• September 29

A Motion To Dismiss A Case

Accident Lawyer

A motion to dismiss is filed in nearly every civil lawsuit.  It’s an inexpensive way to try and dismiss a lawsuit without going to trial.  Effectively, it allows a party to dismiss a claim, defense, or in fortunate cases, an entire lawsuit.

Federally, a motion to dismiss is most commonly filed under Federal Rule of Civil Procedure (“FRCP”) 12 (b).  As required by FRCP 12 (b), every defense to a claim for relief must be asserted in a responsive pleading if one is required.  However, a party may also assert any of the following defenses by motion: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and  (7) failure to join a party under Rule 19.

The defenses in FRCP 12 (b)(2-5) are waivable.  This means that if they are not raised in the initial response to the complaint, either through a pre-answer motion or in the answer itself, they are waived and may not be subsequently raised.  All other defenses enumerated in FRCP 12 (b) can be raised at any time in the proceeding.

Jurisdiction is the most important thing to be alleged in a complaint.  Every plaintiff must have jurisdiction over a defendant, this is why Congress put lack of subject-matter jurisdiction and lack of personal jurisdiction at the top of the list.  Jurisdiction is the power within the court over the defendant to hear the case and potentially impose civil penalties and is in effect to ensure that the defendant’s Due Process Clause rights are not infringed.

Lack of venue is second in importance.  Venue refers to the actual location of the court where the case is set to be heard.  If the case is not brought in the proper venue, defendants will often file this 12 (b)(3) motion, and more often than not, the court may transfer the case to a different district or court where the venue is proper.

Insufficient process and service of process are also constitutional guarantees that protect the defendant. Process is easily understood to mean “notice.”  Service refers to putting the complaint and summons in the possession of the defendant so that the defendant has notice that there is a pending civil action against him or her.  If the plaintiff doesn’t sufficiently put the defendant on notice through service and process, the defendant cannot be held to be on notice, and therefore cannot be a party to the lawsuit.

Failure to state a claim is as simple as it sounds.  If a plaintiff includes a claim in their complaint that has very little or no factual basis, the plaintiff has “fail[ed] to state a claim.”  If there is no claim, there is no pending action.

Failing to properly join a party only applies when there is more than one party on either the defense or plaintiff’s side.  If a party has not been properly joined to the lawsuit, they are not considered part of the lawsuit and cannot benefit nor detriment from the outcome. If you are in need of legal assistance, reach out to a lawyer located near you immediately.

Thanks to an accident lawyer from our friends at Eglet Adams for their insight on Motions to Dismiss.

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