They have a chance to respond, and the court will review both and give their decision in a hearing. The party will file their motion to dismiss with the court and serve a copy to the other party. In most cases, the defendant will file a motion to dismiss prior to answering the complaint, especially if it is based on one of the above reasons. Your lawyer will be able to help you file a motion to dismiss or advise you of other, rarer reasons for filing a motion to dismiss.Įach state and legal jurisdiction will have a different process for filing a motion to dismiss. Often, the case will be moved to the correct venue rather than being dismissed completely.

Improper venue – You can also file a motion to dismiss if the case is filed in the right state jurisdiction but not the proper local jurisdiction.Therefore, if you are sued for something that happened while you were on holiday in California, but you live in New York, the lawsuit must be filed in New York, not California. In order to be sued, you need to have some sort of connection to the legal jurisdiction to be sued in that state. Lack of personal jurisdiction – This type of motion to dismiss alleges that the court does not have personal jurisdiction over you.If it is a particular topic, the case may need to be heard by a specialist court like family court or probate court. Attorney Steve, California litigation, arbitration and mediation lawyers explains the difference between the federal court motion to dismiss and the demurrer. Lack of subject matter jurisdiction – This simply means that the court does not have jurisdiction over the case.This motion to dismiss rarely results in a dismissal the courts generally just tell the plaintiff to name all responsible parties in the lawsuit. A lawsuit should include all of the parties involved. Failure to join a necessary party – If the plaintiff sues only some of the people involved or does not sue the right people, then the defendant can file a motion to dismiss.This is because the lawsuit can only seek damages for a defendant that failed in their duty to the plaintiff. Failure to state a claim upon which relief may be granted – If the claim is based upon perceived negligence but is not based upon a legal duty the defendant owed the plaintiff, then there, the defendant can file a motion to dismiss.Your lawyer can use that information to decide if it is worth filing a motion to dismiss.

Talk to your lawyer about the way you were served and if there was anything odd about it.

Insufficient service of process – You can file a motion to dismiss if you were not properly served with the complaint or summons or if there is a technical defect in the summons.

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California motion to dismiss