![]() ![]() The only real loss is the time and expense of the motion.īut if the plaintiff loses, her options depend on the grounds for the dismissal. If a defendant loses a motion to dismiss, she files an answer and proceeds with the case as if she had never filed the motion to dismiss at all. But often, like in New Jersey State court, a court may insist on discovery proceeding, even when a motion to dismiss is pending. This gives a party an additional reason to move to dismiss: it presents the chance to delay or even avoid discovery. Some cases in some courts wait until a motion to dismiss is decided to permit discovery. Ultimately, after the court receives written submissions from both sides and, if it wants, hears oral argument, it decides whether to dismiss the case or let it proceed in court. If the basis for the motion is that the defendant claims she is not subject to jurisdiction in the court, the defendant is still usually allowed to have her counsel litigate the motion in court without accepting the court’s jurisdiction. If a defendant does submit evidence, it may be a contract that is relevant to the claims or a release that establishes that the plaintiff has already given up her claim. The defendant may submit evidence with her motion, but the grounds for them to do so are usually limited. And some judges require the parties to file letters with the court first, explaining what they intend to say in their motion to dismiss and opposition. They usually must do so within a few weeks of receiving the complaint, although it is common for the plaintiff and defendant to agree on a more lenient schedule. The rules usually require the defendant to file a legal brief with the court, explaining why the complaint should be dismissed. Often, motions to dismiss proceed like a regular motion. In New York State Courts, they are governed by CPLR 3211. In federal court, these motions are governed by Rule 12(b). How a Motion to Dismiss Worksĭifferent courts have different rules for motions to dismiss. Similarly, a plaintiff who wins a motion to dismiss may think she has won the case, but really the judge has just decided that the court will hear the case and that the complaint properly alleges claims, but not that the plaintiff has met her burden in proving the case. ![]() (If the motion to dismiss fails or the defendant chooses not to file one, the denial of allegations usually comes in the answer.). ![]() This can be very confusing for non-lawyers because a defendant who disputes the allegations may wonder why the motion to dismiss focuses on technical issues in the allegations instead of a broad denial of the allegations. In fact, when deciding a motion to dismiss, courts usually assume that the allegations in the complaint are true. The third is that the claims in the complaint are subject to an affirmative defense like the statute of limitations.Īnd the fourth reason is that the plaintiff has already waived the right to sue by signing a release or has already litigated the claims at issue.īecause these grounds for a motion to dismiss can be technical, motions to dismiss do not usually address whether the allegations in the lawsuit are true. The second reason is that the complaint does not contain the necessary allegations to support a claim. The first reason is that the court cannot hear the claim, either because the defendant is not subject to jurisdiction in the court or because the claim belongs in a different kind of court. When a defendant moves to dismiss, she asks the court to dismiss the case (usually in its entirety, but sometimes just in part) generally for one of four reasons:
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