How to Dismiss a Civil Lawsuit

Four Parts:Reviewing the ComplaintDrafting Your MotionFiling Your MotionAttending the Hearing on Your Motion

When you're served with a lawsuit, your first response probably is to try to figure out a way to get rid of it. If you can find a way to have the lawsuit dismissed, it will save you a lot of time and money. A careful reading of the complaint and charges filed against you may reveal legitimate reasons why the lawsuit should be dismissed. Although specifics vary depending on the jurisdiction, there is a general process you can use to to find reasons to have any civil lawsuit dismissed.

Part 1
Reviewing the Complaint

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    Determine if the court has proper jurisdiction over the subject matter of the lawsuit. If the court where the lawsuit was filed does not have the power to decide the type of claim asserted in the lawsuit, you can request that the lawsuit be dismissed.
    • For example, many states have separate family courts to decide family law cases such as custody and divorce. If your spouse files for divorce in a general civil court, you would have an argument that she'd filed in the wrong court.[1]
    • In some cases, the court itself will dismiss the lawsuit if there is obviously no jurisdiction. These dismissals are referred to as sua sponte motions, meaning the court is making the motion itself and then making a decision on its own motion.[2]
    • Sua sponte dismissals typically are entered as a dismissal "without prejudice," meaning that the plaintiff is free to file her lawsuit again in the correct court.[3]
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    Determine if the court has proper jurisdiction over you. If the court where the lawsuit was filed does not have the power to order you to do anything, you can request that the lawsuit be dismissed.
    • Typically, the lawsuit needs to be filed either in the state and county where you live, or in the state and county where the incident that gave rise to the lawsuit took place.[4]
    • For example, if you got into a car wreck on the way to Disneyland, the person driving the other car could sue you in Orange County, California. Assuming you live in Las Vegas, Nevada, the person also could sue you in Clark County, Nevada. However, if the person driving the other car lives in Birmingham, she cannot sue you in Jefferson County, Alabama, no matter how convenient it is for her. You don't have enough connections to that place for the court 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 of the lack of personal jurisdiction, you probably will be considered to have waived that objection and consented to the court's power over you.[5]
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    Decide whether the plaintiff chose the correct location to file the suit. Even if the court has jurisdiction, you still can argue that the lawsuit should be transferred or dismissed for lack of venue.
    • Each county and state has its own rules regarding when venue is appropriate. Sometimes the exact location you're being sued is a legally improper venue even if the court has personal and subject matter jurisdiction.
    • Typically if venue is improper, the court will simply order the case transferred to the proper location rather than dismissed.[6]
    • Venue, like personal jurisdiction, is an objection that you waive if you don't mention it in the first document you file with the court.[7]
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    Make sure the lawsuit was served on you correctly. Obviously you've received the lawsuit since you're making an effort to have it dismissed, but each court has specific requirements for how you must be notified of a lawsuit against you.
    • If the plaintiff did not follow the court's rules, you can argue that the lawsuit should be dismissed because of improper service. For example, 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.[8]
    • Like venue and personal jurisdiction, you waive the right to object to insufficient process if you file a response to the complaint and fail to bring it up.[9]
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    Check the statute of limitations. All civil lawsuits are governed by statutes of limitations that provide deadlines for the filing of claims. If the deadline passed before the lawsuit was filed, you can have the lawsuit dismissed on those grounds.
    • For example, suppose you entered into a contract with someone in Maryland in 2010. The statute of limitations on lawsuits related to written contracts in Maryland is three years. Thus, if you are sued in 2015 on the 2010 written contract, you can file a motion to dismiss because the statute of limitations has already run on that action.[10]
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    Analyze the elements of each claim. You may argue the lawsuit should be dismissed if the plaintiff has failed to explain how the facts demonstrate a claim against you.
    • This sort of motion to dismiss is also called a motion for summary judgment, and is a bit more complex than the other, more procedural motions. In a summary judgment motion, you are stating that you don't dispute the facts, but that the facts as stated by the plaintiff do not add up to a legal claim for which the court can award damages.[11]
    • Essentially, you argue that the judge should rule in your favor without even having a trial. It's a bit different from a dismissal, in that if the judge grants your motion, she actually is making a final decision in the case.[12]

Part 2
Drafting Your Motion

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    Look for a form. Many jurisdictions have forms available for certain motions to dismiss, or a blank motions form that you can use.[13]
    • If you can't find an appropriate form, you may be able to find a copy of a similar motion that was filed in the same court in a previous case that you can use as a guide to make sure you've formatted everything properly.
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    Copy the caption. The caption for your motion will be the same as the caption on the plaintiff's complaint.[14][15]
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    Title your motion. The title generally tells the court what type of document is being filed. Usually you can get away with simply titling it "Motion to Dismiss," but you might also consider adding the reason you're arguing for dismissal.[16]
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    Write the introductory paragraph. 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.[17]
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    Write the body of your motion. The body of your motion will explain why you believe the lawsuit should be dismissed.
    • Generally, you list the facts first, followed by your legal reasons, in numbered paragraphs. Each paragraph includes a single fact or reason. Think about listing facts and reasons as you would in an outline, rather than telling a story in paragraphs.[18]
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    Ask the court to dismiss the lawsuit. The final paragraph of your motion will formally ask the court to dismiss the lawsuit for the reasons stated in the body of your motion.
    • You must decide whether you want the court to dismiss the lawsuit with prejudice or without prejudice. Which you choose may depend to a large extent on why you're asking the court to dismiss the case.
    • If the court dismisses the lawsuit with prejudice, this means the plaintiff can no longer file another lawsuit against you involving the same claim. However, if the court dismisses the lawsuit without prejudice, the plaintiff can file another lawsuit later involving the same issues.[19]
    • Requesting a dismissal without prejudice is more appropriate in situations where everything with the claim itself is legitimate, but the plaintiff has made a mistake – such as filing in the wrong court – that is relatively easy to correct.
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    Format your signature block. Type a statement to the effect that everything in the motion is true and correct to the best of your knowledge, and then leave a blank line or some space for your signature.
    • Before you finalize your motion, check the court's rules to make sure everything is formatted correctly. In most cases, the local rules will include formatting details such as the size or thickness of paper you should use and the color of ink that should be used in court documents.[20]
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    Add a certificate of service. Usually you must include a certificate of service at the end of your motion that tells the court how you will serve your motion on the other parties to the case.[21]
    • 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.[22]
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    Draft any other forms required by the court. Call the clerk and find out if you need any other forms such as a cover letter, since each court may have its own local rules.[23]
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    Consider drafting your answer. If you haven't drafted an answer to the complaint, you might need to go ahead and have one ready to be filed.
    • If the judge doesn't grant your motion to dismiss, you'll need to draft an answer to the complaint, and you may not have very long to do so.
    • In many jurisdictions, you can raise a lot of the issues you would raise in a motion to dismiss in an answer to the complaint.[24] Review the rules or consult an attorney to strategize about which approach would serve your interests best.

Part 3
Filing Your Motion

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    Sign your motion. Once you're satisfied that your motion says everything that you want it to say, print it out and sign it.
    • In some jurisdictions, you may be required to sign your motion in front of a notary public. The clerk of courts will be able to tell you if this is necessary.
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    Make copies of your motion. After you sign your motion, make at least one copy for your own records and one for the person who sued you – the clerk will keep your original when you file it.[25]
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    File your motion with the clerk of court. Take your original and your copies and file them at the clerk's office.
    • You must pay filing fees for a motion, unless you've already applied for a waiver of fees in the case. Filing fees for a motion usually will be less than $100.[26]
    • If this is the first document you've filed in the case, you also can apply for a waiver of filing fees if you can't afford them. You'll need to fill out a waiver form and provide proof of your financial status.[27]
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    Have the plaintiff served. Once your motion is filed with the court, you must get either the sheriff's department or a private process serving company to serve the plaintiff with a copy of your motion.
    • Use the same method of service that you chose and included in the certificate of service.[28]
    • After service is complete, make sure proof of service is filed with the clerk so the judge knows the plaintiff had notice of your motion.[29]
    • Contact the clerk ahead of time and find out if that court prefers you to mail copies of the motion to the other parties before you file the motion with the court. This procedure can vary among jurisdictions.[30]
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    Wait for an answer. When the plaintiff is served, she will have the opportunity to respond to your motion.
    • If the plaintiff files a response contesting your motion, the court more than likely will schedule a hearing to decide the motion.

Part 4
Attending the Hearing on Your Motion

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    Appear in court when your motion is scheduled to be heard. If the plaintiff opposes your motion to dismiss, the court will schedule a hearing to decide whether to dismiss the lawsuit.
    • If you don't show up for the hearing on your motion, the motion will be dismissed.[31]
    • Make sure you arrive at the correct courtroom on time and prepared to argue your motion to the judge. Organize your papers and have your notes and documents ready.[32]
    • Bring at least one copy of your motion with you to court that you can refer to if needed.[33]
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    Argue your motion. Since you filed the motion, you will present your argument to the judge first.
    • When your name is called, stand and explain why you believe the lawsuit should be dismissed.[34]
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    Listen to the other side's arguments opposing your motion. After you've presented your argument, the plaintiff will have the opportunity to present reasons why her lawsuit should not be dismissed.
    • If the plaintiff doesn't show up for the hearing (or shows up but doesn't object to the motion), the court usually will grant your motion. You should bring a draft of an order granting your motion just in case this happens.[35]
    • If the plaintiff does show up, she'll have a chance to defend her lawsuit. You may have a chance after she's finished to explain why her statements were inaccurate.
    • Don't interrupt the plaintiff while she's speaking, or talk directly to her. If you have something you want to say, ask the judge if you can make your statement after the plaintiff is done speaking.[36]
    • The judge also may have questions for both you and the plaintiff. If the judge asks you questions, don't interrupt him. Wait until he's finished asking the question and then answer it as clearly and concisely as you can. Don't ramble or go off on tangents.[37]
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    Receive a ruling from the judge. After both sides have been heard, the judge will decide whether to dismiss the lawsuit.
    • The judge may make a decision immediately after hearing both sides, or he may take the matter under advisement and make a decision later after reviewing the pleadings again.
    • Typically the clerk's office will send you a copy of the judge's final order. If your motion was denied, that final order may also include an additional notice of a scheduled hearing.[38]

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Categories: Civil Litigation