Advisory to the Pro Se Litigant #9: If Served with a lawsuit, you must respond

If You Have Been Served With A Complaint, You Must Respond In Some Manner If you have been served with a lawsuit, you first need to determine how you want to respond. You have two primary options: a) file an Answer that responds to each statement in the Complaint; b) file a Motion which attacks the legal sufficiency of the lawsuit. (A Motion is a request to the Court). An answer is a factual reply to the lawsuit, generally one that responds to the complaint, paragraph by paragraph. There are nine types of Motions one might file in response to a Complaint are: a) Motion to Dismiss for failure to state a claim upon which relief can be granted b) Motion to Dismiss for lack of jurisdiction over the person c) Motion to Dismiss for improper venue d) Motion to Dismiss for insufficiency of Process e) Motion to Dismiss for insufficiency of service of process f) Motion to Dismiss for lack of jurisdiction over the subject matter g) Motion to Dismiss for failure to join a party under Rule 2-211 h) Motion to Dismiss due to discharge in bankruptcy i) Motion to Dismiss for governmental immunity Each of these motions seeks to dismiss (throw out) the case, effectively allowing the defendant(s) to “win” without having to defend the case itself. A Motion to Dismiss For Failure To State A Claim Upon Which Relief May Be Granted is the Appropriate Response to A Complaint Which Alleges Behavior Which No Relief May Be Granted to the Plaintiff If someone sues you for an alleged “wrong” that is not actually unlawful, you may file a Motion to Dismiss for failure to state a claim upon which relief may be granted. There are four primary reasons what one may want to file such a motion: 1. No Law Violated: If the complaint fails to allege that a law was violated, it is appropriate to file a motion to dismiss. For instance, the facts alleged may amount to a moral or ethical wrong that is not made unlawful by state or federal law. In that instance, dismissal would be appropriate—as courts are only permitted to rule on issues concerning American law. 2. Facts Don’ Violate Law: If the complaint fails to allege facts that, if proven true, would violate the law, it is appropriate to file a motion to dismiss. For instance, it may be that the complaint alleges that a law was violated, but the facts alleged, even if proven true, could not possibly lead to a judge or jury deciding that the law was in fact violated. In that instance, dismissal would be appropriate – as courts are not expected to hear cases where there is no possible hope of recovery. 3. Wrong Defendant: If the complaint alleges that a law was violated and alleges appropriate facts that would violate the law, but sues the wrong defendant, it would be appropriate to file a motion to dismiss. For instance, it may be that the facts may allege a legal violation, but the facts alleged, even if proven true, could not possibly lead to a judge or jury deciding that the defendant is legally responsible for the violation. In that instance, dismissal would be appropriate (at least for that defendant) – as courts are not expected to hear cases where there is no possible hope of recovery. 4. Wrong Plaintiff: If the complaint alleges that a law was violated and alleges appropriate facts that would violate the law, but the plaintiff is not someone with a right to recover under the law, it is appropriate to file a motion to dismiss. For instance, it may be that the facts allege a legal violation, but the facts alleged, even if proven true, could not possibly lead to a judge or jury deciding that the plaintiff is entitled to a recovery – because someone other than the plaintiff is the alleged victim. In that instance, dismissal would be appropriate (at least for the claims brought by the particular plaintiff) – as courts are not expected to hear cases where there is no possible hope of recovery. Additional Motions to Dismiss Are Available to Defendants When the Court in Which Suit Has Been Brought Cannot Legally Provide the Remedy Sought, Courts are prohibited from hearing cases they are not established to hear. Thus, if you are served with a lawsuit before a court which you believe is not empowered to hear the case, you may file one of the following motions: • Motion to Dismiss because of Lack of Jurisdiction over the Person or • Motion to Dismiss because of Lack of Jurisdiction over the Subject Matter Just as Courts (in general) are not authorized to issue decisions on disputes that don’t involve American laws, Maryland courts are not authorized to issue decisions on cases don’t involve Maryland residents, Maryland businesses, or incidents occurring in Maryland. Thus, even if the complaint alleges a law was violated and alleges appropriate facts that would violate the law, but there is no legally sufficient reason why a Maryland court should hear the case, it is appropriate to file a motion to dismiss. For instance, if the alleged wrongdoing occurred outside Maryland and the defendant has had no interactions inside Maryland, nor a resident of Maryland, dismissal would be appropriate. In addition, one should not file in circuit court a case where the district courts have exclusive jurisdiction -- and should not file in district court a case where the circuit court has exclusive jurisdiction. See 4d above. (It should be noted that many judges will sooner transfer a case to a proper jurisdiction than dismiss for lack of jurisdiction. However, as with most complicatd areas of law, case law may be consulted, but no precise result can be guaranteed and you should consider consulting an attorney for further guidance.) Motion to Dismiss for Improper Venue Similarly, even when cases are properly brought in Maryland, they should be brought in the proper county. For instance, a resident of Montgomery County having a dispute with another resident of Montgomery County, concerning a matter occurring solely in Montgomery County, thereby under the laws of Montgomery County, should not bring their dispute to court in another venue, and runs the risks of dismissal for improper venue for that reason. (It should be noted that many judges will sooner transfer a case to a proper venue than dismiss for lack of venue. However, as with most complicated areas of law, case law may be consulted, but no precise result can be guaranteed and you should consider consulting an attorney for further guidance.) Maryland provides for the following optional motions as well: Motion to Dismiss for insufficiency of ProcessWhere there is an important error on the documents served on Defendant(s), such as if it mis-states the deadline to respond to the suit or fails to provide an address with which the defendant can respond, a court may grant defendant’s motion to dismiss for insufficiency of process. Motion to Dismiss for insufficiency of service of processWhere there is an important error concerning how the documents were served, such as if they were handed to a minor child or left with a neighbor, defendant may have grounds for a motion to dismiss. To better understand the Motion to Dismiss for insufficiency of process, please review section 7 above to better understand what is expected of a party serving a defendant. Motion to Dismiss for failure to join a party under Rule 2-211Where there is another person or persons who should have been sued, or joined as a co-plaintiff, Defendant may file a motion to dismiss, arguing that plaintiff failed to sue or join all the right parties—and thus the suit as designed should not proceed. For instance, someone who has a patent on the processing of a product may sue another company for using the same processing without the patent-holders’ consent. However, in such a suit, the patent-holder is required by federal law to include any co-owner as a co-plaintiff -- and failing to do so may be the basis of a motion to dismiss for failure to join a party under Rule 2-211. Motion to Dismiss due to discharge in bankruptcyWhen an individual or company is granted a discharge of past debts through a bankruptcy (which can only be done through the United States Bankruptcy Courts), a plaintiff cannot thereafter recover for those debts. Therefore, a defendant, once being sued for a debt or liability that was discharged through a bankruptcy may ask the court to dismiss the suit. If you have a claim against a defendant who is proceeding in a bankruptcy, you should contact a lawyer or the United States Bankruptcy Court to pursue your rights to recover in that forum. Motion to Dismiss for governmental immunityThe Eleventh Amendment to the United States Constitution, and similar terminology in various state constitutions provide that the government is immune from lawsuits in all areas in which immunity have not been waived. For instance, in the employment law context, the federal government cannot be held financially liable under the Family Medical Leave Act, although it can be liable under Title VII of the 1964 Civil Rights Act.