he wanted to speak with the judge so what can i do ? Are you a lawyer?
1
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3 months 23 days ago
Shamaley
Guest
What are you suppose to do if dependent’s attorney files a Motion to Dismiss your Complaint? What is my next move? Are you a lawyer?
0
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3 months 1 day ago
Shamaley
Guest
Should I file a Opposition Motion against a Motion to Dismiss against the other parties Motion Are you a lawyer?
0
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3 months 1 day ago
Shawn
Guest
I’ve been free from my incarceration for close to 20 yrs and up until I applied for clemency believed restitution ordered by the court paid through the PRIDE of FL program. I’ve checked case status and remarks show the case as being closed. What legal course would I have to get the restitution order removed if any at all? Are you a lawyer?
0
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2 months 30 days ago
Chuck
The judge granted a MTD w/prejudice and the defendant
filed a request for attorney’s fees. Can I file a MTD the request for attorney’s? I am Pro Se Guest
Are you a lawyer?
0
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2 months 30 days ago
Elizabeth
Guest
If in dismissal request is based on statue of limitations. And admission of wrong doing was admitted by agency does statue start at time of admission because event happened before? Are you a lawyer?
0
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2 months 24 days ago
Michelle Turner
Guest
1 a person not the entity filed an appeal 2. This person didn’t use the name of the entity He used a diffrent company he’s affliated with.3. He also told the court he mailed the paperwork on such date when he actually mailed this item a weekk later as indicated on bought dates postage stamp. Can I ask the cour rd to dismiss on these bases? Are you a lawyer?
0
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2 months 22 days ago
judi
Guest
my friend son was driving his car with her lic plates she had forgotten he took it and reported it stolen he was stop and now she has to go to courts what can happen she wants to dismiss it . Are you a lawyer?
0
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1 month 16 days ago
Mr.Randall R. Bergerud
Guest
i am involved in a civil case.I am Pro Se.I was given IFP status. I will have to file a motion to Dismiss without prejudice,because I do not have any money to pay for depositions,subpoenas,witnesses,etc. The people.that I am accusing of a felony crime,have a lot of money.so far,the federal has done nothing,(Although supposed to by law),and the state authorities have refused to do anything to the people,despite knowing,what the evidence consists of,or where it is at.What can I do?There is quite a lot of money to be made,if I can just get beyond this. Are you a lawyer?
0
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1 month 2 days ago
Randall
Guest
How do I find answers to my questions? Are you a lawyer?
0
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1 month 2 days ago
Anonymous
Guest
If a motion has expired, how can the defendant’s attorney file another order to continue the case? We had a motion that expired due to lack of communication with the defendant’s attorney, a year had lapsed and nothing was done with the case, and the case expired. Now, the defendant’s attorney is filing a motion to continue the case (two months after the case expired). What are the chances that the court will grant this continuation? Are you a lawyer?
0
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29 days 9 hours ago
Joe
Guest
assault &battery report has two different names for the business that it happened at and neither one was right can I motion for dismissal Are you a lawyer?
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9 days 6 hours ago
Sharlet
Guest
I was served with Owner Restitution Petition on 1/29/18. My son’s petition was delivered to me as well. He is 24, was out of town the entire week. I responded to the motion on 2/1/18. I was moved out, as stated by 2/7/18. The hearing was scheduled for 2/7/18, I had a pre planned trip already booked prior to any of this, so I notified court I would be out of town. I spoke to the clerk about continuance, never heard back prior to leaving town. The judge ruled for a default Writ of Restitution, only knew this by looking… Read more » Are you a lawyer?
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4 days 9 hours ago
Zina Kerby
Guest
How do I file a motion to dismiss if my case was dismissed without prejudice because I failed to clear probate notes in a timely manner. I am attempting to resubmit my “Spousal and Domestic Partner Property Petition” with the courts along with the original Living Will and Trust my deceased husband left me. His estranged daughter was appointed Trustee based on an old Living Will and Trust from April 12, 1991. My husband amended his will prior to his death dated August 12, 2014 and he completely removed his daughter, however, due to a loss in income I have… Read more » Are you a lawyer?
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Terms of Service
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6 minutes 7 seconds ago