When you're served with a lawsuit, the first thing you are likely to do is figure out a way to get rid of it.If you can find a way to dismiss the lawsuit, it will save you a lot of time and money.There are legitimate reasons why the lawsuit should be dismissed if you read the complaint and charges carefully.There is a general process you can use to find reasons for a civil lawsuit to be dismissed.
Step 1: Determine if the court has the jurisdiction to hear the case.
If the court where the lawsuit was filed doesn't have the power to decide the type of claim, you can ask for it to be dismissed.Many states have separate family courts that decide family law cases.You would have an argument if your spouse files for divorce in a general civil court.If there is no jurisdiction, the court will dismiss the lawsuit.The dismissals are referred to as sua sponte motions because the court makes the motion and then makes a decision on its own motion.The dismissal is usually entered as a dismissal without prejudice, meaning that the lawsuit can be filed again in the correct court.
Step 2: If the court has jurisdiction over you, you should determine it.
If the court where the lawsuit was filed doesn't have the power to order you to do anything, you can request that it be dismissed.The lawsuit needs to be filed in the state or county where the incident took place.If you get into a car wreck on the way to Disneyland, the person driving the other car could file a lawsuit against you in Orange County, California.You could be sued in Clark County, Nevada, if you live in Las Vegas.If you live in Jefferson County, Alabama, the person driving the other car will not be able to file a lawsuit against you.The court doesn't have enough connections to exercise power over you.If the court lacks personal jurisdiction over you and you make another pleading such as answering the complaint without raising the issue, you probably will be considered to have waived that objection.
Step 3: Decide if the lawsuit should be filed in the correct place.
Even if the court has jurisdiction, you can still argue that the lawsuit should be dismissed for lack of venue.When venue is appropriate is determined by each county and state.Even if the court has personal and subject matter jurisdiction, sometimes the exact location you're being sued is a legally improper venue.The court will usually order the case to be transferred to the proper location if the venue is improper.If you don't mention the venue in the first document you file with the court, you waive it.
Step 4: Make certain the lawsuit was served correctly.
Since you're trying to have the lawsuit thrown out, each court has specific requirements for how you must be notified of a lawsuit against you.You can argue that the lawsuit should be thrown out if the plaintiff did not follow the court's rules.If the court's rules require the lawsuit to be handed to you in person, but you received a copy of the complaint in the mail, you could argue that the case should be dismissed due to insufficient process.You don't have to object to insufficient process if you file a response to the complaint but fail to bring it up.
Step 5: Check the statute of limitations.
Statutes of limitations give deadlines for the filing of claims in civil lawsuits.The lawsuit can be dismissed on those grounds if the deadline passed before the lawsuit was filed.In 2010, you entered into a contract with someone in Maryland.There is a three year statute of limitations on lawsuits related to written contracts.If you are sued in 2015, you can file a motion to dismiss because the statute of limitations has already run.
Step 6: Determine the elements of the claim.
If the facts show a claim against you, the lawsuit should be dismissed.The motion to dismiss is called a motion for summary judgment and is more complex than the other motions.In a summary judgment motion, you argue that the facts do not add up to a legal claim for which the court can award damages.You argue that the judge should rule in your favor without a trial.If the judge grants your motion, she makes a final decision in the case.
Step 7: There is a form to look for.
You can use a blank motions form if you want to dismiss certain motions.You can use a copy of a similar motion that was filed in the same court in a previous case as a guide to make sure you've formatted everything properly if you can't find an appropriate form.
Step 8: The caption needs to be copied.
The same caption will be used for your motion and the complaint.
Step 9: Your motion should be title.
The title tells the court what document is being filed.If you add the reason you're arguing for dismissal, you might be able to get away with it.
Step 10: The introductory paragraph is where you should write it.
The first paragraph of your motion should state who you are, what the lawsuit is, and what you're asking the court to do.Don't list facts or reasons in the introduction, simply state your name, the name of the person suing you, and that you're filing a motion to dismiss.
Step 11: Write what you are doing in your body.
Why you think the lawsuit should be dismissed is explained in the body of your motion.You list the facts first, followed by your legal reasons in numbered paragraphs.There is a single fact or reason in each paragraph.If you want to tell a story in paragraphs, think about listing facts and reasons in an outline.
Step 12: If you want the lawsuit to be thrown out, ask the court.
The final paragraph of your motion will ask the court to dismiss the lawsuit because of the reasons stated in the motion.The court can dismiss the lawsuit with prejudice or without prejudice.It depends on why you're asking the court to dismiss the case.The court can dismiss a lawsuit with prejudice, which means that another lawsuit can't be filed against you.The lawsuit can be dismissed without prejudice if the same issues are involved.It is more appropriate to request a dismissal without prejudice if the claim is legitimate but the person has made a mistake that is easy to correct.
Step 13: Your signature block needs to be formatted.
Leave a blank line or some space for your signature when you type a statement that everything in the motion is true and correct to the best of your knowledge.Check the court's rules to make sure everything is formatted correctly.In most cases, the local rules will include details such as the size or thickness of paper you should use and the color of ink that should be used in court documents.
Step 14: A certificate of service is needed.
If you include a certificate of service at the end of your motion, the court will know how you will serve the other parties to the case.Even though most jurisdictions have a form you can use for your certificate of service, you still must add your name, the names of other parties in the case, and how you plan to serve your motion: either by certified mail or hand delivery.
Step 15: The court requires other forms.
Since each court has its own rules, you should call the clerk to find out if you need a cover letter.
Step 16: Think about drafting your answer.
If you haven't drafted an answer to the complaint, you need to.You will need to draft an answer to the complaint if the judge doesn't grant your motion to dismiss.A lot of the issues you would raise in an answer to the complaint can be raised in a motion to dismiss.To find out which approach would best serve your interests, review the rules or consult an attorney.
Step 17: You should sign the motion.
Print it out and sign it once you're happy with your motion.You may be required to sign your motion in front of a public official.The clerk of courts can tell you if this is necessary.
Step 18: Copies of your motion should be made.
The clerk will keep your original when you file it, so make at least one copy for your own records and one for the person who sued you.
Step 19: You can file the motion with the court.
You can file your original and copies at the clerk's office.Unless you apply for a waiver of fees in the case, you have to pay filing fees.The filing fees for a motion are usually less than $100.If you cannot afford the filing fees, you can apply for a waiving of them.You have to fill out a form and provide proof of your finances.
Step 20: Have the court serve the person.
You must get a copy of your motion from the sheriff's department or a private process serving company if you want to serve the person.The method of service that you chose is included in the certificate.Proof of service should be filed with the clerk after service is complete to make sure the judge is aware of the motion.If the court prefers you to mail copies of the motion to the other parties, you should contact the clerk ahead of time.This procedure can vary from jurisdiction to jurisdiction.
Step 21: Wait for an answer.
She will have the opportunity to respond to your motion when she is served.The court is more than likely to schedule a hearing to decide the motion if the lawsuit files a response to it.
Step 22: When your motion is scheduled to be heard, you should appear in court.
The court will schedule a hearing to decide if the lawsuit should be dismissed.The motion will be dismissed if you don't show up for the hearing.Prepare to argue your motion to the judge if you arrive at the correct courtroom on time.Take care of your papers and have your notes ready.You should bring at least one copy of your motion with you to court.
Step 23: Look at your motion.
You will present your argument to the judge after you filed the motion.Stand and explain why you think the lawsuit should be thrown out.
Step 24: Listen to the other side's arguments.
The reason why the lawsuit should not be dismissed will be presented after you've presented your argument.The court will usually grant your motion if the plaintiff doesn't show up for the hearing.If this happens, you should bring a draft of the order granting your motion.The woman will have a chance to defend her lawsuit if she shows up.You may be able to explain why her statements were incorrect after she's finished.Don't talk to her while she's speaking.If you want to make a statement after the person is done speaking, ask the judge.The judge may have questions for both of you.Don't interrupt the judge if he asks you questions.Wait until he's finished asking the question and then answer it clearly and concisely.Don't go off topic.
Step 25: The judge will make a ruling.
The judge will make a decision after both sides have been heard.The judge can either make a decision immediately after hearing both sides, or he can take the matter under advisement after reviewing the pleadings again.The clerk's office will usually send you a copy of the final order.An additional notice of a scheduled hearing may be included in the final order if your motion was denied.