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Motion to Dismiss Questions

Motion to Dismiss is an act of one party requesting the court remove a case. There are many reasons that a motion to dismiss is requested. Generally, courts allow motions to dismiss in order to remove the inappropriate cases which slow down the efficiency of the court system. Below are just a few of the more commonly asked questions regarding motion to dismiss that have been answered by Experts.

I need an example of a motion to dismiss. I sold my car online, the buyer inspected the car, test drove it and paid cash. Now is suing me because the car broke down and stopped running. How can I file a motion to dismiss before we get to court? If I win the case, will he have to pay for my attorney?

This link shows a sample of what a Motion to Dismiss looks like: http://www.liamsdad.org/court case/trespassing/2005 09 26 motion dismiss.pdf. This is just to give you an idea of what a motion to dismiss looks like. You will have to add your own arguments. The sample Motion was filed in the Circuit court; however the Motion to Dismiss would be the same for the General District Court. While the Motion to Dismiss will be filed before the court date, the judge won't see it or rule on it until the actual court date. When filing, you will send the original to the Motion to the court clerk and you will need to send a copy to the plaintiff by mail. You will have to argue the Motion to Dismiss on the court date so you should be prepared.

Generally, each party is responsible for their own attorney fee. Just because you win a case wouldn't entitle you to be re-reimbursed for attorney fees. However, exceptions are made when a case is frivolous. If you win the case, you could ask the judge to make the plaintiff pay your attorney's fee due to the lawsuit being frivolous.

How do I write a motion to dismiss without prejudice (by Plaintiff) in small claims court?

In order to dismiss without prejudice, you will have to get the other party to consent to the motion. If the other party doesn't answer, it is possible that the court would allow a letter from you that states you wish to remove your complaint. Generally, small claims court is informal and the court clerk could tell you if the letter would be sufficient. If not, you can prepare a Motion to Dismiss without Prejudice. If you need a sample motion, you can use this: http://www.superiorcourt.maricopa.gov/superiorcourt/familycourt/docs/motiondismiss.pdf

I filed a Motion to Dismiss the defendants' counterclaim in Circuit Court in IL, and the defendant never responded. Is there a rule that tells me a time limit within which defendant should have filed a response?

Generally, when a defendant doesn't respond to a motion to dismiss a complaint or file a counterclaim, the court will make a decision on the motion. Usually, courts will set their own time frame on responses so you will need to contact the clerk of courts. All you can do is wait for the court to make its decision on the motion to dismiss.

If my motion to dismiss is denied by the court, what should I do to prepare for the hearing. This is a Small Claims case and I am unsure of who is suing me. The person claims that they loaned me cash money from 2009-2012.

Basically, if you are unsure of who is suing you, there really isn't much you can do to prepare for the hearing. It is up to the plaintiff to prove his case. If the plaintiff doesn't have any factual proof, such as written agreements or information, usually the judge will determine whose proof is more credible.

It is odd that the person wouldn't give a specific timeframe, such as an actual date when the money was given to you. The 2009-2012 is vague. This may be a mistake in identity or perhaps the person may have mental issues that may have spurred the allegations of the loan. However, the facts of the case will surface during the court hearing. During this time, the judge will ask the plaintiff to prove his/her case to the court.

When a person wishes to have a case excused from the courts, they file a motion to dismiss. Many people are unaware of the benefits of a motion to dismiss and are at a disadvantage when going to small claims court. Before you go to small claims court over a frivolous matter, you should ask an Expert to explain how a motion to dismiss may help you.
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