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  1. #1

    Default Motion to Dimiss to Throw Out Untimely Compaint

    It is true judges rarely throw out late claims on their own and the defendant is more likely to allege the plaintiff's complaint is untimely?

    If this is the case, is it more common for the defendant to fill a "Motion to Dismiss" upon receiving the complaint or during the discovery process?

    Thank you.

  2. #2
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    Default Re: Motion to Dimiss to Throw Out Untimely Compaint

    If you're referencing the statute of limitations, raising a limitations issue is an affirmative defense and the burden of proof rests with the defendant. If the defendant chooses not to raise that defense it is deemed waived.

    Court procedures vary by state, and court procedures can affect when you would file a potentially dispositive motion.

  3. #3

    Default Re: Motion to Dimiss to Throw Out Untimely Compaint

    Mr. Knowitall,

    Thank you for your quick response. Yes, I am referencing statute of limitations. Can you refer me to court procedures in California that address when the defense would file a potentially dispositive motion?

    Thank you

  4. #4
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    Default Re: Motion to Dimiss to Throw Out Untimely Compaint

    The court rules are here, with local court rules here, and the primary rule for summary adjudication motions here.

  5. #5

    Default Re: Motion to Dimiss to Throw Out Untimely Compaint

    Mr. Knowitall,

    Thank you for the great references!

    This question is being asked in the context of a product liability case involving negligence that if made public could damage a corporation's reputation.

    Are there occasions when the defense might make a calculated decision not to file a "motion to dismiss an untimely case" in favor of a confidential settlement?

    Knowalittle

  6. #6
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    Default Re: Motion to Dimiss to Throw Out Untimely Compaint

    It's unlikely.

  7. #7

    Default Re: Motion to Dimiss to Throw Out Untimely Compaint

    While it may be unlikely, do you agree it is a possibility given the following facts?

    1) The evidence of negligence would be economically devastating to a 63 billion dollar industry.

    2) The plaintiff has professional credibility with appearances on national television and has numerous media contacts both local and national.

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