The motion to dismiss is one of the most well-known litigation documents. Unfortunately, most pro se litigants don’t know its purpose nor how to support or oppose it. For most, the motion to dismiss is like a rite of passage. You get sued; you move to dismiss in response.
Other case ending motions, like the motion for default judgment or the motion for summary judgment, might be more of a threat to the average litigant. However, the motion to dismiss is everybody’s “lawsuit be gone” motion.
The motion to dismiss asks or “moves” a judge to end a case because of deficient claims, improper service of process or for some other procedural error. A motion to dismiss will result in (1) a denial of the motion, (2) a dismissal “without prejudice”, allowing the plaintiff to amend the complaint, or (3) a dismissal “with prejudice”, which ends the case. The plaintiff may avoid dismissal by making the complaint and summons adhere closely to procedural requirements. Conversely, a defendant can get a dismissal by proving a single procedural deficiency in the complaint or summons.
Dismissing the Case Against You (Defendant)
As a defendant, you want to go over the complaint looking for procedural errors and omissions. For instance, gross misspellings, wrong names, false signatures, and missing signatures are procedural errors. An airtight complaint with nothing to challenge is rare. If the complaint is indeed tight, look for errors in the summons and service of summons.
Also, state factual and legal arguments for why the judge should rule in your favor. The facts must serve to defeat one or more of the elements in the claim. If you believe the plaintiff filed the case in the wrong venue or jurisdiction, state the facts you rely on and find cases and statutes that support you. Make your facts compelling.
Checklist of Things to Look for
Opposing the Motion to Dismiss (Plaintiff)
For the plaintiff, the best way to prepare for the motion to dismiss is to get the complaint, summons, and service of summons right from the start. Fortunately, it’s rare that a judge will flat out toss your case, even in instances where it’s weak. At the least, you’ll have a chance to amend a meritorious claim. Review the motion and try to understand the point(s) the defendant makes. Next, write your opposition. Then, address any point the defendant makes that would weaken your case. Make your opposing facts compelling.
Checklist of Things to Look For to Avoid Dismissal
____ Relevant facts in the motion that go against you (amend or refile your complaint to address the problem)
____ Relevant facts in the motion that you believe are not true (correct the facts with facts of your own) ____ Misstatement of facts (restate facts as you understand them)
In general, a judge considering dismissal won’t explore what happened in an accident. Instead, he’ll determine if the plaintiff properly wrote and delivered the complaint. That’s all. “I didn’t do it” does not satisfy this requirement for the defendant. On the other hand, a simple “I did it right” might not suffice to keep your complaint afloat. Learn what to look for and address what matters in a motion to dismiss.