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Here, I assume that you mean a motion to dismiss for "failure to state a claim," which is made pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The standard for dismissal under 12(b)(6) is that the facts, taken as true, allege no plausible right to relief (no violation of the law). Here, it is important to note that the facts are taken to be true -- not the laws! You can't just recite the elements of a cause of action. Even so, you should note that this is a very liberal pleading standard. Taking the facts as true, the judge will not dismiss the case under 12(b)(6) as long as the facts spell out some actual violation of the law, and the right to relief rises above the "merely speculative" level. For cases that discuss the standard for a 12(b)(6) motion to dismiss, see Bell Atlantic Corporation v. Twombly and Ashcroft v. Iqbal. These cases highlight that the standard for surviving a 12(b)(6) motion is much harder now than it was in the past, perhaps because of the great expense associated with discovery.
Second, cases may be dismissed on more "technical" grounds, like a lack of subject matter jurisdiction (it's not an appropriate case for federal court; there's no "federal question," or the parties are not from different states with more than 75K in dispute) or lack of personal jurisdiction (the defendant does not have enough contacts with that state for you to be able to sue them there).
This summer, I worked for a federal judge and we dismissed a case for lack of prosecution (the plaintiff showed a complete lack of interest in going forward with the case). There are all sorts of ways that cases may be dismissed, and, with that, there are all sorts of standards. Our judicial system is set up, however, so that it should be more difficult for a case to be dismissed at the pleadings stage, so that each case may be dispensed based on its merit!
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In a court of law what does instanter dismissing mean?
The answer to your question is: Instanter means the court dismisses a usual civil proceeding instantly upon filing, though that fact may not become evident to some other date following the filing of the proceeding; but it is dismissal by the court without a motion by an opposing party; or without a motion from the judge (sua sponte dismissal), such motion known as a show cause order. Usually the Plaintiff can file an amended pleaded after instanter dismissal, however, instanter dismissal is usually unauthorized by law, as court is usually prohibited from dismissing a case without a motion from a party except where the dismissal is for lack of subject matter jurisdiction; then the court may dismiss on its own motion known as sua sponte dismissal.
How do you fight a motion to dismiss in civil court?
Have your attorney argue the facts that show there are no grounds for dismissal.
How do you dismiss a case filed in small claims court transferred to circuit court?
To dismiss a case filed in small claims court that has been transferred to circuit court, you would need to file a motion to dismiss with the circuit court judge. The motion should explain the reason for the dismissal, such as a settlement between the parties or lack of jurisdiction. The judge will then review the motion and decide whether to grant the dismissal.
What is the procedure court order of dismissal motion to vacate?
Talk to a lawyer, because it will depend very much on the details.
What does acd mean in legal terms?
Adjournment in Contemplation of Dismissal (ACD) means that the court has adjourned from hearing the case in consideration of a dismissal of charges. This typically indicates that the charges pressed against the defendant are soon to be dismissed as a motion for dismissal is being granted.
What is a motion stipulation in criminal proceedings?
Stipulation Once a defendant has served an answer to the plaintiff's complaint, the plaintiff may obtain a dismissal without prejudice by entering a formal agreement, a stipulation, with the defendant. The parties agree to the terms of the dismissal, which must be filed with the court clerk and put into effect by the action of the clerk. A dismissal agreement is a court order that enforces the stipulation of the parties. A dismissal by stipulation is a dismissal without prejudice unless the parties otherwise agree and record their agreement in the text of the stipulation.
What does motion and order to vacate hearing mean?
A motion to vacate dismissal is a request made to the court to "re-open" a case. There is an order of dismissal if a party failed to appear for a hearing, if it is determined by the court that a party has not stated a claim upon which relief may be granted or any number of other reasons. The party that the order of dismissal is against, will file this motion indicating justifiable reasons for which dismissal would be unjust to the moving party.
How long do you have to file a habeas corpus after an appeals court has denied the motion?
Habeas Corpus is not relevant to the dismissal of a motion at the appellate level. A state court of appeals is the last court of resort with the exception of the state's supreme court which is in most instances is a the appellate court. The US Supreme Court reviews and sometimes hears cases that involve the violation or infringement of a US citizen's Constitutional rights.
How many days period of limitation for filing an application for the restoration of the suit?
If you are referring to a case that got dismissed for lack of prosecution, the time limit may vary according to state law. Generally, however, it is beneficial to apply to the court with a Motion to Reinstate (or it called be called a Motion to Vacate Dismissal) as soon as possible. It is important to demonstrate promptness in trying to get the case reinstated. The motion should set forth valid reasons for not appearing in court, filing a required pleading, or not doing whatever may have led to the dismissal. A copy of the motion has to be mailed to the other party. Call the Clerk of Court or the Judge's office to determine if a hearing will be needed on the motion.
What is an involuntary dismisssal?
The party who brings the case may dismiss the case at anytime, generally, and sometimes with stipulations, agreements. That would generally be considered a voluntary dismissal, i.e. dismissal for their own reasons, likely. On the other hand the opposing party may ask the court, by motion, too dismiss the case brought against them; and the court may grant that motion to dismiss, and dismiss the case. The involuntary dismissal may occur because, for example, a party fails to comply with rule requirement or requirements in his/her "pleadings."
What is the result of a Motion to Dismiss if the moving party is successful?
Dismissal.
What is the real purpose of filing a motion?
The real purpose of filing a motion is to communicate to the court intentions or request for an intervention from the courts. This may include interpretation of a law, dismissal of charges, change of time or venue and so much more.
