Motion to Dismiss Filing Procedure in Civil Court

**David M** · 02-16-2011, 10:39 AM

My question involves court procedures for the state of: Virginia.

As the defendant in a civil complaint for which the plaintiff has no legitimate cause of action, I wish to file a Motion to Dismiss. I have the proper Motion format but I don't know the procedure to follow for filing the Motion.
The plaintiff has already failed to respond to both a Request for Interrogatories and a follow-up Motion to Compel. Plaintiff also failed to appear at a pre-trial scheduling conference.

**KeyWestDan** · 02-16-2011, 11:47 AM

Wait a flipping minute. How can there have been discovery and a scheduling conference and you are JUST NOW talking about a Motion to Dismiss? You have to file the Motion to Dismiss, another motion, or an Answer in response to the complaint.

If the plaintiff has failed to state a claim, that is raised in a Motion to Dismiss which is filed first, and before any answer. The other grounds are things like a lack of jurisdiction, statute of limitations and other technical defenses which must be raised right away.

If you just think that there is no "legitimate" cause of action, that isn't the same thing as failure to state a claim. Even if it is failure to state a claim, the judge will only dismiss with leave to amend. The plaintiff generally will get three chances to amend a complaint before it is dismissed.

If you want a dismissal with prejudice as a sanction for the discovery failure, that is a different matter.

If there are no disputes of fact, and the case can be decided on law alone, then you could file a motion for summary judgment.

**Mr. Knowitall** · 02-17-2011, 05:41 PM

You need to review the rules of court.

What aspect are you having trouble figuring out? How to file a motion? How to serve the opposing party? How to determine possible hearing dates and notice the motion for hearing? Something else?