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Richard - Bizlaw
Richard - Bizlaw, Attorney
Category: Legal
Satisfied Customers: 8771
Experience:  30 years experience corporate, litigation, international
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motion to dismiss template

Resolved Question:

motion to dismiss template
Submitted: 4 years ago via Cornell Legal Info Institute.
Category: Legal
Expert:  Richard - Bizlaw replied 4 years ago.
What are the grounds you are seeking for dismissal? What law is applicable, federal or state law?
Customer: replied 4 years ago.

the matter is (Federal) Southern District Court NY

Fed Civil Procedure Rule 12 (b)

 

Motion to dismiss on the basis of of lack of jurisdiction - both subject matter and Personal. Also for Failure to state a Claim.

 

I need a template for the Motion, Memorandum and Affidavit.

 

Thanks

Customer: replied 4 years ago.

Defendant a foreign national residing in UK sued in US federal Court Southern District of NY in Civil matter.

 

Defendat says she never done any business in US that it a case of mistaken identity/identity theft. Plaintiff sued without prior warning to defendant.

 

she needs file file motion to dismiss on basis of Lack of subject matter and personal jurisdiction. Also for failure to state a claim. We require template of motion to dismiss, memorandum and affidavit.

 

Another Question. Is there a Pre-Action protocol rule in US fed law or District Court Rules.

 

In UK Civil Litigation rules Pre-Action Protocol dictates that a Plaintiff must first warn a defendant by letter regarding pending suit. For example, you write a 7days or 10 days or 14 days letter called letter before action. stating .. I will issue court action unless I hear from you within10 days from the date of this letter... That gap allows the potential defendant to either settle before Court action commences or Potential defendat says sorry you've got the wrong person. Is there similar rule in US?

Expert:  Richard - Bizlaw replied 4 years ago.

There is no pre action protocol under U.S. law. There is no "template" for making a motion to dismiss. Such motions are made on the basis of the specific facts of the case. The U.S. District Court would have subject matter jurisdiction of a civil case brought against a foreign national. That basis for dismissal is not available. What you can claim is lack of subject matter jurisdiction and failure to state a claim against the defendant because they are not the party against whom the allegations are made.

 

To sustain a claim of lack of jurisdiction you have to show three things. First, the defendant was not served while present in the U.S. in the Southern District of New York. Second, the defendant does not engage in a continuous course of conduct in the Southern District of New York. Third, that the transaction which gives rise to the plaintiff's claim did not arise or take place in the Southern District of NY. You must establish all three to show that there is no personal jurisdiction of the defendant. That argument must be made in the context of the plaintiff's allegations. This argument should also be made in the context of the legal precedents on what is required to have personal jurisdiction of a person. If this case is based solely on diversity of jurisdiction, then personal jurisdiction is governed by NY law. The span of personal jurisdiction under NY law is not as broad as under federal law.

 

If you can demonstrate the person described in the complaint is not you, that is the easiest way to get the case dismissed. You also need to understand that you can make an initial motion on these matters or you can file an answer and then make a motion. If you file an answer you must be sure to include as an affirmative defense, lack of personal jurisdiction and failure to state a claim.

 

I strongly suggest you contact a NY attorney to assist you so your arguments are presented properly. These procedural issues are not that simple because in the US you have two legal systems to deal with, federal and state and the nature of the applicable law depends on what is alleged in the complaint.

 

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This communication is not intended as legal advice. A local attorney should always be consulted for legal advice. No client/attorney relationship is intended or created by this communication.

Richard - Bizlaw, Attorney
Category: Legal
Satisfied Customers: 8771
Experience: 30 years experience corporate, litigation, international
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