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Oppose a Motion to Dismiss

Typically, a defendant responds by filing an answer. However, the defendant can also file a motion to dismiss in this document. The defendant will point out some defect in your complaint and ask the judge to dismiss the action to oppose dismissal. You should research and draft of motion in opposition, then you must file it with the court and potentially argue the motion before a judge.

Developing your arguments identify why the defendant seeks dismissal. You should receive a copy of the defendants motion to dismiss once you receive it, read through the document and look to see why the defendant seeks dismissal generally a defendant seeks to have a case dismissed for the following reasons. You didn’t serve the complaint properly on the defendant. You haven’t stated a valid legal claim in your complaint.

For example, you might have sued a neighbor because they painted their house an ugly color. However, your state probably doesn’t allow you to sue. For this reason, I greater than you forgot to allege a required element of a claim. For example, if you sue someone for negligence, you need to allege four elements in your complaint. One, the defendant owe you a duty of reasonable care. The defendant breached that duty by falling below the standard of care three that breach was the cause of for your injuries.

If you forgot to allege causation the third element, then your complaint is defective. The court doesn’t have power over the defendant jurisdiction because the defendant lacked sufficient minimum contacts with the state where the case has been filed. The venue is improper. This means the defendant has insufficient contacts with the county or district. Where the case was filed, you didn’t serve the complaint properly on the defendant.

You haven’t stated a valid legal claim in your complaint. For example, you might have sued a neighbor because they painted their house an ugly color. However, your state probably doesn’t allow you to sue. For this reason, you forgot to allege a required element of a claim. For example, if you sue someone for negligence, you need to allege four elements in your complaint. 1. The defendant owe view and duty of reasonable care.

The defendant breached that duty by falling below the standard of care 3, that breach was the cause of for your injuries. If you forgot to allege causation the third element, then your complaint is defective. The court doesn’t have power over the defendant jurisdiction because the defendant lacked sufficient minimum contacts with the state where the case has been filed. The venue is improper. This means the defendant has insufficient contacts with the county or district where the case was filed.

Develop your counter arguments before sitting down to draft your motion in opposition. You should think about what you want to argue. You are limited in the counter arguments you can make. Basically you will simply disagree with whatever the defendant claims. For example, you can argue, you did serve notice on the defendant, properly find your proof of service or affidavit of service. You have stated a valid legal claim, go through your complaint and make sure you alleged all necessary elements for the cause of action.

You have brought the court has jurisdiction over the defendant. You will need to point out the minimum contacts the defendant has with the state where you brought the lawsuit the venue is proper venue is proper where the defendant is business there or is a resident talk to whoever made service if the defendant argues. That service was improper, then you should find your proof of service form. Also talk to the person who made service.

This person may need to testify at the hearing on the motion to dismiss tell the server when the court hearing is, if you need their attendance research, the law to help develop your counter-argument, you need to do some research, for example, the defendant might claim he can’t Be sued in your state because he only has a business office in the state but doesn’t live there. You will need to find out whether or not that amount of contact is sufficient.

Minimum contacts for jurisdiction get a copy of any court opinion cited by the defendant. You can find court opinions at your nearest law library, which may be at your courthouse or at a law school. You can also find court opinions on Google Scholar, click case law and then type in the case. Citations, eg, 322, 2, F, D, 265. Read the cases to make sure the defendant has summarized them accurately also find cases that support your position.

You can search. Google Scholar select the court, you want to research and then create relevant search strings. For example, minimum contacts business office is a search string meet with an attorney. If necessary, you might feel overwhelmed trying to figure out how to respond to a motion to dismiss if you need help or if you have legal questions. You need answered, then schedule an appointment with an attorney.

Only a qualified attorney can listen to your individual circumstances and offer properly tailored advice. You can get a referral by contacting your local or State Bar Association. Once you have a referral, call up the attorney and ask to set up a meeting, also ask the attorneys fee and briefly describe your problem.


 

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