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Motion to Dismiss


									              Motion to Dismiss
Potawatomi Tribal Court Rules of Civil Procedure
Rule 41 (b) Involuntary Dismissal: Effect Thereof.
  For failure of the plaintiff to prosecute or to comply
  with these rules or any order of court, a defendant may
  move for dismissal of an action or of any claim against
  the defendant. Unless the court it its order for dismissal
  otherwise specifies, a dismissal under this subdivision
  and any dismissal not provided for in this rule, other
  than a dismissal for lack of jurisdiction, for improper
  venue, or for failure to join a party under Rule 19,
  operates as an adjudication upon the merits.
                       Motion to Dismiss
• Involuntary dismissal is one of harshest sanctions
  at trial court's disposal because it usually
  extinguishes plaintiff's cause of action and denies
  him his day in court; thus, it is reserved for use
  only in most extreme circumstances. United States ex rel. Drake
  v. Norden Sys., 375 F3d 248. (2004, CA2 Conn).
  Many Grounds for a Motion to Dismiss
• Fed. R. Civ. P. 12(b) … a party may assert the
  following defenses by motion:
    (1) lack of subject-matter jurisdiction;
    (2) lack of personal jurisdiction;
    (3) improper venue;
    (4) insufficient process;
    (5) insufficient service of process;
    (6) failure to state a claim upon which relief can
      be granted; and
    (7) failure to join a party under Rule 19.
• And there are more…
               Failure to State a Claim
• Motion made before responsive pleading
• If matters outside the pleadings are presented and
  accepted by the Court, it is no longer a Motion to
  Dismiss for Failure to State a Claim
   • Becomes a Motion for Summary Judgment

• Complaint does not need extremely detailed factual
  allegations, but a plaintiff is obligated to provide
  the grounds of his entitlement to relief. This requires
  more than labels and conclusions, or a recitation of the
  elements of a cause of action. Factual allegations, if
  taken as true, must be enough to raise a right to relief
  above the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
             Failure to State a Claim
• Burden of proof is on the moving party
• What is the standard?
  – Court cannot grant dismissal unless it appears beyond
    doubt that plaintiff can prove no set of facts in support
    of his claim which would entitle him to relief. The
    court will assume truth of all of factual allegations set
    forth in plaintiff's complaint, and will construe
    complaint liberally in favor of plaintiff. McCray v. Veneman (2002,
    DC Dist Col) 298 F Supp 2d 13.

  – Instead of dismissing, many jurisdictions will allow
    plaintiff to amend complaint where such amendment
    would not be futile
   Failure to State a Claim (Hypo)
• John files a complaint against Paul in trial court.
  John claims that he built a house for Paul. John
  says he spent over $100,000.00 in materials and
  over $50,000.00 in labor. John says he finished the
  house in record time, the house is up to code, and
  that the construction is sound and does not need
  repair. Following John’s complaint, and before
  filing an answer, Paul files a motion to dismiss for
  failure to state a claim upon which relief can be
• What should the court do?
   Failure to State a Claim (Hypo)
• 1. It could grant the motion to dismiss
  – An essential part of a contract claim is that there
    was an agreement between two parties
  – John never alleged Paul agreed to pay him if he
    built the house
     • Paul must articulate this in his motion
    Failure to State a Claim (Hypo)
• 2. It could allow John to amend his complaint
   – Let John correct his pleading oversight
   – Allows John to have his day in court

• HCN Rules of Civil Procedure 21. Amendments to Pleadings.
• Parties may amend a Complaint or Answer one time without leave
  of the Court prior to the filing of a responsive pleading, or if no
  responsive pleading is permitted, at any time within twenty (20)
  days of the original filing date. Subsequent amendments to
  Complaints or Answers may only be made upon leave of the Court
  and a showing of good cause, or with the consent of the opposing
  party. All amendments to the Complaint or Answer must be filed at
  least thirty (30) calendar days prior to trial or as otherwise directed
  by the Court. When an Amended Complaint or Answer is filed, the
  opposing party shall have ten (10) calendar days, or the time
  remaining in their original response period, whichever is greater, in
  which to file an amended responsive pleading.

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