Before Defending: Motion to Dismiss

If you receive a ticket, notice of offence or lawsuit you have an immediate action you can take that does not engage the action on the facts but on the legitimacy of the clam being made against you.

It’s generally referred to as a motion to dismiss and in principle challenges the right of the claim to be made or pursued and any number of grounds.

Why answer or defend the the action against you if it is improper or lacking enough to stop it dead in it’s tracks before having to answer the facts claim.

This is a post from a USA site on the process and principle. It’s good to know and check you own jurisdiction for the procedures available to you for the process.

ยง 6.5 Motions to Dismiss Generally

(a) Motions to Dismiss: Strategy

Why is discussion of motions to dismiss placed before the section on answering the complaint? The reason is that every complaint must at one point be evaluated to determine whether or not dismissal would be appropriate, even though many such motions fail. If a strong motion to dismiss can be made, it should be seriously considered. This is especially true where the motion is to be based on a fundamental insufficiency in the complaint, such that little factual investigation is required by the defense, and where answering the complaint and preparing affirmative defenses, counterclaims, cross claims or third party complaints would be a substantial undertaking.

There is also a conceptual reason: the idea of a motion to dismiss is that the complaint โ€” or more specifically, the claim โ€” is so lacking in merit that no answer is necessary. Certainly if that is the case, and it seems likely that the judge can be made to agree that dismissal is appropriate, there is no reason to start drafting an answer.

Have you ever used a motion to dismiss?

It’s common sense once you understand it exists and it can stop the case against you.

This process was used to stop the lawsuit against the news organization Washington Post (WP) for their reporting of the “Covington kids” matter. The WP won the dismissal of the case but it may not be over yet because the “Covington” lawyers may appeal the ruling to dismiss and it’s possible it will be overturned. If not, they might also appeal it to the Supreme Court of the US.

As you can see, knowing how the court game works and what your options are is important if you plan on suing someone or are sued. Always evaluate the possibility of motion to dismiss before answering the claim.