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Copy of 3.5: Motions to Dismiss

Goals

  • Learn more about motions and motions to dismiss

Instructions

  1. Read about motions to dismiss
  2. Watch the video on motions and answer the questions in the video
  3. Complete the exercise

I. Motions to Dismiss

You have already learned that in response to a plaintiff’s Complaint, a defendant may file an Answer. When answering the Complaint, the defendant either admits or denies each of plaintiff’s allegations.

But the defendant can also file a motion with the court – – move the court – – to dismiss all or part of the Complaint,

A motion is a request to a judge to rule on a certain matter. And in a motion to dismiss, the defendant asks the judge to throw out all or part of plaintiff’s Complaint. If the court grants a motion to dismiss, the plaintiff’s case will end.

Some grounds to file a motion to dismiss include:

  1. A motion to dismiss for lack of subject matter jurisdiction. The court lacks the power to hear this type of case.
  2. A motion to dismiss for lack of personal jurisdiction. The court lacks power over the defendant.
  3. A motion to dismiss for failure to state a claim. The complaint is defective or meritless.

There are three main documents usually filed in connection with a motion to dismiss:

  1. The moving memorandum of law (or moving brief) in which defendant argues why the court should dismiss the Complaint.
  2. The opposing memorandum of law (or opposition brief) in which plaintiff argues why the court should deny the motion to dismiss.
  3. The memorandum of law in reply (or reply brief) in which defendant tries to rebut plaintiff’s opposition papers.

If the Court grants the motion, it will dismiss the Complaint either without prejudice to refiling the Complaint or with prejudice.

To dismiss a complaint without prejudice means the plaintiff will be allowed to fix the Complaint and refile it. The plaintiff gets another chance.

To dismiss a complaint with prejudice means the plaintiff’s case is over unless the plaintiff successfully appeals.

II. Watch the Video (4:27)

Watch this four-minute twenty-seven second video on stages of a motion and answer the two questions at the end of the video.

III. Exercise