#Grounds for motion to dismiss pro

If the same ground is raised as an affirmative defense, the court may motu proprio dismiss the case. 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. A Practice Note outlining the key issues to consider when making a motion to dismiss in New York State Supreme Court under Civil Practice Law and Rules (CPLR) 3211. Any motion or response to a motion supported by facts not in the record must be supported by affidavit. Any document the moving party wishes the court to consider must be attached. VOLUNTARY APPEARANCEĪ motion to dismiss is a prohibited motion if not based on the three grounds mentioned above. A written motion or response to a motion must state with particularity the grounds for the motion and the authorities in support of each ground. 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. 9-11-4(e)(7), in suits involving sums greater than $200, a summons must be delivered to 'defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.' However, Plaintiff merely left the summons on the porch, without speaking to anyone residing there.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. Accordingly, you would type something like this, “According to O.C.G.A. There should be a paragraph telling what the plaintiff was required to do by law (for example, methods of proper service) and a separate paragraph telling what the plaintiff actually did (for example, left the summons with the neighbor).

Next, set out the facts that allow the court to grant you your motion in numbered paragraphs.

For example, you can state, “Defendant asks that the complaint be dismissed according to O.C.G.A. Also state the legal rule that allows lawsuits to be dismissed.

Next, request relief: you want the lawsuit dismissed.

#Grounds for motion to dismiss pro

Begin the body by stating, “Now comes Defendant,, represented pro se, to file this Motion to Dismiss in the above-captioned action.” The opening paragraph should identify you as the Defendant and state whether you are represented by an attorney or making this motion pro se.The body will have three parts: the opening paragraph, the relief requested, and then the facts. In the body, you argue why the complaint should be dismissed.