You have to respond to the complaint you file in the lawsuit.A motion to dismiss can be filed by the defendants if they point out a flaw in your complaint.If you want to oppose dismissal, you need to research and draft a motion of opposition.
Step 1: Why does the defendant want to be dismissed?
You should get a copy of the motion to dismiss.You should read through the document to see why the person wants to be dismissed.You didn't serve the complaint properly is one of the reasons a case might be dismissed.You did not state a valid legal claim in your complaint.You could have sued a neighbor for painting their house ugly.Your state probably won't allow you to file a lawsuit for this reason.There is a required element of a claim.If you want to file a lawsuit for negligent conduct, you need to include at least four elements: (1) the defendants owed you a duty of reasonable care, (2) they failed to do so, and (3) they caused your injuries.If you forgot to state the third element, your complaint is not valid.The court does not have power over the defendants because they don't have enough contacts with the state where the case was filed.The venue is not right.The case was filed in a county or district that the defendants have insufficient contacts with.
Step 2: Your counterarguments should be developed.
You should think about what you want to argue before drafting your motion.The counterarguments you can make are limited.You will simply disagree with the claims of the other party.You can argue that you did serve notice properly.You can find your proof of service.You have made a valid legal claim.Make sure you have everything you need for the cause of action in your complaint.The court has the power to act.You need to point out the minimum contacts the defendants have with the state where you brought the lawsuit.There is a proper venue.The venue is appropriate if the defendants do business there or are a resident.
Step 3: Talk to the person who made the service.
You should find a Proof of Service form if the defendants argue that service was improper.Talk to the person who made the service.The person may have to testify at the hearing.If you need their attendance, tell the server when the court hearing is.
Step 4: Do you know the law?
To develop your counterarguments, you need to do some research.The defendants might argue that they can't be sued in your state because they only have a business office in the state.You need to find out if the amount of contact is enough for jurisdiction.You can get a copy of the opinion from the court.You can find court opinions at your nearest law library.You can find opinions on the internet.Click on the case law and type in the citations.322 2Fd.260.Read the cases to make sure they are summarized correctly.There are cases that support your position.You can find it on the internet.Select the courts you want to research and then create search strings.The minimum contacts business office is a search string.
Step 5: If necessary, meet with an attorney.
You are trying to figure out how to respond to the motion to dismiss.Schedule an appointment with an attorney if you need help or have legal questions.Only a qualified attorney can offer tailored advice.If you want to get a referral, contact your local or state bar association.Call the attorney and ask to set up a meeting after you have a referral.Please brief your problem and ask for the attorney's fee.
Step 6: You should get your local rules.
Each judge has their own rules for their court.These rules are often used to explain what goes into a motion.You have to follow the local rules.You can find them on the court website or by contacting the judge's chambers and asking for a copy.When you get the local rules, read them closely.
Step 7: You can format your document.
Place your caption in the beginning.The names of the parties, the case number, and the judge are all contained in the caption.You can find this information on the motion to dismiss.Information about formatting should be included in your local rules.In many state courts, you have to print your motion on pleading paper, which is numbered down the left-hand margin.You should choose between Times New Roman or Arial.It is important to title your document.You can refer to your motion as thePlaintiff's opposition to the motion to dismiss.
Step 8: An introduction should be inserted.
The first paragraph can be used to explain why you are against the motion to dismiss.The rule of civil procedure regarding complaints should be mentioned.Rule 8 is used in federal court.The introduction should read: "Plaintiff hereby submits its opposition to the motion to dismiss the complaint."The Federal Rule of Civil Procedure 8(a) requires that a complaint meet certain standards.This Court has personal jurisdiction over the Defendant, and the complaint sufficiently alleges harm.The motion should be denied.
Step 9: Make an argument.
The reason the case is being dismissed will affect your argument.Refer to your complaint and point out where the required information appears if the defendants think you haven't alleged a proper cause of action.The heading "Argument" should be used to set off this portion of the motion.Paragraphs 20 through 23, as well as paragraph 33 and 36, should be included in the complaint if the court doesn't have jurisdiction.The Supreme Court has held that a court has personal jurisdiction when there is enough contact with the forum state.The case is International Shoe Co. v. Washington.It is sufficient for the court to maintain jurisdiction because the Defendant maintains an office in this state where he performs regular business.
Step 10: Add a conclusion.
There is a brief conclusion after the argument.You can request that the court deny the motion to dismiss.You could write "For the foregoing reasons and all the others discussed in the Complaint, the Motion to dismiss should be denied."
Step 11: Attach the certificate of service.
You have to send a copy of your motion to the other party.You need a certificate of service to let the court know that you sent a copy of the motion.A basic certificate of service would say that a copy of the document was delivered to the lawyer.If you use the CM/ECF system to file in federal court, your certificate should read: "I hereby certify that I will electronically file the foregoing with the Clerk of Court using this system, which will then send a notification of such filing to the following."
Step 12: Make affidavits.
You should support your motion with an affidavit.An affidavit is a statement made in support of a motion.You might need to point out that the defendant has a summer home in your county and that he or she spends time there.You can use this affidavit to support your argument that the venue is proper.For more information on how to prepare this document, see Write an Affidavit.
Step 13: The motion should be filed.
You should make several copies of the motion once you have completed it.The original can be filed with the court clerk.You can file electronically if you are in federal court.
Step 14: Go back and read all of the motions.
The judge might ask you questions about the motion to dismiss.You have to fully understand the issues in dispute.Go back and read all of the motions.The defendants might have filed a reply after you filed your opposition.You need to read three motions if that is the case.Go back and look at your research.You should reread any case you rely on.
Step 15: There is a hearing.
If you have never argued before, you should watch the judge run the motions hearing.Contact the court clerk if you want to know when the judge is holding hearings on the motions.The parties should be paying attention to where they sit and stand.The judge gives each side a certain amount of time.If the judge only wants to hear a few minutes of argument, then you should keep your own remarks short.Listen to the questions the judge asks.If the judge asks the same questions of you, try to come up with answers.
Step 16: Make your case.
The person is going to speak first.Quietly listen to his or her arguments.There should be no arguments that haven't been made in the motion to dismiss.If they try to sneak in new arguments, write them down and draw them to the judge's attention when it is your time to speak.When the judge asks a question, be sure to listen quietly.Don't guess if you do not know the answer to the question.Be honest with the judge.
Step 17: If necessary, file the lawsuit again.
The person might win the motion to dismiss.If the lawsuit was dismissed without prejudice, you can probably file a new lawsuit.You have three years to file a lawsuit.The clock runs from the date of the crime.If the statute of limitations hasn't expired, you can refile your lawsuit.Find what you forgot to say in your original complaint.The judge might dismiss the lawsuit if you didn't state a cause of action.If you want to include the missing allegations, type up a new complaint.The correct court to file the lawsuit is found here.If the judge tosses the lawsuit for lack of jurisdiction, you need to find a new court to file it in.You may have to file the lawsuit in the county where the person lives.Meet a lawyer.If the case is dismissed, you don't know what to do.Schedule a meeting with a lawyer.As the statute of limitations clock continues to tick, don't delay.