#MOTION TO DISMISS SEXAMPLE CODE#
#MOTION TO DISMISS SEXAMPLE TRIAL#

However, if there is a dispositive motion before the court, such as a motion to dismiss or for judgment on the pleadings, which can be resolved without reference to the issue of personal jurisdiction, a court, in the exercise of its discretion, can decide that motion without addressing the jurisdictional issue.15.1 Personal jurisdiction is a threshold issue that should be decided before the court addresses the merits of the claim.

#MOTION TO DISMISS SEXAMPLE TRIAL#

However, since a court’s ability to assert personal jurisdiction over a defendant is dependent upon proper service of process,15 if the defect is one which cannot be remedied, the trial forum may end up outside of Delaware. complaint.14 If the challenge is to a defect which can be remedied, it has no significance to the trial of the case. Lack of Jurisdiction Over the Person.12 This motion may be based upon the lack of power of a Delaware court to compel the appearance of a defendant or upon the insufficiency of process or service of process.13 “Process” refers to the means used to assert jurisdiction over a defendant by compelling him or her to appear in court and to answer a. If there is any question about a court’s jurisdiction, it is to the advantage of the plaintiff to have the issue resolved promptly, since lack of jurisdiction over the subject matter of the action cannot be waived and, even if not raised by a party, can be raised by a court on its own motion and can result in a dismissal at any time, even after an appeal.11

#MOTION TO DISMISS SEXAMPLE CODE#

The Delaware Code provides that “o civil action, suit or other proceeding brought in any court of this State shall be dismissed solely on the ground that such court is without jurisdiction of the subject matter, either in the original proceeding or on appeal,” and that if, within sixty days after the order denying the jurisdiction of the first court has become final, the adversely affected party files in that first court a written election of transfer, discharges all costs accrued in the first court and makes the usual deposit for costs in the second court, the proceeding may be transferred to an appropriate court for hearing and determination.9 Where a court has jurisdiction over some, but not all, of the claims, the court may sever the claims and direct that the claims over which the court lacks jurisdiction be transferred to the appropriate court.10 The basis for the motion may be that the plaintiff has brought an action in state court that is limited by statute or otherwise to federal court 3 that a claim brought in the Court of Chancery may not proceed in that court since the plaintiff has an adequate remedy in a court of law 4 or that a claim brought in a court of law may not proceed because the plaintiff seeks equitable relief that may only be obtained in the Court of Chancery.5 The issue of whether or not a court may exercise subject-matter jurisdiction over an action must be determined in the first instance from the allegations of the complaint, viewed in the light of what the plaintiff actually seeks and not necessarily what relief is pleaded, and it does not depend upon the existence of a sustainable cause of action or the evidence subsequently adduced.6 When determining jurisdiction, the court must accept the material allegations of the complaint as true.7 The existence of subject-matter jurisdiction is determined as of the time of the filing of the complaint, without regard to subsequent events.8Ī successful challenge to a court’s subject-matter jurisdiction will not necessarily result in an automatic dismissal of the action. Lack of Jurisdiction Over the Subject Matter.2 This motion in effect seeks a different tribunal by challenging the power of the court to hear a particular matter. Defenses that may be raised by a motion to dismiss are as follows.

In a civil action, a motion to dismiss a lawsuit may be, and generally is, filed by a defendant (or, if the motion is to dismiss a counterclaim, by the plaintiff) at the time a responsive pleading, such as an answer, is due.1 A motion to dismiss challenges the right of the claimant to prosecute his or her claim due to some deficiency in the pleading, manner of service, or venue.

Motion to dismiss sexample