After the defendant has filed their answer to the complaint, the plaintiff and the defendant can come to an agreement and file a motion with the court to dismiss the case. A plaintiff can file a motion to voluntarily dismiss the case before the defendant has filed their answer. It is not true that only a defendant can file a motion to dismiss. If the plaintiff’s complaint does not include an accusation that the defendant caused the harm to the plaintiff, the defendant might file a motion to dismiss based on the plaintiff’s failure to include the element of causation in their claim. In other words, the plaintiff has not alleged a valid cause of action or has failed to allege all of the elements required for a particular cause of action.įor example, in a personal injury case claiming the defendant was negligent, the plaintiff must allege all of the elements of negligence. The defendant might also file a motion to dismiss because the plaintiff failed to state a claim for which relief can be granted. The plaintiff failed to name a necessary party in the complaint, or named the wrong party.The complaint was not served on the defendant properly.The venue, or location where the lawsuit was filed, is not proper.The court does not have jurisdiction over the parties or the subject matter of the case.The statute of limitations has expired.Some reasons a party might file a motion to dismiss include: What Are Some Reasons Why a Motion to Dismiss Can Be Filed?Ī motion to dismiss is often filed based on procedural reasons, rather than the merits of the claim. It is important to check the rules for civil procedure in the jurisdiction where the lawsuit was filed to know how long you have to file a motion to dismiss after being served with a complaint.Ī motion to dismiss can ask the court to throw out all or some of the claims contained in the complaint. If the defendant answers the complaint they have waived their right to file a motion to dismiss based on the allegations in the complaint. Often a motion to dismiss is alleging that the claim should not proceed because of an issue unrelated to the facts. They are usually filed by defendants early on in the lawsuit, before they have filed an answer.
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