What is needed to file a motion to dismiss?

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What is needed to file a motion to dismiss?

I am being sued in civil court for an old credit card debt. I filed my “answer” and received my Request for Interrogatories and Disclosure from the attorney. On the due date that they requested, I contacted their office and said that I would not be able to get the documents to them that day. I was told no problem as long as they were returned sometime that week. I hand delivered them to the office a few days later and got a receipt from the receptionist. The following day, they filed a Motion for Summary Judgment claiming that I never responded. Is this enough for me to file a motion to dismiss?

Asked on February 2, 2011 under Bankruptcy Law, Arizona

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

No, it would most likely not give rise to a motion to dismiss. A motion to dismiss is appropriate when there is no cause of action or when there is some serious technical difficulty, like a lack of jurisdiction. For something like this, you may be entitled to some sanctions against the other side and/or their lawyer (e.g. you could file a complaint with the ethics board against him), but probably not dismissal of  the complaint. That said, there's little or no reason to not try a motion to dismiss, since you may simultaneously file more than one motion. You should therefore take several tacks: file a motion to dismiss (look through the AZ court rules and match it's grounds as closely as possible to one or more of the rules; look in particular for sanctions for inappropriate behavior), file a motion for any sanctions that might be appropriate, and file and ethics complaint.

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

No, it is not enough to file a motion to dismiss.  A motion to dismiss can be based upon various grounds, some based upon procedure and some based upon the facts.  When you say that the motion is for Summary Judgement (SJ) and based on the fact that you "never responded" what do you mean exactly? Never responded to the discovery demands or the summons and complaint?  I am assuming discovery demands.  You have to put in an Affirmation In Opposition that states exactly what you said here and enclose a copy of receipt.  I would also cross move for debt validation: a copy of the original agreement, a copy of their agreement allowing them to sue you and a copy of the transactional history on the account.  They have to provide this by law.  Good luck.


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