A motion is a request, addressed to the court, asking the court to take action on a case. A Motion to Dismiss is a specific request to the court asking it to dismiss a case. Although it may seem like a complex, challenging task, there are rules to help simplify the process. All you have to do is prepare the motion and any supporting documentation, file it with the court and serve on opposing parties.
What Is a Pro Se Litigant?
The term pro se is rooted in Latin meaning "for oneself" or "appearing on one's own behalf." In the legal context, a pro se litigant is one who appears on her own behalf in a court of law. This term can apply to parties on either side of a case. You can appear as a pro se plaintiff or a pro se defendant in most cases in our American judicial system.
In short, a pro se litigant is someone who doesn't have a lawyer.
Pro se litigants appear in a variety of cases, including bankruptcy, landlord/tenant, domestic relations and foreclosure. Appearing on their own behalf helps pro se litigants to save both time and money. However, pro se status does not mean you are exempt from following court rules and procedures. Pro se litigants are responsible for following the same rules and regulations as the licensed attorneys who appear before the court.
What Is a Motion to Dismiss?
The Federal Rules of Civil Procedure, which guide all civil cases in federal court, are readily available online, and those appearing before a court on their own behalf should familiarize themselves with the rules most applicable to their case. If you're not in federal court, your state's laws and rules may vary; however, the federal rules provide an excellent illustration of how these types of rules work.
A plaintiff, the person who filed the lawsuit, may voluntarily request dismissal of a case without a court order. By contrast, an involuntary dismissal request may be filed by the defendant, or the person against whom the case was filed.
The timing of filing a Motion to Dismiss is subject to the rules of procedure where you live. Often a Motion to Dismiss is filed at the beginning of the case, instead of filing an “answer” or response to the complaint. You should check with your local court to determine the precise number of days you have to respond to the case.
Specific reasons for dismissal include:
- Lack of subject matter jurisdiction (whether the court has the actual power to hear and rule on case before it).
- Lack of personal jurisdiction (does the court have power to issue a ruling regarding the defendant).
- Improper venue (does the court have the power to adjudicate, based on the location where plaintiff was harmed).
- Insufficient process (the content of the summons and complaint are defective in some way).
- Insufficient service of process (insufficient service of process refers to how the summons and complaint was served – plaintiffs are required to physically serve the defendant with a court's summons and complaint).
- Failure to state a claim upon which relief can be granted (all claims raised in a complaint must be accurate and sufficient to establish a cause of action).
- Failure to join a party under the rules (complaint must include all parties absolutely necessary to the resolution of the case).
Preparing a Motion to Dismiss
Although either party to a case may make an oral request at trial to have a case dismissed, Motions to Dismiss are typically submitted in writing and accompanied by a supporting document called a Memorandum of Law. The Memorandum of Law, which may include a proposed order, is a document that lays out the reasons why the court should grant your request backed by statute and previous case law.
Motions, other than those made orally during the course of a trial, must be submitted in writing and lay out the grounds on which relief is being sought. A motion itself addresses the court, identifies the grounds upon which the moving party is seeking dismissal and provides the court with an opportunity to review the attached memorandum of law or brief (they are functionally the same thing).
The level of detail provided in a Motion to Dismiss is generally contingent upon the nature of the underlying motion, the expected position of the opposing party and your anticipated expectations of the court. These expectations can vary from court to court and jurisdiction to jurisdiction. A pro se litigant should do some research on the court and judges that may hear their case before submitting any pleadings, such as complaints or motions.
Typically, a memorandum of law or a brief will include: a brief introduction of the case and the issues presented in the motion; a section for relevant facts; the statutory framework for the case; a legal argument that lays out why the court should rule in your favor; and reiterate the specific relief requested in the underlying motion. Again, check your court's local rules, because it may have specific guidelines for what should be in a brief.
Although this process may seem daunting, most courts have ample resources to help pro se litigants. At a bare minimum, a pro se litigant should have access to the court's law library. Such access will help a pro se litigant to research the statutes and legal cases to support the legal arguments raised in the Memorandum of Law.
Law libraries and law librarians are also excellent resources to determine the proper format and similar technical details associated with filing a Motion to Dismiss. Local courts may have their own detailed rules that govern the form, content, timing of the memorandum and proposed orders and motions. It is highly advisable to consult with your local court for such rules.
Filing the Motion to Dismiss
Physically filing a Motion to Dismiss is fairly simple. Litigants may either file in person or online, depending upon the court rules. There are typically fees associated with filing motions and supported documentation, which vary from jurisdiction to jurisdiction. It is imperative to inquire with the court clerk to determine what fees are required. If a pro se litigant cannot afford the filing fees, they can ask for relief; with proper documentation, many courts will waive the fees.
Once the motion is filed, you will have to ensure it is timely served on the opposing party. Some courts allow service of motions by mail; others may require personal service using a process server or a sheriff. Check with the clerk's office for details. If the court has waived your fees, check with the clerk's office to determine if you are eligible to have an officer of the court serve for you. Because time to serve may differ depending on court or jurisdiction, litigants should ask the clerk of the court for guidance.
When Will the Court Rule on a Motion to Dismiss?
It is quite natural for a litigant to wonder how long it will take for a judge to rule on a Motion to Dismiss. This is difficult to predict for several reasons. First and foremost, litigants should realize that judges are people too, with lives outside the courtroom. This may affect the amount of time a judge has to review and assess the motions before it. Beyond this simple fact, the timing of the court's decision is contingent upon many factors, including the type of case, the urgency of the matter and the weight of the court's docket.
Read More: How to Write a Motion to Dismiss
Melissa McCall is an accomplished lawyer, science journalist and legal analyst. She graduated cum laude from Syracuse University in 2003 and spent two years as a Judicial Law Clerk, followed by 2 years at a general litigation firm and a brief stint as the Director of Environmental Protection for the Virgin Islands. Since leaving the US Virgin Islands, she has worked as a legal recruiter, legal writer and legal analyst.