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Motion to Dismiss
March 25, 2015 by: Content Team
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 DismissNoun
- 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 DismissA 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 JurisdictionThe 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 JurisdictionThe 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 VenueThe 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 GrantedIf 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 ProcessAccording 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. |
