What Is a Motion to Dismiss?

Common Types of Motion to Dismiss

You need to provide a legal justification for filing a motion to dismiss because the purpose is to ensure both parties receive a fair trial. Both parties can file a motion to dismiss at any time, but they are most commonly filed by the defendant at the beginning of the lawsuit.

• Lack of jurisdiction – legal jurisdiction is one of the most important things to determine. Not every court will be able to hear certain cases. Some lawsuits may need to be heard in specialist courts such as family court or probate court. Also, a certain court may not have jurisdiction over the defendant. The court needs to be in your state and local area in order for the court to have legal jurisdiction. If the lawsuit has been filed with the wrong court, the court is likely to remove the case to the proper venue upon receiving a motion to dismiss rather than dismissing it completely. You should still hire a lawyer and begin preparing for the case as if it will go ahead.
  
  
• No legal claim for relief – Contrary to popular belief, you cannot file a lawsuit for any old reason. In order to file a lawsuit, your claim must be based in law, and the law must provide for relief. For a civil lawsuit, this must be based upon a negligent or intentional act. You can file a motion to dismiss if the legal claim the plaintiff make is not based on a duty of care you owe them.
  
  
• Failure to join a necessary party – This is another motion to dismiss that is unlikely to result in a dismissal. These types of motion to dismiss are based upon claims that you are not the only party involved in the claim. For example, if there was a car accident with multiple vehicles involved or if multiple people were at fault for a car accident, then all parties would need to appear in the trial. The result of this motion to dismiss is that the court will order the plaintiff to serve all the parties involved.
  
  
• Insufficient service of process/insufficiency of process – If the summons has a technical error, it is called an insufficiency of process. This is very rare but taken seriously as the defendant is notified of the lawsuit through a summons and uses the information to prepare. What is more common is insufficient service of process, which is the process in which the defendant is served their summons. This is quite common as many plaintiffs will be unsure of the right process or will try and take shortcuts. Make note of how you receive the summons and notify your attorney of the process. They will be able to note if there were any errors that may allow a motion to dismiss.

The Process of Filing a Motion to Dismiss

Each state has a different process for filing a motion to dismiss, and the law you need to follow is that of the legal jurisdiction where the lawsuit was filed. If the motion to dismiss is based upon the jurisdiction or legal claim in the lawsuit, then the defendant must file their motion to dismiss before they file a response to the claim. If they file their response, they cannot file a motion to dismiss based on those grounds.

The defendant must file the motion to dismiss with the court and serve a copy to the plaintiff and any other parties involved in the lawsuit, similar to how they would file their response. The motion to dismiss must be the first document filed with the court, even if they prepare their response just in case. This is one of the reasons we recommend hiring an attorney immediately upon receiving summons. Many defendants miss their opportunity to get the case dismissed by filing a response and then looking for an attorney.

The plaintiff has a few weeks to respond to the motion to dismiss, and the court will review both side’s arguments and make a decision.