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How do I respond to a motion to dismiss made by the other party?

A motion to dismiss might be in writing or it could be made verbally in court. Either way, how you respond to a motion to dismiss will depend on the reason why the other party or his/her attorney is making the motion.

There are many reasons why a case could be dismissed before trial. A few examples are:

  • the facts alleged do not support the cause of action;
  • the court does not have jurisdiction;
  • there is something wrong with the paperwork;
  • the statute of limitations has passed; or
  • the issue has resolved and there is no longer an existing controversy (moot).

A motion to dismiss could be because the petition that you filed is not sufficient to support the relief that you are asking for. Maybe you did not allege a change of circumstances to modify a custody order or you failed to include enough information about domestic violence when seeking a restraining order. So, you should be prepared to argue that your petition is has enough information to support your cause of action. You might also be able to ask the court to grant you permission (“leave”) to amend your petition so that you can add additional details that might be necessary to strengthen your defense to the motion to dismiss.

Another possible reason that the other party could move to dismiss your petition is because s/he argues that the events you allege in your petition did not happen at all. If the defendant makes this motion, it might include affidavits from witnesses or other documents that would be admissible at trial to show his/her side of the story. If the motion to dismiss is convincing, you might have to present your own affidavits and documents to prove that the allegations did occur as you have described, or at least there is a question about the facts of the case as to whether or not what you have alleged actually happened. A question of fact means that there is a real dispute as to what actually took place between the parties.

If the other party lives in a different state from where you filed your initial court petition, then s/he might file a motion to dismiss for lack of personal jurisdiction. This means that the state where you filed might not have jurisdiction (power) over the other party. To defend against a motion to dismiss for lack of personal jurisdiction, you should be prepared to show the judge that the other party has had “contact” with the state where you have filed the case, s/he was served in the state, or there is some other reason why the court has jurisdiction. For more information, go to our Personal Jurisdiction page.