Preparing to File for Dismissal
Understand dismissals of a lawsuit. A court may dismiss a case “with prejudice” or “without prejudice.” In the first situation, a plaintiff may not file another suit with the same legal claim when the case is dismissed “with prejudice.” However, where a case is dismissed “without prejudice,” then the plaintiff may bring another suit on that same claim so long as the statute of limitations has not run out. Motions to dismiss may also be “voluntary” or “involuntary.” When the plaintiff dismisses the action, the dismissal is voluntary. However, if a judge dismisses the action, then the dismissal is “involuntary.”
Identify the reasons dismissal “without prejudice” is granted. A court may grant a dismissal without prejudice in a variety of situations. These situations may differ slightly by court and state. Generally, however, you can have a case dismissed “without prejudice” for the following reasons: The case is partially settled. The defendant agrees to pay the plaintiff but has not yet made complete payment. The plaintiff has been unable to serve notice on the defendant properly. The plaintiff brought the lawsuit in the wrong court.
Identify the reasons dismissal “with prejudice” is granted. Courts likewise may differ slightly on the grounds for dismissing a suit “with prejudice.” The most common reasons include: The case was settled and the amount paid. The defendant named in the case is not the right person. The case has already been decided in another court. The claims are barred by law.
Gather supporting information. You might need to show the judge information that supports your motion to dismiss. For example, if a case has already been litigated in a different court, then you would want to get a copy of the order of judgment. Similarly, if you do not live in the county where the lawsuit has been filed, then you will want proof of where you reside, such as a property deed, valid driver’s license, and tax/utility bills. You should gather whatever information might be helpful to support your motion.
Think about meeting with a lawyer. You may want to talk about your case with a legal professional to check whether seeking a dismissal is in your best interest. The attorney can also tell you when to file the dismissal, as courts have specific timelines when a dismissal may be requested. A qualified attorney can listen to the facts of your case and offer advice tailored to your situation. To find a qualified attorney, you should visit your state’s bar association, which should run a referral program. Your courthouse may also have a self-help center. You can stop in and ask questions or ask the staff to look over your forms. To find out if a self-help center is available at your courthouse, call the court clerk.
Requesting Dismissal
Get a form. Your court may have printed “fill in the blank” forms for you to use. Ask the court clerk. If your court does, then you should use the form. California has a form that can be used for a dismissal with or without prejudice. It is available at http://www.courts.ca.gov/documents/civ110.pdf. You may need other forms, such as an Order or Entry of Dismissal, along with Proof of Service. Pick those forms up from the clerk at the same time.
Draft your own motion to dismiss. If your court does not have a fillable form, then you will need to draft the motion yourself. You should look for samples on the Internet. Type “Motion to Dismiss” and then your state. Try to find samples specific to your state, as the form and substance of motions can differ somewhat from state to state. At a minimum, a motion to dismiss should have: Header information. The header identifies the court, the parties, and the case number. It may also identify the judge. Look at an earlier motion or pleading in your case to find this information. Title. You should title the motion “Motion to Dismiss the Complaint.” Body. In the body you request dismissal and provide the factual grounds for the relief. For example, you would write, “COMES NOW Defendant Aisa Rosen, representing himself pro se, who asks this court to dismiss the action with prejudice. In support of the motion, Defendant states…” Then you list the facts that support your motion. Conclusion. At the end of the motion you should again request dismissal. Sample language might be, “WHEREFORE, Defendant respectfully requests that the Court grant this motion and dismiss the complaint with prejudice.” Certificate of Service. You need to state how the motion was served and sign attesting to the service.
Sign in front of a notary. Some courts require that your motions be notarized. If so, you should delay signing the motion until you appear in front of a notary public. Notaries can be found at most courthouses and large banks. To find a notary near you, use the American Society of Notaries locator, available at their website. You can search by zip code. Be sure to bring personal identification with you to show the notary. A valid passport or driver’s license should be sufficient.
File. You should make at least two copies of your motion: one for the other party and one for your records. Take all copies and the original to the court clerk and state that you want to file. Depending on the court, you may pick up a hearing date at that time. In some courts, the clerk will schedule the hearing at a later date and inform all parties by mail of the hearing day and time. Ask the clerk what the process is in your court.
Serve notice on the other party. You will need to inform the other party that you are seeking to have the civil suit dismissed. You can provide notice by serving a copy of the motion. Ask the court clerk for what are acceptable methods of service of process. Typically, service can be made personally, either by a process server or by someone 18 or older who is not a party to the lawsuit. If you need to hire a process server, then you can expect to pay around $45-75. Some courts also allow service of motions to be made through first class mail. Once service has been made, you should file the Proof of Service (or equivalent form) with the court. This shows the judge that service was made. Keep a copy for your records.
Attending a Hearing
Arrive early. If you have never been to the courthouse before, then you should certainly give yourself plenty of time to find parking and go through any security. Try to arrive in the courtroom early, before you are scheduled to start. Be sure to turn off your cell phones and smart phones before entering the courtroom. Also do not bring food or drinks into the courthouse. If you need something to eat or drink, then consume food and liquids before entering the courthouse.
Dress appropriately. You should look professional when appearing before the judge. Although you don’t have to wear a suit, you should still be clean and neat. Men should wear long pants with a belt (if the pair of pants has loops for a belt). They should also wear collared shirts (tucked in) along with a tie. Women should wear a dress or long pants/skirt with a blouse. In no circumstances should you wear hats, shorts, flip flops, pajamas, see-through shirts, baggy pants that fall below the hips, or clothing with offensive imagery or language written on it.
Present your case. Explain why the case should be dismissed. If both parties agree to the dismissal, then probably only the plaintiff will have to do most of the talking. The judge may have additional questions. Answer questions honestly. If the motion is contested—that is, only one party wants the case dismissed—then each party should prepare to make an argument to the judge. Have copies of any document that you want to use in support of your motion.
Fill out the order. The party who prevails typically is tasked with preparing the order for the judge to sign. In some courts, you need to have created the order at the same time as you drafted your motion. In other courts, you will fill out the motion after the judge comes to a decision at the hearing. There should be forms for you to use at the courthouse. Ask the clerk to show you. Nebraska’s Order of Dismissal, which must be completed and submitted when you file your motion, is available at https://supremecourt.nebraska.gov/sites/default/files/DC-4-7.pdf.
Proceed to trial, if necessary. If the judge denies the motion to dismiss, then you should be prepared to continue on with the trial. Although you can appeal the denial of the motion to dismiss, you may only appeal after the completion of the lawsuit.
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