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Monday, July 15, 2013
What is a Motion to Dismiss?
A motion to dismiss is a procedural document used by attorneys to request a dismissal of the case. Typically, a motion to dismiss is filed after the plaintiff serves the complaint and in lieu of an answer. The most common use of a motion to dismiss is in connection with the failure of the plaintiff to state a cognizable cause of action against the defendant.
A motion to dismiss is different from a motion for summary judgment. A motion for summary judgment essentially argues that there are no questions of fact that need to be submitted to a jury and therefore the judge can decide the issues purely as questions of law. Summary judgment motions rely on a significant number of exhibits and evidence.
Conversely, a motion to dismiss typically argues that the pleadings are deficient on their face. They often contain few, if any, exhibits. Unlike a motion for summary judgment, the court on a motion to dismiss, takes the allegations in the complaint as true and only looks to determine whether or not the cause of action can be maintained as pled.
A motion to dismiss is a valuable weapon in the litigator's arsenal. If a motion to dismiss is granted, the defendant can save a significant amount of money on attorney's fees and of course, in connection with a settlement or judgment.