A Motion to Dismiss is a request that the court dismiss a complaint that a plaintiff has filed against a defendant. Motions to Dismiss are supported by a defendant’s claim that a complaint is inadequate or improper. To sustain the original complaint, the plaintiff is obliged to respond to a Motion to Dismiss.
Carefully Read the Motion to Dismiss
Carefully read the Motion to Dismiss to identify the defendant’s claim against the filed complaint. There are various grounds for a Motion to Dismiss, such as lack of jurisdiction, failure to state a claim, improper venue, or improper service. The defendant’s motion may cite one or a combination of these grounds.
Draft a Response to the Motion to Dismiss
Draft a Response to the Motion to Dismiss in which you formally respond to the defendant’s stated claims against the complaint. Counter the defendant's specific arguments rather than simply reproducing the original complaint.
Try to Show the Jurisdiction is Proper
Counter the defendant’s claim against jurisdiction by proving that jurisdiction is proper in the court in which the matter has been filed. There are three main types of jurisdiction – personal, territorial and subject matter. Personal jurisdiction is the court’s authority over a person who has connections to where the incident occurred, but does not reside there.
For instance, a United States court cannot bind a Canadian resident to a case without due process, such as a hearing. Territorial jurisdiction refers to whether or not the court has authority over the area (and persons therein) in which the incident occurred. Subject matter jurisdiction refers to the kinds of cases that courts are authorized to hear. Certain matters, such as constitutional relevancy, are reserved for federal district courts; other matters, such as family law cases and crimes against state laws, are reserved for state courts.
Cite the Laws That Support Your Claim to Relief
Counter the defendant’s claim that you have failed to state a claim by citing the laws that support your claim to relief. Failure to state a claim means that the allegations in a complaint, even if true, do not entitle the plaintiff to relief or recovery under the law. To affirm your claim, cite the codes that entitle you to relief from the defendant.
Prove That the Venue is Proper
Counter the defendant’s claim of improper venue by proving that venue is proper. Normally, venue is proper in the city or county in which you or the defendant resides or in which the incident occurred. If necessary, submit proof of residency or proof that the incident occurred in a particular place.
Produce Evidence of Proper Service
Counter the defendant’s claim against service by producing evidence of proper service. For service to be proper, the defendant must be served by a non-party of legal age (18 or older) and competence within a time frame as dictated by the court. When a defendant is served with a complaint, the process server completes a return of service, which verifies that legal service was effected. Submit the return of service to the court as proof of proper service.
File the Response to the Motion to Dismiss in Time
File the Response to the Motion to Dismiss with the court within the time frame specified by the court. Failure to respond to the defendant’s motion will result in the court’s ruling in favor of the Motion to Dismiss.
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