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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 granted. • 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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