In a civil case, a motion to dismiss is a legal filing made by one party (defendant) to request the court to dismiss some or all of the claims brought against them by the opposing party (plaintiff). The motion is typically made early in the litigation process and aims to resolve the case without going to trial. The specific reasons available for filing a motion to dismiss can vary depending on the jurisdiction and the rules of the court, but some common grounds for filing such a motion include: 1. Lack of subject matter jurisdiction: The court must have the authority to hear and decide the type of case presented. If the court lacks jurisdiction over the subject matter of the lawsuit, the defendant can seek dismissal. 2. Lack of personal jurisdiction: A court must have jurisdiction over the defendant. If the defendant can show that they do not have sufficient contacts with the jurisdiction where the case was filed, they may seek dismissal based on lack of personal jurisdiction. 3. Improper venue: Venue refers to the proper location or court where a case should be filed. If the case was brought in an improper venue, the defendant may request dismissal or transfer to the correct venue. 4. Failure to state a claim (Failure to state a cause of action): The defendant may argue that the plaintiff's complaint fails to allege specific facts or legal elements necessary to establish a valid claim for relief. 5. Statute of limitations: Every legal claim has a statute of limitations, which sets a time limit within which a lawsuit must be filed. If the plaintiff filed the lawsuit after the expiration of the statute of limitations, the defendant can seek dismissal. 6. Res judicata or claim preclusion: If the same parties have previously litigated the same claim in another court, or if there has been a final judgment on the same claim, the defendant may argue that the plaintiff is barred from bringing the current case. 7. Failure to join an indispensable party: In some cases, an essential party may be missing from the lawsuit. The defendant can move to dismiss if the absence of this party prevents the court from granting complete relief. 8. Immunity or privilege: Some defendants, such as government officials performing their official duties, may be entitled to immunity or other legal privileges that shield them from certain types of lawsuits. It's important to note that the availability and grounds for filing a motion to dismiss can differ depending on the specific laws and rules of the jurisdiction in which the case is filed. Additionally, some jurisdictions might have other reasons beyond those listed here. Therefore, it's crucial for parties to seek legal counsel and research the applicable laws and rules for the relevant jurisdiction when considering a motion to dismiss in a civil case.
I couldn't believe this video was made because he said absolutely nothing and was of no value. You on the other hand are of excellent high value and I would love to talk to you about what I'm handling. Thanks for the highly detailed, cogent response. Maybe you should have a RU-vid channel instead of this guy
I am suing a dealership in small claims court, in New Jersey, and because I am doing this Pro se I am a little bit concerned about point # 4, but my understanding is that is always up to the judge to decide that, and I already made an amended complaint.
@@marcia-ww8xu agreed. This person that replied would get my business way before the original author. The reply lasted longer and gave more details than the original poster
8 has its exceptions though; you have to be working within the scope of your job....if the plaintiff can prove one acted with malice, gross negligence, extreme indifference then they can be sued, despite immunity
I am fighting motions to dismiss from three co-defendants, including the state. They are trying to defeat me on procedure, because I have the facts of their wrong-doing clearly explicated. I am pro se.
@@jdelawfirm8388 I was a day late on my reply to their motion to dismiss, because I counted the run time mistakenly. I think the judge will allow it, in the interest of justice. Also, I have a 42 USC section 1983 claim, but named the agency rather than the individual. I plan to seek leave to amend to correct that. I may also add a RICO claim, as two contractors were acting in concert with the state worker who illegally used her position of authority to slander me and violate my First, Fifth, and Fourteenth Amendment rights. I am claiming whistleblower status and have alleged retaliation (blacklisting - a criminal statute). So there is the question as to whether there is an implied right of private action. I believe that is a question of law, rather than procedure.
I assume that if you believe that the defense motion is without merit and nothing needs to be changed, you would not file an an amended complaint. You would have to file a reply explaining why you think the defense is wrong.
@@user-yr5rs3gk3g I believe in this context Mike meant opposition to the motion to dismiss. It is generally in an affidavit or affirmation form with the caption on top
Not here in Dallas TX. I'm in a civil case and a criminal case as we speak. The Defendant's filed a motion to dismiss on the grounds of failure to state claim. However i successfully stated claim. The judge has to review the the evidence and the defendant's answer to the complaint. And either Grant it or deny the motion to dismiss. Also the northern district of North Texas Dallas division judge ordered that I do not amend the complaint without prior court approval.
What if perjury is involved? Say the side trying to dismiss the case has lied about something that the other side could not have known about until well after the 20-day mark. Law isn't as clean as people think it is. The State can get away with their wrongdoings because they have judges by the throat.
Under this scenario, a motion to dismiss is filed Pre-Answer so there would not be any counterclaims. And In my jurisdictions you can file the Amended Complaint as of right, without filing a Motion to Amend within 20 days of receiving the Motion to Dismiss.
I filed a tpo on a guy who is harassing me. He was served. It expires 2/22. He has filed a motion to cancel the tpo and a hearing has been scheduled. What will I encounter at this hearing? Is that motion to cancel meant like to vacate, as if it never existed? I want that tpo to stay with him. What's my course of action at the hearing? Tia
I don't know specifically about Oregon, but here you can 1. Send in a letter, 2. Just not show up and it gets dismissed or 3. Show up and tell the court you are withdrawing the case.
What about if you were in a union and its about FMLA..would they try to say the courts have no Jurisdiction and then try to use the collective bargaining agreement as way to dismiss and handle it themselves? But if you can prove they breached the contract or broke the law or hid information.. like perhaps spoilation of evidence can't that help with motion to dismiss?
I don't practice employment law. However, I have been informed by an employment attorney that, you have to exhaust all union resources before you can file a lawsuit and you might have to push your union to keep moving the case forward. I suggest you speak with an employment attorney and if you are in the NY/NJ area, I can the best around.
Myself as the defendant in a debt collection lawsuit appeared in court, but the plaintiff and their lawyer was a no show, got it continued on a new date, just to go back to court and have the plaintiff lawyer say that I was late, clearly there is video and audio of myself present and stayed over the court time to get a continuous date, the fact that the plaintiff and their attorney was a no show plus being lied on by this attorney saying that I was late, is this enough to file a motion to dismiss, also I'm interested in counter suing. Please I need someone to help me on this.
No that is not enough to make a motion to dismiss. You might want to see if there is any agencies in your locality that helps in Consumer Debt cases. In New York City there is an Agency called CLARO that helps with that.
m8388 thanks for the response, it's so weird, but if it was reversed and I didn't show up then I would have defaulted and my wages would be garnished, but not only did the plaintiff didn't show up on the original court date but I was also lied on by the same plaintiff attorney, and nothing happens? So I just have to sit back and chew on this, this doesn't make sense to me
Hey, it won't let me reply back for some reason, any chance that we can Zoom for 15 minutes tomorrow ? If so, do you have an email address where I can send that link ? Thanks and I hope this finds you well.
Does the twenty days include weekends? Is the same true in a civil matter where the defendant files a petition to dismiss based on prejudice? Evidence submission is still being posted to the case jacket.
@@jdelawfirm8388 I received a judgement by default, the defendant replied with a motion to dismiss based on prejudice. The same evidence being submitted the defendant already has. But as the formatted evidence is being submitted it is being placed in the case jacket. The defendant did not comply with a reply after receiving a summons in 35 days.
I filed a motion on November 6 and sent courtesy copies to opposing counsel the same day. The hearing is scheduled for December 4. Opposing counsel has not responded to my motion. What happens? Do I automatically get ruled in my favor? Or, does my motion get waived?
The lawyer may oppose a little late. If the lawyer does not respond, the Court may grant or it may not if you have not proved what you needed to, to win the motion.
@@jdelawfirm8388 Follow up question: This is the third lie in a year where I've filed a motion. In the previous two, the judge acknowledged my complaint, but they got off with a technicality. This time, they cannot. And this time, I have physical evidence (a police report). So, here's my question: Could opposing counsel's silence mean he's finally withdrawn? That he's had enough of his client lying? To save his reputation? I added sanctions towards him for nonfeasance, suborning perjury, and malfeasance. He was lazy in not voir dire his client by asking her what she planned to say under oath. Then, after she lied, he did not go before the tribunal to inform the courts of her lie. It's a big lie, too: it got me kicked out of my house for 6 months.
I was awarded an arbitration award in my favor, the other party file a small claim court against based on the arbitration decision. He file after 30 days which makes my award binding. Do I have reasons to ask for a dismissal of the small claims file against me?
in my case I should have filed the complaint against the Driver who hit my car and not their insurance company. The judge gave me a hint to file a motion for leave to amend. However, is it better for me to initiate a new complaint against the driver and not involve the insurance company in my dismissed case?
@@jdelawfirm8388 I did start a new case against the driver and today I got a court response from the same attorney who was representing USAA her insurance company. The motion is requesting to dismiss the case stating claims that i was responsible the accident to my car. Obviouslly she hit my car while it was parked in the parking lot. I was not in the car at the time I was grocery shopping. When I came out she was waiting for me and she called her insurance and so on. How do I file a motion with the court to deny the dismissal and continue my case?
@@Diamond-gv7xw If they filed a motion, you need to oppose the motion. I can't tell you specifically the steps to take to do so. I suggest consulting with an attorney in your locality.
@@jdelawfirm8388 Can you tell me if I can get a copy of the initial auto accident claim report, that the defendant filed with her insurance company if I have filed a lawsuit against her?
@@Diamond-gv7xw You could always try and get the police report as that would have more value. If the case is not dismissed you can ask for it in discovery.
I don't practice divorce law. However, it does not sound like a motion to dismiss is appropriate here. I would consult with a divorce attorney on appropriate next steps.
As an attorney, I use my own form. You file it wherever you filed the original complaint. For me, most cases are online these days and I can file there.
@@jdelawfirm8388responding to defendant for motion to dismiss failure to state cause and relief. My complaint was already amended, can I amend it again?
