Pretrial Motions Motion to Dismiss A MOTION TO DISMISS can be filed early on, even before discovery. A defendant may move to dismiss if he/she believes the complaint presented by the plaintiff is somehow unsound. The court analyzes the facts set forth in the complaint in the light most favorable to the plaintiff who filed the complaint. Numerous reasons exist why a complaint may be deficient. These include: Lack of Subject Matter Jurisdiction—the court in which the complaint was filed does not have “jurisdiction” (power to rule) over the SUBJECT of the lawsuit; some complaints must be filed in federal court or in specific state court divisions Lack of Personal Jurisdiction—the court in which the complaint was filed does not have jurisdiction over the DEFENDANT; personal jurisdiction requires that the defendant have “minimum contacts” with the place where the lawsuit is filed, a standard which courts interpret in different ways, but which generally means the defendant must reside or have a business in the jurisdiction or the occurrence which is the subject of the lawsuit must have occurred in the jurisdiction Improper Venue—the location of the court is not one in which the defendant can be sued, even if the court would otherwise have personal jurisdiction over him/her; improper venue often results in a transfer of venue to an appropriate court rather than in dismissal of the case Insufficiency of Process—the summons itself or the method of service was in some way defective, as when a summons and complaint are delivered to an unacceptable location (acceptable locations in most jurisdictions are a person’s home or business) or not properly mailed or published in a newspaper; different jurisdictions have different service of process requirements, and the clerk of the court should be able to inform you what constitutes adequate service Failure to State a Claim Upon Which Relief May Be Granted—plaintiff has not clearly set out any facts that constitute a legal claim for relief; the defendant must have, under the law, a responsibility of some sort to the plaintiff which he/she allegedly violated—if the defendant had no such obligation to begin with, he/she cannot be held responsible for plaintiff’s damages Motion for Summary Judgment SUMMARY JUDGMENT motions are popular because they save time and expense to the parties and to the court. Such a motion is filed when the key facts of the case are not in dispute; that is, that the facts are as they are set out in the complaint and do NOT need to be tried to establish their truth. If there are not issues of fact present for a finder of fact to determine and the law on the subject is clear one way or the other then the court will likely enter a summary judgment without the need of a trial. If a summary judgment is granted, there will be no trial. The purpose of a trial is for a fact-finder (judge or jury) to determine which facts are true; there is no reason to go to trial if there is no dispute as to the veracity of the facts. The motion asks the court to consider the facts as presented in the complaint, apply the law to those facts, and decide in favor of the party bringing the motion. If the opposing party disagrees with the facts presented and wants to proceed with trial, the party must provide some evidence to the court showing that there are facts that are in dispute. If the court determines that there are unresolved issues and that a fact-finding trial is necessary, it will not enter judgment, but instead proceed with a trial. Motion for Default Judgment A defendant who is properly served with a complaint must either respond with an answer or file a motion to dismiss. If the defendant does neither within the time frame required by the given court, he/she is considered to be “in default.” Plaintiff can then file a MOTION FOR DEFAULT JUDGMENT, and if the motion is approved, the court will file an ENTRY OF DEFAULT. The court will then send notice to the defendant that he/she is in default and will decide the case for plaintiff. Occasionally, a defendant may have a good excuse for why he/she is in default. A defendant who considers their excuse valid must immediately provide the court with an explanation and ask the court to VACATE (set aside) the entry of default. If the defendant has a strong reason for his/her default and acts promptly, the entry is vacated and the trial proceeds. Courts typically set aside an entry of default “for good cause shown,” which is a broad standard and variously applied at the court’s discretion; specific categories of “good cause” include mistake, inadvertence, surprise, or excusable neglect. ---------------------------------------------------------------------------------- If you are a business owner get listed at Best Legal Site, part of Localwin Network.