Can a Plaintiff File a Motion To Dismiss?

Yes, a plaintiff can file a motion to dismiss.

In the article that follows, we’ll explain more about what a motion to dismiss is, and how you might see it filed in a civil case.

Can a Plaintiff File a Motion To Dismiss? (EXPLAINED)


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What Is A Motion To Dismiss?

A motion to dismiss is a procedural step in a case pending in a court (municipal, county, state, federal, etc).

Motions to dismiss are creatures of rules that are unique to each level of court (and jurisdiction).

For example, the rules for a motion to dismiss in federal court will be different from those in a California state court.

Look to the applicable “rules of civil procedure” for the reasons why a defendant may raise initial objections to the plaintiff’s complaint, for example.

The parties to a civil case would be well advised to be very familiar with the rules of civil procedure in the particular court/jurisdiction the case is in, as some of the objections that can be raised by motion to dismissed are considered waived if they are not filed in a timely manner.

Make sure to also check the supplemental local rules of the court (or even of the specific judge) for anything else special that needs to be filed along with a motion to dismiss.

Some common grounds for an early motion to dismiss include: lack of personal jurisdiction, lack of subject matter jurisdiction, bad service, wrong venue, failure to state a claim, claim has been filed too late, and the case failed to bring all the necessary parties to the case.

How Is A Motion To Dismiss Filed?

While the actual procedure varies from court to court (like some courts have platforms for electronic filing, while others require the delivery of paper copies), it generally looks something like this:

  • The party wishing to file a motion to dismiss prepares the motion. This usually looks like a written motion, containing the request of the party, the relevant legal authority that allows the motion to be filed (statutes and case law), and a statement that the party filing actually conferred with the opposing party before filing the motion.
  • If the party filing the motion hasn’t attempted to confer with the opposing party, he’ll do that (a conferral is required in many courts to help resolve matters without the assistance of the judge).
  • The party files the paperwork, either in person, by mail, by email, by fax, or by uploading it to the filing system in the court, whichever is required.
  • The party makes sure the opposing counsel is provided a copy in whatever manner is required (physical copy mailed, by courier, via email, by fax, or via electronic filing system)

When Should A Motion To Dismiss Be Filed?

The best time to file a motion to dismiss is when it makes sense in your case, and when there is authority and cause to file it.

It is very common in civil cases for the defendant’s attorneys to file a motion to dismiss some or all of the plaintiff’s claims before filing the defendant’s Answer/Response.

Plaintiffs who are not familiar with civil cases may feel shock, outrage, or anxiety upon receiving these initial motions.

But these motions are a part of the process and happen in just about every case.

Why Would a Plaintiff File A Motion To Dismiss?

There are lots of reasons.

First, a plaintiff has the same rights as the defendant to file procedural motions to dismiss after being served with a claim but before filing an answer/response.

Remember, after being served with a complaint and claims against him, the defendant has the right (generally) to respond and assert his own counterclaims against the plaintiff.

Second, the plaintiff can decide to voluntarily dismiss his claims at just about any point during the case, sometimes even without the approval and order of the court.

Third, it is pretty common for civil cases to end with a negotiated settlement somewhere along the way, and it is usually the plaintiff who files the motion to dismiss (since he can usually do so without the approval of the court).

What Happens To The Defendant’s Counterclaims If The Plaintiff Files a Motion To Dismiss?

If the plaintiff files a motion to dismiss and the claims are dismissed, in general, the defendant’s claims are not dismissed.

Thus, if a plaintiff files and serves a complaint against a defendant, who then files counterclaims, a plaintiff who just wants to end everything cannot wipe the slate clean by filing a motion to dismiss the case.

The defendant would have to be in agreement with a dismissal of the entire case in order to effectuate that result.

Wrap Up

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