The Defendant’s Response: A Motion to Dismiss

Although there are those who would have you believe otherwise, the law simply does not provide a remedy for every type of grievance that can arise when there are enough people interacting with one another. However, that does not prevent people from starting lawsuits based on the most ludicrous set of facts. The fact is that you can start a lawsuit at anytime for anything, but that does not mean you will win that lawsuit. The first point at which a defendant can challenge the adequacy of a lawsuit is very early in the lawsuit, as soon as the defendant receives the summons and complaint. The defendant brings this challenge by filing a motion to dismiss. However, you don’t see motions to dismiss in anywhere near all lawsuits.

Federal court rules and New York State court rules each contain provisions addressing motions to dismiss. Technically, motions to dismiss may be based only on a limited set of grounds. Three of the most common grounds are improper service, failure to state a cause of action, and failure to comply with the applicable statute of limitations.

A motion to dismiss on the basis of improper service generally does not get a defendant very far. If the lawsuit is brought early in the statute of limitations period, even if a lawsuit were to be dismissed for improper service, the plaintiff would have enough time to simply start a second lawsuit, this time properly serving the summons and complaint. If the lawsuit is brought late in the limitations period, a judge might be reluctant to dismiss a case on technical grounds. In most cases where a defendant moves to dismiss on the basis of improper service, the court just gives the plaintiff an opportunity to serve the summons and complaint properly. All the defendant has done is delay things, and cause the plaintiff and the court inconvenience.

When a motion to dismiss is based on a failure to state a claim, the defendant is simply saying that the claims raised in the complaint are not recognized by the law.  Although a court certainly has the authority to dismiss in response to the defendant’s first motion, the court will usually give the plaintiff an opportunity to correct any inadequacies in the complaint.  If the plaintiff isn’t able to correct these problems, the defendant can move again to dismiss.  The court might given the plaintiff an opportunity to correct problems more than once, but, if the plaintiff cannot correct the problems, the court will eventually dismiss the case “with prejudice.”  When a case is dismissed with prejudice, that means the plaintiff may not bring that same claim again.

What statutes of limitations collectively say is that you can’t sit on your rights forever, and, if you sit on them long enough, you can and will lose them.  Statutes of limitations require plaintiffs to bring their claims within a time limitation set by a statute, that is, a law passed by the U.S. Congress, a state legislature, or a city council or county legislature, and signed into law by the President, a governor, or a mayor or county executive.  Statutes of limitations range anywhere from 120 days to six years, at least in New York State.  It would sound as if statutes of limitations are fairly easy to apply.  They generally are, but there are exceptions.  That is, a defendant may seek to have a complaint dismissed based on the statute of limitations, but a court could decide that the defendant is pointing to the wrong statute of limitations, or, for one reason or another, the statute of limitations should be extended (“tolled”) in this case..

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