The Motion to Dismiss: Speed Bump or Early Exit?

December 29, 2016

 

 

If you’ve followed along with our blog postings, then you know that a complaint is the first major document a party files in court, and it sets forth why the plaintiff is entitled to relief.  But what happens when the complaint is inadequate and fails to set forth a right of recovery?  That’s when the complaint is subject to a motion to dismiss.

 

A motion to dismiss is a request by the defendant who is sued to eliminate some or all of the plaintiff’s claims before the lawsuit really gets off the ground.  In North Carolina, the moving party must show that the facts of the complaint--if taken as true--fail to establish a right to recover.  This typically happens in one of two different ways.

 

First, a claim may be subject to dismissal if the complaint fails to allege facts that can support the elements of a claim.  For example, a negligence claim requires four elements: Duty, breach, causation, and damages.  If the plaintiff forgets to make factual assertions that they were damaged by the defendant’s acts (e.g, injury and money paid for medical services), then the negligence claim is likely to fail when the motion to dismiss is brought.

 

Second, sometimes the complaint will contain factual allegations that subject it to dismissal on its face.  For example, a breach of contract claim that alleges a breach of contract over five years in the past may not survive a motion to dismiss based upon the statute of limitation.

 

The more complex the lawsuit, the more carefully the plaintiff must draft their complaint to support their claims and to avoid making admissions that subject the complaint to dismissal.  For many motions to dismiss, if they are granted, then the claim is considered resolved under the doctrine of res judicata, meaning you may not get a another bite at the apple.

 

At Asheville Legal, our civil litigation attorneys specialize in drafting complaints that are specifically designed to withstand motions to dismiss.  Often times, the lawyers we face never even file such motions because our complaints are so well drafted.  If you’re considering filing a lawsuit, and you have concerns about drafting an excellent complaint that will survive or outright deter a defendant’s attempt to dismiss your suit, then you should give us a call today.

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The attorneys at Wimer & Snider, P.C. in Asheville have represented clients in much of the United States, including North Carolina, South Carolina, Georgia, Florida, California, Virginia, and Texas. We are licensed to practice law in North Carolina and Texas. Our offices are conveniently located in the arts district of West Asheville, NC.   Phone: 828-350-9799

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