Motion to Dismiss

[cemlaw]

What is the name of your state (only U.S. law)? NC

If I have raised an affirmative defense in my answer to a lawsuit (in this case SOL) can I go ahead and file a Motion to Dismiss on that cause now?

I have served them with my Answer, Interrogatories, Request for Admissions, and Request for Production of Documents and they have filed requests for time extensions on all of these. I don't want to drag this out for a year, but I suppose they don't mind.
So again, would it be proper to file a Motion now? And if not now, after they have finally complied with Discovery? If they fail to answer any of my discovery, do I have to file a Motion to Compel before any Motions for Dismissal or Summary Judgment?
Thanks! ... been a long time since I did any of this!

 

[catdsnny]

not sure about your state law, but generally speaking, accelerated judgment can be moved for at any time in the process, even before an answer is filed. if you have an SOL defense make sure you plead it in your answer.

 

[Ronin]

Why go through all the trouble of interrogatories and other requests for info and motions to compel if you raised the Statute of Limitations as an affirmative defense and feel you can already establish grounds for dismissal based upon this?

 

[chuck126]

I am in a different state, but I believe once you file a answer to a complaint, a motion to dismiss becomes moot. Which appears as though that is what you did. I'm not 100% sure on that so you might want to do some research on that. Even though it appears you did the right thing by pleading SOL in your answer as a affirmative defense. I believe though the correct way to respond to the complaint would have been to first file the motion to dismiss the complaint and if you succeeded, then end of story. If the motion to dismiss is denied, then you answer and plead your affirmative defenses such as SOL to the complaint. Then on to discovery. If you have access to a law library and Westlaw, ask the question you posed here on the motion to dismiss on Westlaw for your state to see what kind of an answer you get and when you get the answer post it here so we can all get a more accurate answer. I am curious myself.

 

[Ronin]

After filing an Answer, there is nothing preventing one from filing a motion to dismiss based upon SOL before wasting time with discovery and other actions.

If the motion to dismiss (based upon SOL) is denied, then you answer and plead your affirmative defenses such as SOL to the complaint.

If a motion is dismiss based upon SOL is denied it is moot to subsequently raise SOL again as an affirmative defense since the matter was already ruled upon, and properly objected to if needed.

 

[seniorjudge]

The motion to dismiss should be the first thing you file.

 

[chuck126]

I stand corrected on the SOL in the answer if the motion to dismiss is denied based on the SOL. Mental error on my part. I read in another forum in which a person asked a similar question as cemlaw which was:
"I answered a complaint and filed a motion to dismiss, the Plaintiff failed to respond to the Motion to Dismiss...can I get a Default Judgment because the Plaintiff failed to respond to the Motion to Dismiss"?, and then added the Judge has not responded to my motion to dismiss to date after several months have passed?....the Atty. responded: "once you answered the complaint the Motion to Dismiss became moot"...and then added "check it out for yourself ..... you should find caselaw in your jurisdiction that supports that".
So that is what I was basing my answer/response to cemlaws question. I presume the Atty. who answered the question with 20 yrs. plus experience most likely has the correct answer, but then again?, or am I misinterpreting something here?

 

[seniorjudge]

the Atty. responded: "once you answered the complaint the Motion to Dismiss became moot"...and then added "check it out for yourself ..... you should find caselaw in your jurisdiction that supports that".

I certainly disagree with that.

A motion to dismiss may be filed at practically any stage of the proceedings.

 

[Ronin]

the Atty. responded: "once you answered the complaint the Motion to Dismiss became moot"...

I also disagree with this as the generalized statement that it appears to be.

However, many affirmative defenses are waived if not properly asserted in an answer. In such cases a motion to dismiss based upon a waived defense would be moot.

If one asserts an affirmative defense in an answer that by itself may be grounds for dismissal, it can certainly be raised in a later motion for dismissal.

Thats why a lot of well plead answers cover all the bases to avoid waiver, and keep their options open for a later motion to dismiss should the opportunity arise.

 

[chuck126]

Affirmative Defenses

Based on the answers here, and my research, if a party fails to bring up a affirmative defense in his answer and the pleadings are closed, then to bring it up at a later date is error... correct? I have a Def.'s Atty. claiming res judicata to void my sanctions for discovery violations motion a year and a half into the case?, which the magistrate agreed w/the Def.'s Atty.?, and I filed exceptions to the Magistrates Report, still pending. Any thoughts?

I asked that other Atty. who stated: "that once a answer is filed, a Motion to Dismiss becomes moot", if he had any caselaw cites to support that statement? No response yet?

 

[jdawg83]

SOL must be plead in your initial responsive pleading with any other Affirmative Defenses or it is waived. Motions to Dismiss based off of an affirmative defense must be done before a responsive pleading is filed, or it is allowed after as long as that affirmative defense is listed in your initial answer.

I agree with Ronin, if you file a motion to dismiss due to SOL and it is denied, while you still can put it in your answer, listing it again is redundant, because obviously the Court gave no merit to it the first time, but you should still plead other Affirmative Defenses.

 

[chuck126]

If a affirmative defense is not brought up in the answer, can it be brought up at a later date in a Summary Judgment Motion?

 

[jdawg83]

See Ronin's reply above

 

[chuck126]

Defense based on S.O.L. is normally a affirmative defense which should be raised in answer, but the defense may be asserted in a motion to dismiss if defense appears on the face of a prior pleading.

 

[dcatz]

Assume that the SOL is not pled as an Affirmative Defense (and does not appear on the face of a prior pleading) but expiration of the SOL is revealed by discovery in an action in a state where the SOL is treated as a substantive defense – i.e. expiration of the SOL extinguishes the right and the remedy. Do you think your assertion of waiver holds water?