Defeating a Motion to Dismiss Your Personal Injury or Wrongful Death Lawsuit
Posted Thursday, March 1, 2018 by Chris Thayer
It is important for personal injury and wrongful death plaintiffs to be aware of the legal tools that may be used to defeat their claims. One such tool is the “motion to dismiss.”
What is a Motion to Dismiss?
A motion to dismiss is fairly straightforward. It is a formal request for the court to dismiss, or reject, a lawsuit or a particular claim within a lawsuit.
The litigation process begins once the plaintiff files a complaint and it is served upon the defendant. The defendant then has 20 days to “answer” the complaint, either by filing a formal response or by filing a motion to dismiss.
There are many reasons a court may agree to dismiss a claim or lawsuit. Those reasons include:
- The court lacks jurisdiction (the legal authority) to make a decision in the case. For example, state courts do not always have the authority to decide questions of federal law.
- Insufficient process. If there is something wrong with the content of the summons or complaint, then the court may dismiss the case. For example, the summons and complaint must name the right defendant.
- Insufficient service of process. There are specific rules that must be followed in “serving” the defendant with the summons and complaint. If those rules are not followed, then the defendant may file a motion to dismiss.
- Failure to state a claim upon which relief can be granted. This challenges the legal sufficiency of the plaintiff’s complaint. In other words, if you do not have a viable personal injury or wrongful death claim, then the court may dismiss your case.
An experienced attorney can help you defend against a motion to dismiss your personal injury or wrongful death lawsuit.
*Court Rejects Motion to Dismiss Wrongful Death Case Against Seattle*In June 2017, two Seattle police officers shot and killed 30-year-old Charleena Lyles after responding to a 911 call at her apartment. Her family filed a wrongful death lawsuit against the officers and the city, alleging that the shooting could have been avoided.
The officers and city filed a motion to dismiss the lawsuit, arguing that there was no basis for the family’s claims. The court granted the motion in part, but allowed the family’s negligence claim to proceed. This means that the family can continue to argue that the officers’ negligent conduct caused their loved one’s death.
*Filing a Damages Claim Against Seattle*Here are a few things you need to know about filing a lawsuit against the city. The first step is filing an official claim for damages with the City Clerk. The form must be filed within the applicable statute of limitations, which varies depending on the specifics of your claim.
The claimant may also submit supporting evidence, such as receipts and photos. After the City Clerk receives your claim, it will be sent to the Risk Management Office. A claims adjuster will investigate and recommend a resolution. Options include paying the claimant a sum of money, transferring the claim to another entity, or denying the claim altogether.
Claims typically take about 60 days to resolve, but more complicated cases can take longer. If the city denies your claim then litigation might be your next option. An experienced attorney can help determine your best course of action.
*Contact Us Today*Contact one of our personal injury attorneys today for a free consultation if you or a loved one have been injured or killed because of municipal negligence or misconduct. Our experienced attorneys will guide you through the litigation process and help recover the compensation that you deserve, including medical expenses and pain and suffering.