Motions to dismiss are motions brought by defendants at the commencement of an action to either defeat an entire complaint or a claim within a complaint. MtD may also be brought as a counterclaim or a cross-claim, both of which are very much the same as a complaint. And as i said they are brought at the commencement of an action before one answers the complaint./ i wanna be clear you can answer the complaint as to those causes of action, you’re not seeking to dismiss by motion and bring the motion to dismiss as to those specific claims you seek to dismiss or you’re simply just printing the MtD it’s an option. So in a complaint you tend to have multiple COAs, let’s say you have BOC, fraud conversion and negligence. You might say well on the fraud claim i want to bring the MtD so you bring it against that claim seeking the course to dismiss that claim and the remaining claims go forward at which time you file a MtD. you can either answer those claims or you can wait until the court hears the MtD. be careful, look at local rules to make sure that the courts would not take issues with breaking it apart in that fashion. There are very difficult motions to win on the simple fact that the court has to assume every fact pled in the comp[laint-or if it’s a cross claim or a counterclaim, is true. So they look at the 4 corners of the complaint and assume every fact pled is true and if every fact is true then if that would support a claim then that claim survives and goes on and the courts are very reluctant to dismiss a case right off the bat it has to be very obvious. Some of the obvious reasons are statute of limitations say you asserted a BOC claim instead. The contract was breached 8 years ago and the statute of limitations is 6 years in the state which you brought the claim, the court could say it’s barred by the statute of limitations that’s how you pled that it was done 8 years ago and the law says 6 that's 2 years past SOL. personal jurisdiction over subject matter. You bring a claim for patent infringement in state court. Federal courts have exclusive jurisdiction over patent climas even though everything you say about the patent could be true and if assumed true would support a claim for PI it cannot be maintained in state court so that wld be dismissed. Jurisdiction amounts, certain states have district courts and superior courts, diff levels of courts and often their breakpoint is 25000 so if you pled that your damages were say are more than 25K and you bring the case to lower court then it can get dismissed because your damages are too high if its below 25K and you pled that it was the court and take it to a higher court the court could dismiss it on those grounds. Lack of standing- as a citizen you cant bring a criminal matter so if you’ve asserted a criminal matter in your complaint the courts could say you don't have standing-only the state can bring a criminal matter and dismiss it. So that's where it’s obvious. The court is supposed to look at what’s only pled in the four corners. Courts at times can look at docs outside the complaint. Normally that's a deed or the contract referenced/attached to in the complaints and they can look at that and if on its face it provides grounds for dismissal of the action and the court can look at it. Let’s say the parties to the contract are george and henry and you’re Ralph bringing the lawsuit the court could go well you're not a party of the contract it says who the parties are. On its face you can’t assert the claim because you're not part of the contract. It would be an example of how the court could look at a contract. When you file the motion it essentially puts a stay on the action meaning no discovery is to go forward until the MTSD is resolved. So if the plaintiff is served with interrogatories,DRs deposition notice admissions those reqs should be put on hold until the court decides whether the case goes forward in total or in part as to what claims it’s granted or not. So the court can grant the MtD if it’s brought on all claims or selective claims or you can bring you MtD to a few claims and not the rest of the claims. Ultimately it can be an effective tool on narrowing the scope of a case which is always helpful in reducing cost and difficulties particularly as a defendant the less claims against you the less to deal with.
