How to Invoke the Statute of Limitations

You must file a motion to dismiss to claim a statute of limitations defense.

Statute of limitations are time restrictions placed on a party's right to sue. The statute of limitations vary widely depending on the type and nature of the case, ranging from one year to no limit. If a party has filed a complaint you believe is time barred by the applicable statute of limitations, you must file a motion to dismiss due to expiration of statute of limitations.

Things You'll Need

• Motion to dismiss

Instructions

1. Draft your motion to dismiss due to expiration of statute of limitations. You can find blank motions to dismiss in the clerk's office of the courthouse where your case is currently pending. Although the specifics vary by jurisdiction, start by entering the current case information into the caption at the top of the motion, then in the narrative state that you wish the court to dismiss the plaintiff's case with prejudice (meaning plaintiff cannot refile his complaint) due to an expiration of the statute of limitation, making sure to cite and quote the statute as it exists in your jurisdiction.

2. File you motion in the clerk's office where the suit is currently pending. Serve a copy of the motion on the plaintiff via registered mail. At the first date on your motion, the court will set a briefing schedule on your motion, which sets up a time frame for the plaintiff to file a written response to your motion and setting the matter for hearing.

3. Appear at the hearing on your motion. You will have the opportunity to present your argument on the motion, and the plaintiff will allowed to respond. If the court determines that the statute of limitations has expired, the plaintiff's case will be dismissed.

Tips & Warnings

• If you are handling a small claims case, the time frame is greatly accelerated, because many states only provide for one pre-trial in small claims cases. In this case, be prepared to present your motion on the first appearance in court when you appear to answer the complaint.

References

• Florida Association of Criminal Defense Lawyers; Florida v. Sumne - Defendant's Motion to Dismiss and/or Motion for Discharge
• Montana.gov: Montana Code Annotated of 2009 - 25-4-301 - Pleading Statute of Limitations
• Utah Courts: Rule 9 - Pleading Special Matters
• Justia US Law: 2009 California Code of Civil Procedure - Section 452-465