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Motions follow the same format generally, as far as the caption, case number, court jurisdiction header is concerned. It's just that the title of the motion and content is different. You are going to argue why the other party's argument for dismissal doesn't apply to your complaint, and include a memorandum in response to motion to dismiss with your motion, which includes case law, rules of civil/criminal procedure, and/or statutes, that demonstrate to the court the legal arguments showing why the court should not grant the other party's motion to dismiss.
I'm providing a link that provides a sample Motion to Dismiss (MTD) from Oregon State (for the proper format) here:
And sample responses to a MTD here:
Generally, the motion should be as brief as possible as long as you address all of the opposing side's legal arguments, supported by appropriate/applicable case law, rules, statutes. Brief, concise motions are more desirable than lengthy pleadings.
Also look at your judge's local rules on the court's website to see if the judge has specific rules in regard to page length for motions.
Yes, indeed a paralegal should be able to put together any type of motion or response to a motion.
Follow the sample in the links I provided.
Step one: Type the caption (name of the court, name of parties: Plaintiff vs Defendant; and case number.
Step two: Title the Motion: Response to Defendant's Motion to Dismiss
Step three: Short introduction of the facts of your case (parties, issues in dispute, etc.)
Step four: Your legal argument (why your case should not be dismissed), addressing each of the arguments in the opponent's motion to dismiss, cite the applicable rules of procedure, case law and/or statutes which support your argument. For example,
"Under Federal Rule 12(b)(6) [or the applicable Oregon Rules of Civil Procedure if in state court], the Court must deny the Defendants' motion to dismiss unless the Defendant demonstrates "beyond doubt that the [plaintiff] can prove no set of facts in support of [its] claim that would entitle [it] to relief." Flood v. New Hanover County, 125 F.3d 249, 251 (4th Cir.1997). In making this determination, the Court must also "accept the factual allegations in the [plaintiff's] complaint as true, and must construe those facts in the light most favorable to the Plaintiff." Id. As demonstrated below, the Defendants' motion cannot survive the application of these standards.
Step five: Date, your signature, address, phone number, and email address.
Don't forget the Certificate of Service showing you sent a copy to the other party.
The terms of service of JustAnswer.com don't permit us to give specific legal advice, so all I can do is give general legal information. For specific legal advice, you should speak to a local attorney in your state.
1. A response to a motion to dismiss (MTD) can be used as a title or the title you suggested. What's more important is the content; appropriate defenses; case law/statutes/rules that support your argument/defenses, not the title.
2. A response to a MTD is not the same thing as an amended complaint. A response to a MTD is appropriately used when no amendment to the initial complaint is needed. Since the defendant already responded to your initial complaint, leave/permission of court is required to amend your complaint. Therefore, if you wish to amend your complaint, a Motion to Amend your Complaint with an attached Amended Complaint would be the appropriate pleading to file, rather than a Response to the opposing side's Motion to Dismiss. See Rule 23 of the Oregon Rules of Civil Procedure regarding Amended and Supplemental Proceedings. I'm providing a link here: http://www.leg.state.or.us/ors/orcpors.htm
3. If it's true that the Statute of Limitations has passed, an appropriate argument/defense would be to show that you are within the applicable statute of limitations and cite the appropriate statute demonstrating this. See the following links to determine the appropriate SOL's for your cause of action: http://www.statuteoflimitations.net/oregon_statute_of_limitations.htm
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5. It is advisable to seek legal advise from a licensed attorney in your state. The information provided here based on the limited facts you provided is not legal advice, but merely general legal information, and no attorney-client relationship or privilege is created between you and I. For legal advice for your specific situation, please seek the services of an attorney in your state.
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