How to Stop a Motion to Dismiss a Counterclaim

Motion requests are usually argued in open court.

A motion is a formal request to a court for a specifically stated relief. For example, a party who files a motion to adjourn is requesting that a judge move a court date. Motions generally require hearings in open court. Opposing parties in litigation are afforded the opportunity to argue their differing opinions about the motion to a judge. Motions to dismiss counterclaims are frequently filed by plaintiffs who have been counter-sued by defendants. A motion to dismiss a counterclaim asks for a judge to throw out a defendant's allegations against the plaintiff.

Instructions

1. 

   Researching the law is paramount in defeating a motion to dismiss.

   Know the motion's basis. Motion requests must be supported by law. Most courts require detailed, legal briefs to accompany motion requests. Therefore, a party who wishes to stop a dismissal must understand the law being cited in the motion brief. One common allegation in motions to dismiss is that the counterclaim has no legal merit. A responding party must offer specific, legal references to support the counterclaim in order to defeat this type of motion. Another common allegation is that no facts exist to support the validity of the counterclaim. To defeat this motion, clear facts supporting the counterclaim must be presented to the court. Whatever the grounds of the motion, an opposing party must present contrary evidence to the court to avoid the dismissal.

2. 

   It is critical to determine the deadline for filing and serving a response brief.

   File a response brief. It is critical to write a legally and factually accurate response brief when fighting a motion to dismiss. Relevant exhibits should be attached to the response. Examples of common exhibits are such things as sworn affidavits, deposition transcripts, medical records and police reports. The exhibits must directly support the content of the brief. It is also important to file the brief in court and serve it on the opposing parties. Moreover, courts have deadlines for filing and serving response briefs. Therefore, a party needs to research and adhere to the particular time line involved.

3. 

   A party must be in court for the motion hearing, or he may automatically lose.

   Appear in court. Never miss a hearing set by the court. If a party fails to appear in opposition to a motion to dismiss, the court will likely grant the moving party's request. Therefore, any party attempting to stop the success of a motion to dismiss must attend any motion hearings set by the court.

4. 

   An attorney should be consulted when facing a motion to dismiss.

   Consult with a lawyer. There are many legal complexities involved in stopping a motion to dismiss. Drafting response briefs and presenting oral arguments are governed by intricate court rules. These rules vary depending on the court in which a party is litigating. It is highly recommended that a party served with a motion to dismiss a counterclaim consult an attorney. If a motion to dismiss is granted, any rights a party may possess in her counterclaim may be lost forever. Relying on an attorney to protect any such rights is prudent.

References

• Mackinaw Central Legal Foundation; Brief in Response to Defendant's Motion to Dismiss; Patrick J. Wright, February 2011
• Michigan Supreme Court; Michigan Court Rules for Civil Procedure
• U.S. District Court for the Eastern District of Pennsylvania.; Brief in Opposition to Marc Bragg's Motion to Dismiss Counterclaim; Thomas Watkinson II, September 2007