How do you respond to a complaint? Luckily, or perhaps unluckily, there are multiple ways. You can choose fear-, or anger-driven responses, like crying or calling the plaintiff and cursing them out. Or, you can do what so many others who cannot afford a lawyer do. Nothing. So, we’re back at square one. How do you […]
You’re the plaintiff in a lawsuit, and you have a return of service in your hands, proof that the defendant has received your complaint. Now, you wait. It’s the defendant’s move. The most likely response is a motion to dismiss for failure to state a claim or cause of action.
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Far too often pro se litigants lose cases where they should win–all because of problems writing a motion. This should never happen, but it does. These tips will give you a better likelihood of succeeding, especially in cases where you have the law, the facts, or both on your side.
A motion to dismiss asks or “moves” a judge to end a case because of deficient claims, improper service of summons, 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. “I didn’t do it” does not satisfy the requirements of a motion to dismiss for the defendant, and a simple “I did it right” might not suffice to keep a complaint afloat. Learn what to look for and address what matters in a motion to dismiss.
The Motion to Dismiss and the Motion for Summary Judgment both present a chance to end your case, but similarities between the two are few. Arguing one when you should be arguing the other could hand you a loss in court. So know your motion and understand the differences between it and a similar motion.
Everybody hates litigation. You just want it to end quickly, especially when you’re the defendant. A good motion to dismiss can make that happen, but the threshold is very high. The typical strategy is to attack the sufficiency of a complaint, to show that a required fact has not been alleged. If you focus solely on what’s contained within the four corners of the complaint, you just might find that one weakness that gets the case dismissed.