What's A Motion To Dismiss?

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Seeking Help From A Family Law Attorney

My name is Juliette Meeks and welcome to my blog about family law. A few months ago, I was having some family issues that required me to seek the help of an attorney. I had never needed an attorney before and I was a bit apprehensive at first to schedule a consultation. Once I did, my attorney put my fears to rest very quickly. The attorney outlined my options and answered all of my questions very thoroughly. My legal matter was settled quickly and I am thankful that I decided to seek the help of an attorney. If you need a family attorney to assist you with legal matters, you should schedule a consultation right away. In this blog, you'll learn what to expect during your first visit and all of the important questions you should ask.


What's A Motion To Dismiss?

7 December 2015
 Categories: Law, Blog

Some personal injury lawsuits are won or lost before they ever get to trial. Whether you're suing someone or being sued, you should understand how important a motion to dismiss can be.

What is a motion to dismiss?

Have you ever heard of a case being thrown out of court? What the speaker is usually talking about is a case where the motion to dismiss was successful. A motion to dismiss is a request to the court to make an official ruling that there is no valid reason for the lawsuit. In some states, this motion is called demurrer.

Why would a court allow a motion to dismiss?

When a court considers a motion to dismiss, it does so in a way that favors the plaintiff most. In other words, the court assumes that the facts of the complaint (the basis of the lawsuit) are all true and that everything happened the way that the plaintiff said it did. However, there are times where that still isn't enough to allow a case to move forward in court:

You don't have a legal claim.

This is called a "failure to make a claim upon which relief can be granted" and basically means that there is some necessary element of your case missing. For example, imagine that you suing someone for negligence because they caused an accident and you fell off a ladder. However, you fell into a giant pile of pillows and, other than being shaken up, you were uninjured. If you tried to sue, you would have a problem making your claim, even though the other person was negligent and caused an accident. This is because one of the elements of negligence is injury. Without an injury, you don't have a legal claim.

The papers weren't properly served.

Never underestimate how important the rules of procedure are when it comes to notifying someone about a lawsuit. If you were served with papers about a lawsuit, don't be surprised if your attorney asks about the event in detail. He or she is trying to see if there is a reason to dismiss due to improper service of process. Even small deviations from the proper procedure can be a reason to dismiss. This is taken so seriously because due process gives the defendant in a case the information and time necessary to mount a defense.

The court doesn't have the right to hear the case.

You have to file your claim with the right type of court, in the right place. If you don't, the court doesn't have the legal authority to make a decision on your case. For example, if you're suing somebody over the custody of a child, you would probably have to file in family court, not the regular civil court. You also couldn't do something like file a lawsuit in Ohio over an accident that happened in Florida (unless the defendant somehow had strong ties to Ohio).

For more information, contact firms like Randall A. Wolff & Associates, Ltd.

It's too late to file the claim.

Every state puts a limit on how long you have to bring a certain type of lawsuit against someone. That's so that people don't have to live in fear that they'll be tracked down and sued over something like a car accident that happened twenty years ago. Depending on the state, you may have as little as a year to file your case. There are some circumstances that can cause a judge to allow a case to be filed long after the injury occurred. For example, if you had surgery three years ago for a heart problem and your surgeon left a surgical towel inside your chest, the court would likely say that the timer on the statute of limitations didn't start ticking until the surgeon's error was discovered.

Keep in mind that just because a motion is made, it doesn't necessarily mean that the court will agree. Real life legal issues are often far more complicated and full of twists and turns that you don't see in examples. For more information, talk with an attorney near you.