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Ask Maverick Your Own Question
Maverick, Attorney
Category: Legal
Satisfied Customers: 6423
Experience:  20 years experience as a civil trial and appellate lawyer
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Client sued as one of many defendants but clearly not liable. how to get dismissed out wit

Customer Question

client sued as one of many defendants but clearly not liable. how to get dismissed out without filing answer and incurring expensive filing fee and atty fees. client will cooperate as witness has no relevant info as witness. lawyer took a shotgun filing approachsuing all in sight. defendant will coop to answer interrogs and have deposition taken.
Submitted: 2 years ago.
Category: Legal
Expert:  Maverick replied 2 years ago.
Welcome. My name is Maverick. I very much enjoy what I do and I hope that you will benefit from the information or assistance that I provide.
What is the legal and factual basis that your client should be dismissed from the case?
Customer: replied 2 years ago.
Defendant was not involved in the accident. She came upn it 5 minutes or so after it occurred. Defendant was 1 of 10 who were interviewed after she telephoned the authorities. Defendant was not in the accident. She was not hurt. She did not know anyone involved in the accident.
Customer: replied 2 years ago.
The easiest thing might be to just file an answer along with an affirmative defense the defendant was not involved in the accident. I know that a motion for non-suit can be filed but that seems like the bruit-force way when all defendant is is a witness with no useful info.
Expert:  Maverick replied 2 years ago.
Based on 430.10(e) and 430.30, you may want to consider filing both an answer and a demurrer. The answer should contain an affirmative defense of "failure to state a cause of action" because the complaint does not contain enough facts to state a cause of action against THIS defendant.
The answer provides you the back up you need on a substantive basis in case your motion to dismiss (demurrer) fails. The code gives you the option, but if it were me, I would do both.
The link above has a sample demurrer that you can use as a go-by.
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