What is a Motion to Dismiss?

Posted By David L. Carlson, Attorney At Law || 23-Nov-2015

A motion to dismiss is a formal request for a court to “throw out” a case, due to procedural issues. Generally, a legal document filed by the defendant once the plaintiff files a complaint, a defendant is able to file a motion to dismiss as opposed to filing an answer. Although the defendant didn’t file an answer which clearly denies the allegations in the complaint, most courts would assume the defendant opposes the complaint allegations.

A motion to dismiss is often filed based on the defendant’s belief that one or more affirmative defenses apply to the case, such as statute of limitations, which can be considered by the court after the motion has been filed.

What are the grounds for a motion to dismiss?

Since motions to dismiss concern the procedural portion of a court case, issues such as correct venue or if the court has jurisdiction over the case are considered. Other issues may include if the plaintiff intentionally excluded a vital party to the case in order to reach a fair verdict or if the complaint was served incorrectly.

How does a motion to dismiss become granted in court?

The arguments produced in the motion to dismiss needs to be matters that each party can argue about and which the court can address without any required evidence that had already been presented in the complaint and the motion as well. The court will typically deny the motion to dismiss and request the defendant to bring up the issues again in a motion for summary judgement, if more evidence is necessary.

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