When Can a Motion to Dismiss be Filed?

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What's a Motion to Dismiss?

In a personal injury case, a party sometimes has the option of filing a "motion to dismiss." This is a pretrial motion that basically allows the court to "throw the case out," without having to review the facts, and merits of the case.

Thus, filing a motion to dismiss can sometimes be a way of shortening the overall legal process, because the case will be dismissed and the parties won’t have to proceed with a complete trial. This can help the parties save valuable time and money on a case that should not be heard in court. Motions to dismiss are sometimes called by various names depending on the state, such as a "demurrer."

When Can a Motion to Dismiss be Filed?

A motion to dismiss is usually filed at the very begin of the legal process, right after the plaintiff has filed a complaint. Instead of filing an "answer" or response to the plaintiff’s complaint, the defendant may file a motion to dismiss instead. If the defendant chooses to file an answer, they usually forfeit their right to file a motion to dismiss. That is, there may be filing deadlines for motions to dismiss, depending on the jurisdiction. There is usually a certain point in the proceedings when the parties can no longer file certain motions.

What Are Some Reasons Why a Motion to Dismiss Can Be Filed?

There may be various reasons why a motion to dismissed might be filed. A motion to dismiss is often filed for procedural reasons, such as:

Another common reason to dismiss a personal injury lawsuit is for "failure to state a claim." This is a response that states that the plaintiff actually did not state their complaint on a proper basis. An example of this in a personal injury case is where the plaintiff fails to properly state their claim based on negligence. For instance, if they fail to include an element of proof for negligence, such as a breach of duty, then their claim might be subject to a dismissal.

Do I Need a Lawyer for Help With Pretrial Motions?

When dealing with a personal injury case, it is often necessary for the parties to deal with pretrial motions such as a motion to dismiss. These can be very technical and complicated because they rely heavily on state procedural laws. You may need to hire a lawyer if you need assistance in filing a personal injury lawsuit. Your attorney can help inform you of the remedies available to you, and can help you when it comes to filing a motion to dismiss or other similar court document.

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Last Modified: 10-24-2013 11:32 AM PDT

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