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What is a Motion to Dismiss?

What is a Motion to Dismiss?
A motion to dismiss is a form of legal pleading in response to the filing of a court case in which the defendant request that the court throw the case out of court. A plaintiff may also file a motion to dismiss a case if a settlement is reached or if it is recommended by counsel that the case be closed. If the defendant files the motion to dismiss it is generally assumed that the defendant denies any claims brought forth by the plaintiff. A Motion to Dismiss can be filed in almost any type of litigation or case filed with the court, which includes but not limited to: Family Law, Divorce, Law Suits of any type, Bankruptcy, etc.

When Can Someone Ask for a Motion to Dismiss?
The courts typically grant a motion for dismissal in numerous situations; however, there are specific requirements that must be met in order for a motion of dismissal to be granted. “The arguments raised in the motion must be issues that the parties can argue about and that the court can address without needing any evidence that doesn’t already appear in the complaint and the motion itself.” If it is believed that more evidence is required to determine if the case can proceed then the motion to dismiss will generally be denied and a case will ensue. If the case is dismissed the court will ask the defendant to bring up the issues again in a motion for summary judgment following the discovery process.

Why Would Someone File for a Motion to Dismiss?
Motions to dismiss are generally filed in response to procedural issues; such as, if the case has been filed correctly, if the court has jurisdiction over the case, or to challenge the venue. In addition a party may use a motion to dismiss if they argue that they were not served correctly or if the plaintiff did not include the proper participant in the case. A motion to dismiss may also be used if the defendant believes that the plaintiff in the case failed to state a claim within their initial petition. A motion to dismiss for failure to state a claim is often referred to as a “12 (b) (6) motion—named after the Federal Rule of Civil Procedure. Even in the event that everything listed in the plaintiffs claim is absolutely correct that the court cannot process the case on the principal that there is no legal argument between the parties, there is an absence of law for damages/ injunction, or any other legal remedy. In other words the case is not ripe for hearing.

Statutes of Limitations
A motion for dismissal may also be used as an affirmative defense if the statute of limitations has passed for the matters brought forth by the plaintiff. Statutes of limitations are time limitations in which a party may bring forth legal suit over a particular matter. If there is a two year statute of limitations and a party decides to sue after the statute of limitations expires then the defendant may be victorious in their case if they choose to counter their claims with a motion to dismiss.

Can a Motion to Dismiss Be Used in Any Type of Case?
Yes, a motion to dismiss can be used in a wide variety of cases. To determine if a motion to dismiss is right for your case you should contact an experienced attorney or firm in the field of law pertinent to the plaintiffs’ claims.