How to File a Motion to Dismiss in Chilton County, Alabama
Section III of the Alabama Rules of Civil Procedure provides residents with information regarding civil practice and procedure. A motion to dismiss can be filed for any number of reasons including insufficient evidence, failure to state a claim upon which relief can be granted or violation of statute of limitations. A motion to dismiss must first be drafted to reflect the party's reason to dismiss. The motion should then be filed in the court within which the claim was originally filed. The party must serve the motion upon all other parties and the court will hold a motion hearing at some point thereafter. The party motioning to dismiss is known as the "moving party" and the party receiving the motion to dismiss is known as the "non-moving party."
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Instructions
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Review the opposing party's pleadings and filing to determine the grounds for dismissal. There are a wide variety of grounds upon which a civil litigant in Alabama may choose to file a motion for dismissal. Most times, motions to dismiss stand upon grounds of procedural deficiencies by the opposing party. By reviewing the opposing party's pleadings and any other documents filed in its case, the moving party will be able to concisely draft its motion to dismiss. For example, if the moving party's wish to dismiss is based upon inadequate service of process, it should review the certification of service filed in the court and look for inadequacies. Rule 12 lists the many grounds under which a party may move to dismiss.
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Draft a motion. A motion to dismiss must first identify the case and parties at the top of the first page. Be sure to include the case number provided by the court so the clerk can attach the motion to the correct file. After the identifying information, known as the caption, briefly detail in one paragraph where the case stands today. If only the plaintiff's pleadings have been filed, state this fact. This helps the judge quickly review where the case stands. From there, draft a facts section detailing the facts pertinent to the motion to dismiss including any missed deadlines or inadequate procedural requirements. Then, include the statute under which the motion falls. If the motion to dismiss is based upon inadequate service of process, include the Alabama service of process code section and quoted statute. Lastly, connect the facts to the law and explain to the court why this case must be dismissed under Alabama law. All pleadings must be in compliance with Rule 11.
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File the motion to dismiss in the same court in which the original complaint was filed. A cover sheet should be included with the motion. Many Alabama counties allow for filing of motions via email. However, parties are always free to bring the motion to the courthouse and submit it in person. The clerk of court handles filing and submissions. She will review the motion for completeness and certify its receipt. The moving party must arrange for service of process of the motion upon all other parties to the lawsuit. The sheriff can serve the motion to other parties.
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Attend the motion hearing. Once the parties have been served, the clerk will place the motion hearing on the court calendar and all parties will receive notification of the court date. The non-moving party may file an answer to the motion to dismiss explaining why the case should not be dismissed. Review the non-moving party's legal arguments and be prepared to rebut these arguments at the hearing. Each party will be given a set amount of time within which to argue his contentions. The judge will usually make a ruling on the matter at the conclusion of the hearing either to dismiss the case or to deny the motion to dismiss.
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References
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