Three Possible Grounds For Filing A Motion Of Dismissal


You probably know that a defense lawyer can file a motion to dismiss a case before it is concluded, or even before it starts. However, before you rush to steer your attorney in that direction, know that such a motion can only be filed under certain conditions. Examples of reasons for filing a motion to dismiss include:

Insufficiency of Process/Service of Process

When you cite insufficiency of process, you are saying that you were served with a defective summons. A summons is an official notification that you have been mentioned as the defendant in a lawsuit and that you have to defend yourself in court.  A summons is defective if it carries some error in it, but such errors are very rare.

As for insufficiency of service of process, it means that the proper channels for serving you with the summons were not followed (even if the actual summons is error free). For example, it may be improper for the process server to leave the summons with a neighbor who lives in a different apartment or on your apartment's lobby.

No Legal Claim for Seeking Relief

Before you are tried, the court must ascertain that the complainant has a legal claim for bringing the lawsuit against you. If there is no valid legal claim, then the case shouldn't proceed. Consider a case where a complainant alleges that your negligence led to his or her loved one's injury in a nursing home. In this case, the complainant must first prove that you had a duty to care for the injured person and that you breached that duty. If you weren't in any way responsible for the victim's well-being, then you shouldn't be accused of being negligent.

Improper Jurisdiction

Your lawyer may also use lack of jurisdiction as a basis for seeking a motion for dismissal. This can either be lack of:

  • Subject matter jurisdiction – this means that the court does not have the authority to try the case. For example, if an alleged crime occurred on a military base, then a state court doesn't have the jurisdiction to try it.
  • Personal jurisdiction – this applies if you don't have sufficient contact with the jurisdiction over which the court presides. For example, the state in which you have been arrested may not have jurisdiction over you if you neither live nor work there and the alleged crime was also committed elsewhere.

For the court to accept your motion to dismiss, both the prosecution and your lawyer must agree on the facts put forth by your lawyer supporting the motion. If they don't, then the court will not grant the motion. For example, if your lawyer claims that the court lacks the jurisdiction to try you, but the prosecution denies the fact, then the trial will continue. For more information, speak with experts like Novak Lee Atty At Law.


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