How to File a Motion to Dismiss in Georgia

Being charged with a crime or served with a lawsuit in Georgia doesn't automatically mean your case will go to trial. If the case is frivolous or the other side has made errors, you may file a Motion to Dismiss. If the judge grants the motion, then the case is effectively thrown out of court.

Motions to dismiss are based on errors in the legal procedure. The idea is to avoid wasting the court's time when the case is clearly invalid. Common reasons for filing a motion include:

• The statute of limitations has passed, and you can no longer legally be tried for a particular crime.
  
• Police didn't follow the correct procedures when arresting you for a crime, for example, they pulled you over without reasonable suspicion.
  
• You weren't served with the correct complaint or court summons, or you were served in the wrong way or out of time.
  
• The plaintiff filed the case in the wrong court.
  

Basically, you have to show that there's been an error in the legal process. The judge is not interested in your guilt or innocence, just whether there's a legal deficiency of some sort.

You can file a motion to dismiss whether you're being prosecuted for a crime in the criminal courts or sued by a private individual in the civil courts. Usually, an attorney would handle this for you but if you're representing yourself, start by looking for a "Motion to Dismiss" form on the court's website or by calling the court clerk. Most Georgia magistrate court forms, for example, are available online for public download. If there's no form available, search the internet for some examples – the 2010 Georgia Official Code 9-11-119 contains an example of how a Motion to Dismiss should be laid out. Writing the motion is mostly just a case of filling in the blanks. The only tricky part is writing why you want the lawsuit dismissed.

Read More: How to Write a Motion to Dismiss

While every motion to dismiss is different, your main objective is to set out the law and the facts that allow the judge to grant your motion. State your case as concisely as possible – don't waste the judge's time. Suppose, for example, you were being sued for an unpaid debt, and the plaintiff didn't serve the summons properly. Here's what you might write:

"1. The Defendant asks the court to dismiss the action due to improper method of service.

2. According to O.C.G.A. § 9-11-4(e)(7), a summons and complaint must be served on the defendant personally or "by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process."

3. However, the plaintiff left the summons with a neighbor's teenage son without speaking to anyone at the defendant's property."

Once you have prepared the motion, sign and date it, then make several copies. Take the documents to the court clerk and ask to file the motion. You may have to pay a filing fee, depending on the court. The registrar will stamp your motion and return a copy to you. You're responsible for serving the paperwork on the other side. Generally, you'll hand the motion directly to the plaintiff or leave it with another adult at the plaintiff's home address. Alternatively, you can ask the sheriff to serve the motion for you. It is now up to the judge to decide whether a hearing is necessary. Sometimes, the judge will make a decision based on the motion you've submitted. Other times, you'll have to argue your position in court.