DiCindio Law LLC | August 30, 2019 | Personal Injury
What Is a Motion to Dismiss?
In a personal injury case, either party may file a motion asking the court to dismiss the case. In general, the party that most often files a motion to dismiss is the defendant to the lawsuit.
Commonly, defendants will file motions to dismiss in the early stages of a case. Plaintiffs may file a motion to dismiss when they have reached a settlement, when there is a procedural defect, or when they want to voluntarily withdraw their claims.
If you have filed a personal injury claim, the defendant may file a motion to dismiss called a motion for summary judgment. At DiCindio Law, we can explain how these types of motions are handled so that you can understand what to expect.
Applicable rules of procedure
Under USCS Fed Rules Civ. Proc. R. 41, a plaintiff in a federal case is allowed to voluntarily dismiss his or her own case. To do this, a plaintiff can file a notice of dismissal with the court before the defendant has filed his or her response.
Alternatively, a plaintiff can file a stipulation of the dismissal that is signed by all of the parties that have appeared in the case. Unless it is included in the stipulation, the dismissal will be without prejudice, which means that the plaintiff could refile the claim at a later date.
A defendant may raise preliminary objections to a complaint by filing a motion to dismiss in which one of the defenses that are found in USCS Fed Rules Civ. Proc. R. 12(b) applies.
These defenses include the following:
- No personal jurisdiction
- No subject-matter jurisdiction
- Insufficient service of process
- Insufficient process
- Improper venue
- The plaintiff failed to state a claim for which relief can be granted
- The plaintiff failed to join an indispensable party
It is common for defendants to file motions to dismiss for the plaintiff’s failure to state a claim. When this type of motion to dismiss is filed, the defendant claims that even if everything that the plaintiff has alleged is true, it does not amount to something that supports the legal grounds for a claim for which relief can be granted.
In personal injury cases that are filed in the Court of Common Pleas, defendants can file motions to dismiss based on preliminary objections under 231 Pa. Code R. 1028.
Under this rule, the preliminary objections that can be raised are limited to the following defenses:
- Lack of jurisdiction over the subject matter or over the person
- Improper venue
- Improper service
- Failure of the pleading to conform to the law or the inclusion of impertinent or scandalous material
- Insufficient specificity
- Nonjoinder of an essential party or a lack of capacity to sue
- Agreement for an alternative dispute resolution procedure or the pendency of a prior action
Similar to federal court, a plaintiff can also file a motion to dismiss a case at any time.
When a motion to dismiss is filed
Defendants normally file motions to dismiss based on the preliminary objections at the start of a lawsuit. These are commonly filed as a demurrer, which is a motion to dismiss based on the legal insufficiency of a claim.
The motion may focus on the allegations that are contained in the complaint together with any exhibits that have been submitted in support of it. A party may file a motion to dismiss when he or she believes the complaint is not legally valid.
One famous example of this occurred when Bill Cosby’s defense lawyers filed a motion to dismiss the charges against him before his retrial because they believed that the criminal conduct occurred outside of the limitations period.
The judge ruled against the motion because the date of the assault was a matter to be decided at the trial and not at the time of the motion.
Understanding the grounds for filing a motion to dismiss
The grounds for a motion to dismiss are claims of legal deficiencies. Here is a brief description of each of the previously listed grounds. A motion to dismiss for insufficient or improper service of process claims that the complaint and summons were not properly served.
A motion to dismiss based on the expiration of the statute of limitations is filed when a complaint is filed outside of the limitations period. A motion to dismiss based on a lack of subject matter jurisdiction may be filed when a court does not have the jurisdiction to hear a particular type of case.
A similar motion to dismiss for a lack of personal jurisdiction may be filed when the court does not have personal or in personam jurisdiction over the defendant. For a Pennsylvania court to have personal jurisdiction over a party, the party must be a resident of the jurisdiction or must have a sufficient number of contacts with it.
Even in cases in which a court may have personal jurisdiction, it might not be the proper venue. This can form the basis for a motion to dismiss based on an improper venue.
There are a number of different requirements that a complaint must follow when it is filed. The court may grant a motion to dismiss for the plaintiff’s failure to state a claim when the complaint does not allege all of the required elements of a legal claim or if it does not allege an injury that is measurable.
Motion for summary judgment
Another type of motion that may be filed is called a motion for summary judgment. This type of motion may be filed by any party, but it is commonly filed by defendants.
Summary judgment motions are filed after the pleadings are closed. Under 231 Pa. Code R. 1035.2, this motion may be filed when there is no triable issue of material fact for a specific element.
It might also be filed after discovery as been completed when the plaintiff has failed to produce any evidence of an essential fact.
How a motion to dismiss is filed
Defendants normally file motions to dismiss based on preliminary objections after the complaint has been filed but before they have responded to it with their answers.
If the court denies a motion to dismiss based on preliminary objections, the defendant will still be required to file an answer within a specific time period. If the reasons for the dismissal are not included in the first filing, they will be considered to be waived.
Like other pleadings and motions, a motion to dismiss has to be filed with the court, and the other party must be properly served. If you are a plaintiff and you receive a motion to dismiss based on preliminary objections, you will be given a chance to respond to it.
The court will review the competing motions and will make a ruling at a hearing.
How courts rule on motions to dismiss and motions for summary judgment
In general, judges view the facts and allegations as true and view them in a light that is most favorable to the plaintiffs. This makes it hard for defendants to win motions to dismiss or summary judgment motions.
If a court rules in favor of the defendant on a motion to dismiss, the case may be dismissed with or without prejudice. If the court dismisses it with prejudice, the plaintiff will not be allowed to refile the case.
If the court grants a defendant’s motion for summary judgment, the plaintiff can file an appeal of the decision. If the Court of Appeals reverses the ruling, the case will be returned to the Court of Common Pleas for further proceedings.
The court is allowed to issue a sua sponte dismissal on its own without either party asking it to do so. The court can dismiss a case on its own when there are grounds to dismiss the case.
For example, if the parties did not raise an objection to the venue at the time the case was filed, the court can still dismiss it if the venue is improper.
Why getting help from an experienced personal injury attorney is important
In Pennsylvania, you are allowed to file a personal injury lawsuit on your own without the help of an attorney. However, it is a better idea for you to seek help from an experienced lawyer instead of filing a lawsuit on your own.
People who file lawsuits on their own are called pro se plaintiffs. Even if you do not have a legal background, you will be expected to know and to follow the same procedural rules as attorneys do.
You will also need to understand the different types of pleadings, the various filing deadlines, and how to properly state a legal claim. If you file a legally insufficient complaint, you run the risk of the case being dismissed.
An attorney can review what happened in your case and explain whether or not you have a winnable claim. If legal grounds do not exist, an attorney will explain that to you.
If an attorney agrees to accept representation, he or she can draft the complaint for you in a manner that complies with the legal requirements and to make certain that it is properly served on the defendant.
A lawyer may be better able to identify all of the potential defendants who should be named in the case as well as all of the parties that are indispensable.
Getting help from an experienced personal injury litigator can help you to avoid making potentially costly errors. It can also help you to make certain that you meet all of the required deadlines and follow the rules.
An attorney can also help to preserve your rights by making timely objections so that the record will be preserved if you need to file an appeal at a later date.
Contact the DiCindio Law office for help
If you have been injured because of the actions or omissions of another person or entity. you may have legal rights to recover compensation by filing a personal injury lawsuit against those who are responsible.
However, it is important for you to make certain that your pleadings are drafted correctly and that they present valid legal grounds to state a claim for which relief can be granted under the law.
Michael DiCindio is an experienced litigator, former prosecutor, personal injury lawyer, and criminal defense attorney who has a deep understanding of the law and the rules of procedure.
To learn more about your potential claim, contact DiCindio Law today by calling us at (610) 430-3535 to schedule a free consultation.
***This blog article is made available by the law firm publisher for educational purposes and to provide general information, not to provide specific legal advice. By reading, you understand that there is no attorney client relationship between you and the publisher. The above listed information does not include the entire crimes code, annotations, amendments or any recent changes that may be relevant. The information provided is for informational purposes only and may not reflect the most current legal developments. These materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. Please contact DiCindio Law, LLC for a consultation and to discuss what law is relevant to your case. ***