GROUNDS FOR MOTION TO DISMISS TRIAL

A question of fact means that there is a real dispute as to what actually took place between the parties. If the motion to dismiss is convincing, you might have to present your own affidavits and documents to prove that the allegations did occur as you have described, or at least there is a question about the facts of the case as to whether or not what you have alleged actually happened.

GROUNDS FOR MOTION TO DISMISS TRIAL

If the defendant makes this motion, it might include affidavits from witnesses or other documents that would be admissible at trial to show his/her side of the story. You might also be able to ask the court to grant you permission (“leave”) to amend your petition so that you can add additional details that might be necessary to strengthen your defense to the motion to dismiss.Īnother possible reason that the other party could move to dismiss your petition is because s/he argues that the events you allege in your petition did not happen at all. So, you should be prepared to argue that your petition is has enough information to support your cause of action. Maybe you did not allege a change of circumstances to modify a custody order or you failed to include enough information about domestic violence when seeking a restraining order.

the issue has resolved and there is no longer an existing controversy (moot).Ī motion to dismiss could be because the petition that you filed is not sufficient to support the relief that you are asking for.

the statute of limitations has passed or.

there is something wrong with the paperwork.

the facts alleged do not support the cause of action.

There are many reasons why a case could be dismissed before trial. Either way, how you respond to a motion to dismiss will depend on the reason why the other party or his/her attorney is making the motion. If the same ground is raised as an affirmative defense, the court may motu proprio dismiss the case.A motion to dismiss might be in writing or it could be made verbally in court.

While a motion to dismiss is a litigious motion (Rule 15, Section 5), the court has discretion not to hold a hearing and proceed to rule on the motion. In case of affirmative defenses, however, raising other grounds (in addition to lack of jurisdiction over the person of the defendant) does not amount to a voluntary appearance. Incidentally, in case of a motion to dismiss based on improper service of summons, the court may deputize the defendant’s counsel to serve the summons. 20 of the 1997 Rules) that the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. This is a reversal of the previous rule (Rule 14, Sec. Rule 14 of the 2019 Amendments provides that the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall be deemed a voluntary appearance of the defendant (Sec. However, the 2019 Amendments recognizes one more ground - lack of jurisdiction over the person of the defendant (Rule 14, Sec. This may give rise to the impression that only three grounds may be used to support a motion to dismiss. VOLUNTARY APPEARANCEĪ motion to dismiss is a prohibited motion if not based on the three grounds mentioned above. The issuance of an order granting a motion to dismiss or affirmative defenses, based on the three grounds enumerated above, bars the refiling of the same action or claim.Įxcept these three grounds, defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived (Rule 9, Sec.

3) That the cause of action is barred by a prior judgment or by the statute of.

2) That there is another action pending between the same parties for the same.1) That the court has no jurisdiction over the subject matter of the claim.12), except when it is filed on the basis of the following grounds: The most logical implication of the deletion is this - the filing of a motion to dismiss does NOT toll the running of the 30-day period to file an Answer (the 2019 Amendments also extended the reglementary period from 15 days to 30 calendar days).Ī motion to dismiss is a prohibited motion (Rule 15, Sec. These provisions are not found in the 2019 Amendments.

Under the old 1997 Rules, a motion to dismiss may be filed before the filing of the Answer and, if the motion is denied, the movant still has at least 5 days within which to file an Answer. The 2019 Amendments does not expressly provide when a motion to dismiss may be filed, as well as the effect of the filing/denial of the motion.

Grounds for motion to dismiss