Filing motion to dismiss with a question:

[juststartingout]

the plaintiff claims that my company (inc), my private person dba company, and 2 other companies owe her for damages done to her property. out of all the listed defendants, none of us have set foot on her property to do any work. rather - it was a contractor of our inc. that did damage. his contract w/ us states that he is respbl for all damages.

here is what my state's Rules of Civ. Procedure say.. am interpreting this correctly? I want to quote the correct code in my motion to dismiss the case. Also, is motion to dismiss to be filed before the court date or is it something that we go to court on the day of and reveal?

12.02 How Presented
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, 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:

(a) lack of jurisdiction over the subject matter;
(b) lack of jurisdiction over the person;
(c) insufficiency of process;
(d) insufficiency of service of process;
(e) failure to state a claim upon which relief can be granted; and
(f) failure to join a party pursuant to Rule 19.

is the (b) lack of jurisdiction meaning the courts have no jurisdiction over the person (us) b/c she has no grounds to sue any of the people listed as defendants?

and what is misjoinder of parties. i'm reading about it but not totally understanding that that techinical term means to know if/how it applies here.

[weishaupt1776]

A civil action at law can only be a contract dispute or tort.
One Half of The Cause of Action(CoA) has to show that a duty was breached.
The duty has to show on the ctrct & has to have been agreed upon by both parties for a cntrct disp.

A tort breach of duty(BoD) can only be statutory or common law.

The other half of the CoA is damages. Sounds like they have the dmgs part & may even be able to show it, but that is only 1/2 of a cause of action.
The Meatloaf tune does not apply!(2 out of 3 ain't bad)

If they can't show that a stat, cmn law or ctrctl duty was breached, then mtn to Dismiss(MtD) for failure to state a cause of action.

If they didn't join your sub ctrctr, the MtD for failure to join an indispensable party sounds good, but I would state thsat they joined the wrong party (misjoinder).They are not part of your cmpny. They are subbing.

[juststartingout]

thanks! that's what I was thinking and you put it in words I could understand!

it really wouldn't matter to do it the day of or file ahead would it?

[weishaupt1776]

I'm big on making a written record & filing it, then serving the adversary.
Check the rules.
Depending on how confident you are, and if you are crunched for time, just show up and ask the plaintiff if you were ever a party to this company.
When?
Where?
Who was there when I became a party to this company?
How? Was there a contract?
Why? Are you coming after me, I didn't sign up for this.
I move this court to dismiss for failure to join the proper party.
If it falls on deaf ears ask this is civil or criminal.

Then ask if it is a ctrct dispute or a tort?
After that ask if their complaint is a valid cause of action
Then ask how many elements are their to a valid cause of action (breach of duty & damage--DON't TELL THEM)
Ask them if you've breached a duty
What are the facts?
Where was the duty created?
When?
Who was there when this alleged duty was created?
Is there any evidence that this duty was breached?