![]() ![]() The court will review the motion to dismiss and the response, viewing the facts and allegations in the complaint in a light most favorable to the plaintiff.The deadline for responding can be found in the applicable rules of civil procedure. The other party has the opportunity to respond to the motion.The motion must be filed with the court and served on the other party.First, the motion should be filed before filing an answer to the complaint.The motion to dismiss procedure is comprised of the following steps: This, and other important rules for filing motions with the court, can be found in the rules of civil procedure for the jurisdiction where the complaint was filed. The most important thing to keep in mind when filing a motion to dismiss is the deadline for filing. This must be done before the defendant has answered the complaint and possibly alleged their own counterclaims against the plaintiff. In some cases the plaintiff can dismiss the case simply by filing a notice of dismissal with the court. ![]() The court can also decide on its own to dismiss the case “sua sponte”, though a motion to dismiss would not be filed in that situation. After the defendant has filed their answer to the complaint, the plaintiff and the defendant can come to an agreement and file a motion with the court to dismiss the case. A plaintiff can file a motion to voluntarily dismiss the case before the defendant has filed their answer. It is not true that only a defendant can file a motion to dismiss. If the plaintiff’s complaint does not include an accusation that the defendant caused the harm to the plaintiff, the defendant might file a motion to dismiss based on the plaintiff’s failure to include the element of causation in their claim. In other words, the plaintiff has not alleged a valid cause of action or has failed to allege all of the elements required for a particular cause of action.įor example, in a personal injury case claiming the defendant was negligent, the plaintiff must allege all of the elements of negligence. The defendant might also file a motion to dismiss because the plaintiff failed to state a claim for which relief can be granted. ![]() The plaintiff failed to name a necessary party in the complaint, or named the wrong party.The complaint was not served on the defendant properly.The venue, or location where the lawsuit was filed, is not proper. ![]()
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