How to File a Motion to Dismiss in Georgia

When someone files a lawsuit against you, you have a limited amount of time to respond. You can respond to the substance of the complaint by denying the allegations. You may also file a motion to dismiss. A motion to dismiss asks the court to dismiss the lawsuit typically because the lawsuit was filed in the wrong court or because the allegations in the complaint do not constitute a valid legal claim.

Part 1

Part 1 of 2:

Preparing the Motion

1
Learn Georgia's rules of civil procedure. Read the relevant parts of the Georgia Code of Civil Procedure. This discusses answers and defenses, including grounds for a motion to dismiss and the time limits each must be raised or waived. In general, a motion to dismiss for the following reasons must be included in your first writing to the court or it is waived forever and can never be used as a defense:
- Lack of jurisdiction over the person (the court has no power over the defendant).
- Improper venue (the case was filed in the wrong court location).
- Failure to state a claim (the complaint, even if all facts are true, does not make out a legally-recognizable claim).
- Insufficiency of process (something was defective about the summons).
- Insufficiency of service of process (the summons and petition were not properly given to you).^{[1]XResearch source}
2
Speak to an attorney. The details of when a court lacks personal jurisdiction or when service of process has been insufficient are complicated. Only an experienced attorney can properly analyze the facts of your case.^{[2]XResearch source} Litigants frequently lose cases because they proceed on their own.
- If costs are a concern, be aware that attorneys now provide “unbundled services.” This means that you can hire a lawyer to perform a discrete task.^{[3]XResearch source} Instead of handling the entire case, the attorney will only do the work you give her to do. You can hire an attorney to draft the motion to dismiss.
- To find low-cost legal advice, also visit GeorgiaLegalAid.org. They provide advice and blank court forms to those who meet their income requirements.
- Georgia Legal Aid also provides links to courthouse self-help centers. Be aware that most courthouse self-help centers limit themselves to family law disputes.
3
Consider other methods of responding to a complaint. There are many ways to respond to the plaintiff's complaint. You can file an Answer, in which you admit, deny, or claim lack of sufficient knowledge with respect to each allegation.
- You can also file a cross-claim. With a cross-claim, you may include a claim against any co-party arising out of the same transaction or occurrence that is the subject of the plaintiff's lawsuit.^{[4]XResearch source}
4
Find a form. Some courts may have prepared forms for selected motions or even a “blank motion” form. Look for this on the website to your local court. You can also learn where to locate these forms by contacting your clerk or your local self-help center.
- If no form is available, follow the directions to create your own in a blank word processing document.
5
Insert the caption. Since you are filing this motion in response to the complaint, you can use the complaint to find the caption information.^{[5]XResearch source} Usually, the caption includes the name of the court, the names of the parties, and the case number.
- This information should remain the same in all documents filed in your case, both in content and format. Simply copy the caption of a previous document into your blank word processing document.
Your title should tell the court what the motion is about. Your title should be “Motion to Dismiss.” The title should usually be two lines below the caption, centered, and in bold-face type. Use a prior document in the same court as a guide.
7
Create the body of the motion. In the body, you argue why the complaint should be dismissed. The body will have three parts: the opening paragraph, the relief requested, and then the facts.
- The opening paragraph should identify you as the Defendant and state whether you are represented by an attorney or making this motion pro se. Begin the body by stating, “Now comes Defendant, [insert your name], represented pro se, to file this Motion to Dismiss in the above-captioned action.”
- Next, request relief: you want the lawsuit dismissed. Also state the legal rule that allows lawsuits to be dismissed. For example, you can state, “Defendant asks that the complaint be dismissed according to O.C.G.A. 9-11-12 (2010) due to [insert reason, such as “improper venue” or “failure to state a claim”].”
- Next, set out the facts that allow the court to grant you your motion in numbered paragraphs. There should be a paragraph telling what the plaintiff was required to do by law (for example, methods of proper service) and a separate paragraph telling what the plaintiff actually did (for example, left the summons with the neighbor). Accordingly, you would type something like this, “According to O.C.G.A. 9-11-4(e)(7), in suits involving sums greater than $200, a summons must be delivered to 'defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.' However, Plaintiff merely left the summons on the porch, without speaking to anyone residing there.”
8
Insert a conclusion. Conclude the motion by repeating your request: “Wherefore, Defendant requests that the complaint be dismissed without prejudice.” When a case is dismissed without prejudice, the plaintiff may refile within the statute of limitations period one more time.
- There are very few situations in which you could request that a suit be dismissed with prejudice. If you have settled with the plaintiff, or if you are not the right defendant, then you should ask for dismissal with prejudice.
Begin a new paragraph, and include the statement, “I swear the information contained above is true and correct to the best of my knowledge and belief.” Include a blank line for your signature. Then type your name, address, telephone number, e-mail address, and any other information that will aid the court or another party in contacting you.^{[6]XResearch source}
About 2 lines below the notary block, center the title “Certificate of Service.” Two lines below that, type the following paragraph: “This certifies that on [insert date] I [mailed/personally served/other] a true and correct copy of this document to all persons listed below.” Insert your delivery method and the date you will be sending the document. Enter the name and address of all other parties to the case. If any other party is represented by an attorney, send it to the attorney instead of the party.
11
Sign and date your motion. Go to a notary public to sign your motion. Many banks provide notary service free for their customers. You can also find paid notaries in various businesses, such as some check cashing companies. Many courthouses also have a notary service available for a fee.
- Be sure to bring sufficient personal identification. A driver's license or passport is acceptable.^{[7]XResearch source}
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Part 2

Part 2 of 2:

Filing the Motion

1
Assemble and copy your motion. If you have any attachments to put with your motion, put those attachments behind your motion. Make at least one copy of the entire packet for your records and a copy for each defendant.
- It is best to make several copies for yourself. If the court misplaces its copy then you can easily supply the court with another.
2
Contact the plaintiff and ask if he will acknowledge service. You must serve the motion on the plaintiff. The plaintiff has the option of acknowledging service. This requires that the plaintiff sign an Acknowledgement of Service form in front of a notary.^{[8]XResearch source}
- The Acknowledgement of Service form looks generally like this. Get the form from your court clerk.
- If the plaintiff agrees, then give him a form to sign and have notarized. Once the form has been returned, take it with your copy to the clerk to file.
3
Pick up a Sheriff's Entry of Service. If the plaintiff will not agree to accept service, then you must have the motion personally served. The easiest way is to personally serve it on the defendant using the sheriff. You can also use a professional process server, but not all counties allow them.^{[9]XResearch source}
- The Sheriff's Entry of Service form should look generally like this. Fill in the information for date filed, court, case number, parties, and the plaintiff's address (which you can get from the complaint).
- Attach the Sheriff's Entry of Service to a copy of the motion.
4
File your motion. Take the original motion with all attachments to the clerk of the court that is hearing your case and give it to him/her. This is filing. You must take at least one copy (for the plaintiff) with you.
- You will have to pay a fee to file. In Georgia, the fee If you cannot afford the fee, then ask for a fee waiver form.
- If you would like, you can ask the clerk to stamp all of your copies with the filing date.
5
Serve the motion. All motions must be served on the other party. Give the copy with the attached Entry of Notice to the clerk, who will arrange service with the sheriff.
- When the sheriff serves the motion, he or she will fill out the bottom half of the Entry of Service and will file the original with the court. You will be sent a copy.^{[10]XResearch source}
- If the plaintiff lives in a different county than you do, you will need to have the clerk stamp another copy of your motion as a “second original.”^{[11]XResearch source} You will attach the Sheriff's Entry of Service form to the “second original.”
- Call the sheriff in the county in which the plaintiff lives. Ask the sheriff to serve the motion. Then mail the two copies (with the Entry of Service attached to the “second original”) to the sheriff's office.
6
Wait for the plaintiff's response. The plaintiff is afforded an opportunity to reply to your motion to dismiss. You should be served with a copy after it is filed.
- You will not have a hearing on the motion to dismiss. The Georgia Superior Court Uniform Rules state that only summary judgment motions will have hearings; all other motions will be decided without a hearing.
- The court should notify you of its decision in writing.
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