How to Draft a Motion to Dismiss
Defendants file a motion to dismiss when they feel that a case has been improperly filed against them. Reasons for filing this motion can include: the court does not have subject matter jurisdiction in the case; due process was not followed when the case was brought into the court system; there is not a legal remedy for the plaintiff's claim to be enforced; or the person being prosecuted is not subject to the jurisdiction of the particular court.
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Instructions
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Visit the court clerk’s office. Individual jurisdictions may prescribe their own version of forms that must be used to present the motion to dismiss. The court clerk should provide you with the standard form for your local venue or at least direct you as to how to format your written motion if no particular form is required.
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Review examples of other motions. Document sites such as Scribd.com, DocStoc.com and local-level court system sites contain a number of examples of previously used motions to dismiss. These motions represent a wide variety of venues and subject matter. Pay special attention to samples from your state and carefully observe motions relating to the subject matter that is the same as in your case. This will provide ideas for how to draft your motion.
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Include the case number and name. Ensure that this information is accurate and complete. The court clerk’s office will likely use this information to properly file your motion.
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Write the narrative. When writing the narrative of the motion you should include as many supporting facts as possible. Point to a clear line of reasoning for why the case should be dismissed.
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Submit your motion to the court clerk. Depending on the provisions of your state’s laws, the other party to the legal action will have a certain number of days in which to respond to the motion. For instance, in Ohio, the filing of the motion instantiates a 14-day window during which time the other party must respond to the filing. The judge will review the motion and decide if it is meritorious.
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