Complaints must contain factual allegations such as these to be considered as having “stated a claim upon which relief can be granted.”įurther, the more factual detail that can be included in the complaint, the better. Perhaps the collision caused the plaintiff to break her leg or worse. Perhaps the defendant ran a red light and collided with the plaintiff’s vehicle or the plaintiff herself. Using the same example as above, the complaint must also include details about how the defendant was negligent, and how this negligence caused the plaintiff’s injuries. Specifically, a factual basis for the claim must be established by the complaint. The complaint must do much more than this. The pleading is insufficient because all it does is, in court parlance, “merely recite bare legal conclusions.” In spite of these lax requirements, however, the above pleading example would be insufficient to defeat a 12(b)(6) motion. These injuries were the result of defendant’s breach of dutyĪs mentioned earlier, Rule 12(b)(6) motions are rarely successful, in no small part because pleading requirements are generally quite liberal.Defendant owed to plaintiff a duty of care.The plaintiff would have to allege all of the elements of negligence and apply them to the defendant, such as the following: In that complaint, the plaintiff must allege all of the elements of negligence, and the elements must be applied to the defendant or defendants.įor example, in the above negligence lawsuit, let’s say that the defendant hit the plaintiff with his car. Here’s what I mean by this: Suppose someone files a complaint for negligence. “Failure to state a claim upon which relief can be granted” can mean a number of things, all of which have to do with what is stated in a complaint.įirst, and most typically, this means that the complaint failed to properly allege one or more of the required elements of an action. Nevertheless, they appear regularly in law school civil procedure exams (and bar exam civil procedure questions), so it’s important to be aware of them. Call 20 to schedule a consultation today.Today, we’ll be covering one of the most important topics in the subject: Federal Rules of Civil Procedure Rule 12(b)(6).įRCP Rule 12(b) pertains to pretrial motions, and 12(b)(6) specifically deals with motions to dismiss for failure to state a claim upon which relief can be granted.Īs a practical matter, Rule 12(b)(6) motions are rarely successful, and when they are, their success usually has more to do with the judge than the law. If you are considering a dismissal action in your divorce case, get expert legal advice before you proceed. In those situations, there are ways to accelerate the refiled petition so that it gets placed on a similar or same case schedule as the case you just dismissed. However, practically speaking, your spouse could just refile the case starting the whole process all over again. However, tactically speaking it is possible to dismiss a divorce case pursuant to Civil Rule 41 if you are the petitioner in the case. If your spouse does not agree, you can not dismiss a case because Washington State is a no fault divorce state. Motions to Dismiss are typically heard on the IC Docket so you would use an “IC Note for Motion Docket” when preparing the motion to be filed.Ĭan I dismiss the case if my spouse doesn’t want to stay married? In divorce cases involving a husband and wife, a motion to dismiss is a request to the court by one party or the other to stop the divorce process and stay married. The same is true for child support cases, third party cases, or any other type of family law case.Ī Motion to Dismiss is the written request by a person to get the court to dismiss the case. If child custody cases, when a case is dismissed it means that child custody doesn’t legally change from what it was before the petition was filed.
In divorce cases, when a case is dismissed it means that you stay married to your current spouse. A criminal case is dismissed when the criminal charges are dropped against a defendant. Understanding what dismissal means in Family Law casesĭismissal is the act of closing a case when the case has not reached its natural conclusion.
What is a motion to dismiss and what does that mean in my divorce case?