How to File a Motion to Dismiss in Georgia
There are few weapons in a litigator's arsenal as powerful as the motion to dismiss. It can be used to entirely drop a case before trial. The motion to dismiss, often called a b-12 motion, is filed at the beginning of a trial or hearing to ask the judge to completely dismiss a case because no legal remedy can be found. However the motion is only used in limited situations.
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Instructions
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Show lack of jurisdiction over the subject matter. The word jurisdiction is confusing. It has one meaning in context of law enforcement, referring to the scope of authority of the arresting agency. It also has a numerous, slightly different meanings in the context of the legal process. Subject matter jurisdiction refers to the authority that a court has over the subject of the suit before it. Bringing a family law matter in a traffic court would be considered an improper jurisdiction over the subject matter and can be moved for a dismissal.
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Show that the court lacked jurisdiction over the person. The court has authority or jurisdiction over a person when they either live in a prescribed area or they have such minimum contacts with an area that there is an expectation that they can be sued there. Courts in Macon cannot draw citizens from Atlanta without some rational personal jurisdiction.
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Request a dismissal for improper venue. Courts gain their authority over people from statutes. Sometimes, those statutes are specific as to where a particular case may be litigated. If a person is arrested on a federal statute, such as the Racketeers Influenced and Corruption Organization Act (RICO), then federal courts are the proper venue. Holding a trial in family court for someone arrested under a RICO statute would be considered improper and would be ripe for dismissal.
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Show insufficiency of process and service of process. Service of process is the method in which a defendant or respondent is made aware of the suit against them and invited to participate in the legal process. The beginning of a case is a critical time. Motions, forms, and declarations must be filled out correctly and they must be given to the other party in a prescribed manner. Any deviation from the court rules in instituting a case against another can be grounds for dismissal.
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Allege that the other party failed to state a claim upon which relief can be granted. All court cases begin with a complaint. In legal terms, the complaint is a form to begin litigation, but in layman's terms a complaint is voicing a specific grievance. To be valid in a court of law, the complaint (the form) must allege a complaint (the grievance) that is sufficient, valid and can be rectified by law. If the complaint does not sufficiently make a claim it can be dismissed. For example, "he hurt me bad" is not a sufficient complaint. "The defendant did assault the victim on such-and-such date at so-and-so location," would be a sufficient claim. However if the complaint is not recognized by law as actionable, then the case can still be dismissed. Bringing a person to court for being a jerk, while understandable and often desirable, is not a proper claim for which relief can be granted.
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Tips & Warnings
This article is not intended as legal advice. Always consult an attorney before beginning a trial or hearing.
References
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