After a pleading or motion is filed with the court, it can only be withdrawn by the court. Therefore, you can only withdraw a motion to dismiss by requesting that the court remove the previously filed pleading. However, the court will only withdraw motions to dismiss if the judge has not already ruled on the matter. Once a judge orders a matter dismissed, it must be refiled by the plaintiff.
Draft a Motion to Withdraw Motion to Dismiss. Style this pleading according to the previously filed Motion to Dismiss, with the jurisdiction, style of the case, party names and case or civil action number at the top, followed by the pleading heading and the content of the pleading.
State your reasons for requesting the court withdraw the previously filed Motion to Dismiss. Often, parties privately resolve matters outside of court. For instance, a defendant may have filed a Motion to Dismiss on the grounds that venue was improper. However, if the plaintiff agrees to a transfer of venue, defendant may need to move for the court to withdraw previously filed Motion to Dismiss so that the matter may be transferred to another court.
Explain lack of grounds for Motion to Dismiss, if applicable. Motions for dismissal are granted on the basis of improper service, improper venue, lack of personal jurisdiction, lack of subject matter jurisdiction or failure to state a claim. To discount your original Motion to Dismiss, counter your original claim(s) with evidence that the complaint or cause of action has, in fact, met the requirements of civil procedure.
File the Motion to Withdraw Motion to Dismiss with the court before the court rules on the Motion to Dismiss. Some courts allow parties to call the clerk's office or judge's chambers in advance to announce motions intended to be filed, so that the court will refrain from ruling on the original motion. However, this practice varies by jurisdiction; call the clerk's office to inquire about the rules of the court.
- Cornell University Law School: Federal Rules of Civil Procedure: Rule 12(b)
- US Legal: What are the grounds for filing a Motion to Dismiss a Complaint?
- United States District Court: Agreed Motion to Withdraw America Online, Inc.'s Motion to Dismiss for Lack of Personal Jurisdiction Pursuant to FRCP 12(B)(2)
- Photo Credit Zedcor Wholly Owned/PhotoObjects.net/Getty Images
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