How to dismiss a civil court case

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How to dismiss a civil court case

There are a number of documents commonly filed in both civil and criminal cases. Among the documents frequently filed are petitions, complaints, motions, and orders. The parties to a legal case may file petitions, complaints, and motions; however, only a judge may officially sign and enter an order. An order for dismissal is a final order filed in either a civil or criminal legal case that effectively terminates the legal proceedings.

In a civil lawsuit, a motion to dismiss may be filed by the defendant for a number of legal reasons. Within the United States, a civil complaint begins when the plaintiff files a petition or complaint with the appropriate court. The defendant may immediately file a motion to dismiss based on one of several legal reasons, including lack of jurisdiction and failure to state a claim upon which relief can be granted. If the judge agrees with the defendant’s motion, then an order for dismissal will be granted and entered.

A motion to dismiss may also be filed later on in civil proceedings. Once a civil lawsuit has been filed, a process known as discovery takes place, where each side is allowed to get an idea what the other side’s evidence will be at trial. If, after discovery is complete, the defendant believes that the plaintiff cannot prove his or her case, he or she may ask the judge for an order for dismissal. Again, if the judge is convinced that the defendant is right, then an order to dismiss will be entered and the case is terminated.

In a civil lawsuit, a dismissal order may be either with prejudice or without prejudice. An order for dismissal entered with prejudice effectively tells the plaintiff that he or she may not refile the lawsuit. When the order is entered without prejudice, the plaintiff has the option to re-file the lawsuit at a later time.

An order for dismissal may also be filed in a criminal case. In this case, all or some of the charges against the defendant will be dismissed. If the defendant has accepted a guilty plea, the terms of the plea agreement may call for some of the charges to be dismissed, which requires a formal entry by the judge. In situations where the prosecution determines that it no longer wishes to pursue the charges or lacks sufficient evidence to convict the defendant of all the charges, then an order for dismissal of all charges will be entered by the judge.

  • You and the person you sued reach an agreement and you want to end the case. (If this is your situation, make sure the person who owes you money follows through with the agreement —and the check or payment clears—before dismissing the case. And make sure that your agreement is in writing and protects both of you.
  • The person you sued paid you the money he or she owed you.
  • You cannot find the defendant to serve him or her, but want to reserve the right to sue at a later date.
  • You sued several people but have decided you only want to sue one or some of them, so you dismiss the case as to the others.
  • You no longer want to pursue the case because you changed your mind.

If you decide you want to ask to dismiss the case, you need to decide whether you want the court to dismiss it “with prejudice” or “without prejudice.”

  • With prejudice” means that you cannot re-file your case ever.
  • Without prejudice” means that you can re-file your case at a later date (as long as you are still within the statute of limitations).

To ask the court to dismiss the case

Note: Your court’s self-help center may be able to help you.

1. Fill out your court forms.

Fill out a Request for Dismissal (Form CIV-110).

  1. For item 1(a), check box (1) if you want the case dismissed with prejudice, or box (2) if you want it dismissed without prejudice.
  2. For item 1(b), check (5) if you want to dismiss the entire case.
    • If you only want to dismiss the case as to some defendants, check box (1) and write in the names of the defendants you want to dismiss in box (6).
    • If you are a defendant and you filed a cross-complaint against the plaintiff that you want to dismiss, check Item 1(b)(3).
  3. For item 2, check the first box if you got a fee waiver to file your case (and read the second page carefully, since you may have to pay back the waived fee if you are getting paid $10,000 or more by the other side). Check the second box if you did not get a fee waiver.
  4. Below Item 2, date, print and sign your name.
  5. If you are the plaintiff and the defendant filed a cross-complaint against you, he or she will have to sign off on the dismissal of the entire case, so have the defendant sign Item 3.
  6. Make 2 copies of the form.

If you served the defendant with your complaint OR the defendant filed a cross-complaint against you, OR if you are the defendant trying to dismiss your cross-complaint:

Fill out the Notice of Entry of Dismissal and Proof of Service (Form CIV-120).

  1. Fill out the caption (top box). For the portion that has the form name in capitalized bold letters, check the box for “Other (specify)” and write in the type of case you have (like “Unlawful Detainer” or “Civil-Contract”)
  2. Date, print your name, and sign the top portion that starts with “To Attorneys and Parties without Attorneys.”
  3. Leave the rest (the proof of service portion) blank for now.
  4. Make 1 copy of the form.

Do not fill out form CIV-120 if you have not served the defendant with your complaint AND the defendant has NOT filed a cross-complaint.

2. File your forms at the courthouse where you filed your case.

The court clerk will process your Request for Dismissal (Form CIV-110) and Form CIV-120. The clerk will keep the original and return the copies of Form CIV-110 to you, stamped “Filed.” Keep one for your records.

If you are the plaintiff and have not served the defendant with your complaint AND the defendant has NOT filed a cross-complaint against you, you are DONE.

3. Serve the other side with a copy of the dismissal papers.

If you are the plaintiff and you served the defendant with the complaint OR the defendant filed a cross-complaint against you OR if you are the defendant and you filed a cross-complaint and you want to dismiss it:

  1. Have the other copy of the filed Request for Dismissal served on the other side by mail by attaching it to a copy of the Notice of Entry of Dismissal and Proof of Service (Form CIV-120).
  2. Have the server fill out the proof of service section of the original Form CIV-120 and THEN make a copy of the entire Form CIV-120.

4. File the Notice of Entry of Dismissal and Proof of Service (Form CIV-120)

File the original and one copy of Notice of Entry and Proof of Service (Form CIV-120) to let the court know the other side got a copy of the dismissal. The clerk will keep the original and will stamp your copy “Filed.”

Keep a copy of the filed Form CIV-120 for your records.

If you decide you want to ask to dismiss the case, you need to decide whether you want the court to dismiss it “with prejudice” or “without prejudice.”

  • With prejudice” means that you cannot re-file your case ever.
  • Without prejudice” means that you can re-file your case at a later date (as long as you are still within the statute of limitations).

You can choose to dismiss without prejudice if you reach an agreement with the other person and you have not yet been paid in full (like if you set up a payment plan with him or her but you want to dismiss it before all the payments become due). This allows you to re-file later on if the person misses future payments.

You can dismiss with prejudice if you have received full payment and the case is over, or if you really are sure you will not need to (or want to) re-file the case again.

To ask the court to dismiss the case

Note: Talk to your court’s small claims advisor for help dismissing a small claims case.

1. Fill out your court forms.

Fill out a Request for Dismissal (Form CIV-110).

  1. For item 1(a), check box (1) if you want the case dismissed with prejudice, or box (2) if you want it dismissed without prejudice.
  2. For item 1(b), check (5) if you want to dismiss the entire case.
    • If you only want to dismiss the case as to some defendants, check box (1) and write in the names of the defendants you want to dismiss in box (6).
    • If you are a defendant and you want to dismiss your Defendant’s Claim, check Item 1(b)(3).
  3. For item 2, check the first box if you got a fee waiver to file your case (and read the second page carefully, since you may have to pay back the waived fee if you are getting paid $10,000 or more by the other side). Check the second box if you did not get a fee waiver.
  4. Below Item 2, date, print and sign your name.
  5. If you are the plaintiff and and the defendant filed a Defendant’s Claim against you, he or she will have to sign off on the dismissal of the entire case, so have the defendant sign Item 3.
  6. Make 2 copies of the form.

If you served the defendant with your Plaintiff´s Claim OR the defendant filed a Defendant’s Claim, OR if you are the defendant trying to dismiss the Defendant’s Claim:

Fill out the Notice of Entry of Dismissal and Proof of Service (Form CIV-120).

  1. Fill out the caption (top box). For the portion that has the form name in capitalized bold letters, check the box for “Other (specify)” and write in: “Small Claims”
  2. Date, print your name, and sign the top portion that starts with “To Attorneys and Parties without Attorneys.”
  3. Leave the rest (the proof of service portion) blank for now.
  4. Make 1 copy of the form.

Do not fill out form CIV-120 if you have not served the defendant with your Plaintiff´s Claim AND the defendant has NOT filed a Defendant’s Claim.

2. File your forms at the courthouse where you filed your claim.

The court clerk will process your Request for Dismissal (Form CIV-110) and Form CIV-120. The clerk will keep the original and return the copies of Form CIV-110 to you, stamped “Filed.” Keep one for your records.

If you are the plaintiff and have not served the defendant with your complaint AND the defendant has NOT filed a cross-complaint against you, you are DONE — Your case has been dismissed.

3. Serve the other side with a copy of the dismissal.

If you are the plaintiff and you served the defendant with a copy of your Plaintiff’s Claim OR the defendant filed a Defendant’s Claim OR if you are the defendant and you filed a Defendant’s Claim:

  1. Have the other copy of the Request for Dismissal served on the other side by mail by attaching it to a copy of the Notice of Entry of Dismissal and Proof of Service (Form CIV-120).
  2. Have the server fill out the proof of service section of the original Form CIV-120 and THEN make a copy of the entire Form CIV-120.

4. File the Notice of Entry of Dismissal and Proof of Service (Form CIV-120).

File the original and one copy of Notice of Entry and Proof of Service (Form CIV-120) to let the court know the other side got a copy of the dismissal. The clerk will keep the original and return the copy to you, stamped “Filed.”

Keep a copy of the filed Form CIV-120 for your records.

You are done. Your case has been dismissed.

Created byВ FindLaw’s team of legal writers and editors | Last updated May 11, 2018

You were in a car accident a while ago, which didn’t seem to result in that much damage to the other car or driver; but, now you’ve been sued by the other driver. Although you don’t deny that you were involved in the accident, you don’t believe that the claims in the lawsuit are valid. While you can fight the court case, it will take a considerable amount of your time and money to do so. So, you may wonder, do you have another option? Enter the motion to dismiss. While this is not a viable option for all defendants and there’s no guarantee that it will be granted, there are a variety of reasons why you may want to file a motion to dismiss.

Motion to Dismiss: The Basics

A motion to dismiss can be filed by either party in a case at any time during the proceedings, but it’s usually filed by a defendant at the beginning of a lawsuit. This type of motion may focus on the facts and allegations in the complaint and any documents – called “exhibits” – that are submitted in support of the complaint.

A motion to dismiss is filed when a party believes that the complaint is legally invalid, which can be based on a variety of grounds. For example, before disgraced comedian Bill Cosby’s retrial, his defense team filed a motion to dismiss arguing that the sexual assault alleged in the criminal complaint had happened outside of the “statute of limitations.” However, the judge dismissed the motion stating that the argument over the date of the alleged assault was a disputed issue for trial and could not be decided on the motion.

Grounds for Filing a Motion to Dismiss

A motion to dismiss can be filed on a variety of grounds, which are based on legal deficiencies. Some common grounds for filing a motion to dismiss include:

  • Insufficient Service of Process: The complaint and summons weren’t served properly.
  • Statute of Limitations Has Expired: Each state has “statutes of limitations,” or time limits in which certain lawsuits can be filed.
  • Lack of Subject Matter Jurisdiction: In order for a court to rule on a case, it must have “subject matter jurisdiction,” the authority to hear a particular type of case.
  • Lack of Personal Jurisdiction: Similarly, a court must have “personal jurisdiction” over a defendant in order to make a decision involving the defendant. A court has personal jurisdiction over a party when he or she is a resident or has “sufficient minimum contacts” with the jurisdiction where the lawsuit has been filed.
  • Improper Venue: Even when a court may have personal jurisdiction over the parties, it may be the improper “venue,” which refers to the specific location of the court (based on state laws).
  • Failure to State a Claim for Which Relief Can Be Granted: There are a variety of requirements with which a plaintiff must comply when filing a complaint, including a valid cause of action. A motion to dismiss may be granted if the plaintiff’s complaint fails to adequately allege all of the elements of a claim or if the complaint fails to allege a measurable injury.

For other possible grounds for filing a motion to dismiss, remember to check the rules of civil or criminal procedure in the state where the lawsuit was filed. If the case is in federal court, you can check the federal rules of civil or criminal procedure to learn more.

How to File a Motion to Dismiss

As previously mentioned, the procedure for filing a motion to dismiss will depend on the jurisdiction in which the lawsuit is filed. Generally, however, a defendant must file a motion to dismiss before filing an “answer” to the complaint. If the motion to dismiss is denied, the defendant must still file their answer, usually within a shortened amount of time. It’s important to be aware that specific reasons for a case dismissal must be in the first document filed with the court, otherwise that issue is considered waived.

The motion to dismiss must be filed with the court and served on the other party. The other party then has the opportunity to respond to the motion, usually within a couple of weeks. The judge will then review each side’s motion, and give the court’s decision at a predetermined hearing date.

Ruling on a Motion to Dismiss

When ruling on a motion to dismiss, courts generally assume that the facts and allegations in the complaint are true and will view them in the light most favorable to the plaintiff. Thus, it’s generally difficult to prevail on a motion to dismiss. If it’s granted, the case can be dismissed “without prejudice” or “with prejudice.” If the case is dismissed without prejudice, the case can be filed again at a later time. However, if a case is dismissed with prejudice, the case is over and cannot be refiled.

It’s also possible for the court to dismiss a case “sua sponte,” meaning without being prompted by either party. The court has this option when grounds for a case dismissal exist. For example, if neither party has an issue with venue where the case was filed, the court may still dismiss the case for improper venue.

Should You File a Motion to Dismiss? Speak to a Lawyer to Learn More

Lawsuits have several procedural rules that plaintiffs and defendants must both follow. The failure to do so can have a negative impact on your case. As seen above, certain errors can even result in a case dismissal. Whether you’re thinking about filing a lawsuit or you’ve had a lawsuit filed against you, the best course of action is to get in touch with a local litigation attorney to learn about all of your options going forward.

Pronunciation: duh-FEN-dent

Sample Sentence

Hear Defendant on YouGlish

Pronunciation (Please note that the word motion is used in the non-legal sense in many of these pronunciation examples)

Sample Sentences

First, the party filing the motion (you can call the party filing the motion the “moving party”), will submit his moving papers, which include a memorandum of law explaining to the Court why he thinks the case should be dismissed.

Second, the opposing party (the party opposing the motion may be called the “nonmoving party”) will then submit an Opposition to the motion to dismiss, arguing why he think his case should not be dismissed.

Third, the moving party will submit a Reply, in which he attempts to rebut the points raised in the Opposition.

After that, the judge might schedule oral argument. The parties (well, their lawyers) will come to court, explain their positions on the motion to dismiss, and answer any questions posed by the judge.

Finally, the judge will decide to grant or deny the motion.

But there could be months between the moving papers and the decision. What happens to the case in the meantime?

We’ll get to the answer in moment, but if you need a background on motions and motions to dismiss, please watch the videos below:

If you get through the first hurdles, the next legal paper you receive from the prison officials may be a Motion to Dismiss your suit. Rule 12(b) of the Federal Rules of Civil Procedure explains some of the grounds for a motion to dismiss. Defendants may give a number of reasons. One reason is sure to be that you did not “state a claim upon which relief can be granted,” which means defendants think that what you are complaining about does not violate the law.

The motion to dismiss is a written request that the judge end your suit, without you getting the chance to get discovery, or go to trial. Attached to the motion will be a memorandum of law which gives the defendant’s legal arguments for dismissing your suit. Each court has different rules about how long you have to respond to this motion, but usually you will have at least two or three weeks to file an opposition to the defendant’s motion to dismiss. The opposition is a memorandum of law that responds to the defendant’s arguments. If you need more time, send the judge a letter explaining why and asking for a specific number of extra weeks. If you can, check the local rules to see if the court has any specific requirements for time extensions. If you cannot find any information, just send the letter and send a copy to the prison officials’ lawyer.

Chapter Seven explains in more detail how to research and write your opposition, so be sure to read it before you start working. After you read the suggestions in Chapter Seven, you may want to try to read all of the cases that the defendants use in their memo. If you read these cases carefully, you may come to see that they are different in important ways from your case. You should point out these differences. You can also try to find cases the defendants have not used that support your position.

To support their motion to dismiss, the prison officials can make all kinds of arguments which have been dealt with in other parts of this Handbook. They may say you failed to exhaust administrative remedies (see Chapter Five, Section A), or that you cannot sue top prison officials who did not personally abuse you (see Chapter Four, Section D). They may claim you sued in the wrong court (“improper venue” – see Chapter Five, Section B) or that your papers weren’t properly served on some of the defendants (see Chapter Five, Section D).

The prison officials may also argue against your constitutional claims. They might say that you failed to state a proper claim because the actions you describe do not deny due process or equal protection, or are not cruel and unusual punishment.Your memorandum of law should respond to whatever arguments the government makes.

Unfortunately, writing a memorandum of law requires quite a bit of legal research and writing. Because time to do this research might be an issue for you, you can prepare for this memorandum before you even receive the motion to dismiss. Research cases that are both helpful and harmful to your case. There is a chance defendants will use some of them and you will have already done a lot of your research.

Defendants might point out something that is wrong with your case that you want to fix, instead of defending against the motion to dismiss. Under rule 15(a) of the Federal Rules of Civil Procedure, you have the right to amend your complaint once, as long as you do so within 21 days of defendants answering or filing a motion to dismiss. If the defendants have already answered, or you have already amended once, Rule 15 allows you to ask the defendants to consent to you filing an amended complaint, or ask the court for permission to amend. Courts are supposed to give you permission “freely” when “justice so requires.” Ask for consent first, and if you don’t get it, file a Motion for Leave to Amend in which you describe your proposed changes or attach the proposed amended complaint.

One thing you will have going for you is that in considering the defendant’s motion to dismiss, the judge must assume that every fact you stated in your complaint is true. The judge must then ask: if all those facts are true, is it plausible that the defendants violated your rights? If any combination of the facts stated in your complaint might qualify you for any form of court action under Section 1983, then the judge is legally required to deny the prison officials’ motion to dismiss your complaint. In making this decision, Courts are supposed to treat unrepresented parties, including prisoners, more leniently that people who are filing a suit with a lawyer. In considering a motion to dismiss, a pro se complaint should be held to less strict standards than a complaint drafted by a lawyer.

It is important to remember in writing your opposition that defendants have to deal with the facts as you put them in your complaint. For example, if you stated in your complaint that you were “severely beaten” by two guards, yet the defendant says in his motion to dismiss that an “inadvertent push” doesn’t amount to cruel and unusual punishment, you should tell the court in your memo that you did not allege an “inadvertent push,” you alleged a severe beating, and that is what the court has to assume is true.

Send three copies of your memo to the court clerk (one will be returned to you to let you know they accepted your papers) and one copy to each defendant’s lawyer. Usually all the prison officials are represented by one lawyer from the office of the Attorney General of your state. The name and office address of that lawyer will be on the motion to dismiss.

In some cases, after the parties exchange memoranda of law, attorneys for both sides appear before the judge to argue for their interpretation of the law. However, when dealing with a case filed by a prisoner pro se, most judges decide motions based only on the papers you send in, not on arguments in person. In the rare case that a judge does want to hear argument, many federal courts now use telephone and video hook-ups, or hold the hearing at the prison. It is quite hard to get a court to order prison administrators to bring you to court, because the PLRA requires that courts use these new techniques “to the extent practicable.”

If the judge does decide to dismiss your complaint, he or she must send you a decision stating the grounds for his or her action. The judge may or may not dismiss your case with leave to amend. Either way, you can appeal from that decision. Part G of this chapter explains what else you can do if the court dismisses your complaint.

Instead (or before) a Motion to Dismiss, you may receive a Motion for Extension of Time or a Motion to Relate from the prison. A motion for extension of time (or “enlargement”) gives the other side more time to file an answer or motion. One extension is usually automatic. If your situation is urgent, write the court to explain the urgency and ask that the prison officials not get another extension.

A motion to relate tries to combine your suit with others which the court is already considering. Check out what the other suit is about, who is bringing it, and what judge is considering it. This could be a good or bad thing for you, depending on the situation. If you think you’d be better off having your suit separate, submit an affidavit or memorandum of law in opposition to the motion to relate. Say clearly how your suit is different and why it would be unfair to join your suit with the other one. For example, the facts might get confused.

Pronunciation: duh-FEN-dent

Sample Sentence

Hear Defendant on YouGlish

Pronunciation (Please note that the word motion is used in the non-legal sense in many of these pronunciation examples)

Sample Sentences

First, the party filing the motion (you can call the party filing the motion the “moving party”), will submit his moving papers, which include a memorandum of law explaining to the Court why he thinks the case should be dismissed.

Second, the opposing party (the party opposing the motion may be called the “nonmoving party”) will then submit an Opposition to the motion to dismiss, arguing why he think his case should not be dismissed.

Third, the moving party will submit a Reply, in which he attempts to rebut the points raised in the Opposition.

After that, the judge might schedule oral argument. The parties (well, their lawyers) will come to court, explain their positions on the motion to dismiss, and answer any questions posed by the judge.

Finally, the judge will decide to grant or deny the motion.

But there could be months between the moving papers and the decision. What happens to the case in the meantime?

We’ll get to the answer in moment, but if you need a background on motions and motions to dismiss, please watch the videos below: