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  1. #1
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    Question Motion to Dismiss vs. Motion to Strike

    My question involves court procedures for the state of: Arizona

    I am curious, when a counter claim is filed containing multiple clauses which are shams, while others simply fail to meet the jurisdictional elements (or state a cause on which relief can be granted), is the best approach to file BOTH a Motion to Dismiss AND a Motion to Strike (i.e. have dismiss address each claim, and the strike address just the sham claims), or first do one, and if it's denied, do the other?

    Also, how can one prove a counterclaim is a sham for something like Defamation? It's easy to prove the claim doesn't meet the standard (i.e. they just claim defamation with NO examples of it) - but how does one prove something like that is a sham? I can't seem to find any standards.

    Also, if a Motion to Strike is denied, can one then file a Motion to Dismiss before needing to file an answer?

  2. #2
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    Default Re: Motion to Dismiss vs. Motion to Strike

    I believe that if a motion to dismiss is pending, no answer needs to be filed until the court rules on the motion.

    I would ask to strike the defamation if all they say is conclusionary statements in their counterclaim....you don't have to prove its a sham -- if they dont plead any facts, the claim should be stricken. Its the same as in your complaint ...

  3. #3
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    Default Re: Motion to Dismiss vs. Motion to Strike

    If you're representing yourself in court, you need to read and understand the court rules.

    Assuming you're in superior court and no local rules affect these provision, the most pertinent rules appear to be:
    Quote Quoting Rule 12. Defenses and Objections; When and How Presented; by Pleading or Motion; Motion for Judgment on Pleadings - Rule 12(a). When Presented
    (1) A defendant shall serve and file an answer

    (A) within twenty days after the service of the summons and complaint upon the defendant, except as otherwise provided in Rules 4.2(d) and 4.2(m) of these rules; or

    (B) if service of the summons has been timely waived on request under Rule 4.1(c) or 4.2(c), within sixty (60) days after the date when the request was sent, or within ninety (90) days after that date if the defendant was addressed outside any judicial district of the United States.
    (2) A party served with a pleading stating a cross-claim against that party shall serve and file an answer thereto within twenty days after being served. The plaintiff shall serve and file a reply to a counterclaim in the answer within twenty days after service of the answer or, if a reply is ordered by the court, within twenty days after service of the order, unless the order otherwise directs.

    (3) Unless a different time is fixed by court order, the service of a motion permitted under this rule alters these periods of time as follows:

    (A) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within ten days after notice of the court's action; or

    (B) if the court grants a motion for a more definite statement, the responsive pleading shall be served within ten days after service of the more definite statement.
    Quote Quoting Rule 12. Defenses and Objections; When and How Presented; by Pleading or Motion; Rule 12(b). How presented; motion to dismiss
    Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, crossclaim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

    1. Lack of jurisdiction over the subject matter.

    2. Lack of jurisdiction over the person.

    3. Improper venue.

    4. Insufficiency of process.

    5. Insufficiency of service of process.

    6. Failure to state a claim upon which relief can be granted.

    7. Failure to join a party under Rule 19.
    A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. The defense numbered 3 may be made only if the action cannot be or could not have been transferred to the proper county pursuant to A.R.S., § 12-404. If, on a motion asserting the defense numbered 6 to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
    Quote Quoting Rule 12. Defenses and Objections; When and How Presented; by Pleading or Motion; Rule 12(f). Motion to strike
    Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these Rules, upon motion made by a party within twenty days after service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from a pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

  4. #4
    Join Date
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    Default Re: Motion to Dismiss vs. Motion to Strike

    Mr, thanks for taking the time to reply. The problem is the question has still not been answered (at least I can't derive an answer from what I've seen). Both a motion to dismiss for failure to state a claim and motion to strike seem to carry the same weight and are presented as pursuable in parallel, but not one after another. This is my core confusion; how do I pursue action against something containing pleadings that can both be dismissed for failure to state a claim AND stricken for being scandalous, immaterial, etc.? How can I leverage these two "options" for the optimal result?

    Note this is in Federal Court, but the rules (Fed.R.Civ.P an LRCiv) aren't any different as it relates to application (and the core question). I think this all comes down to technique. AFAIK the rules don't allow one after the other, it's one or the other - but the complexity is choosing the best one for the highest probability result while also taking action to hold the opposing side accountable for sham and sanctions (seriously, their pleadings are absurd to the point the Court should be all over them).

    I do wonder, could one file a Motion to Dismiss AND Motion to Strike under one motion attacking each pleading as meeting the qualifications for BOTH dismissal and striking under the rules?

    Hmmm...

  5. #5
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    Default Re: Motion to Dismiss vs. Motion to Strike

    Do you not understand the significant difference between actions in state and federal court and believe the same rules and procedures apply in both courts? If you do understand the difference, why did you choose to waste our time by failing to identify this as a federal court matter? If you don't, hire a lawyer - this is beyond you.

    I suggest checking at the federal courthouse or a local law school library for a guide to federal civil procedure before trial, and reading the relevant portions, then checking local court rules to make sure that there are no differences, and proceeding based upon that research.

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