Dynamite dynamite dynamite. This is the lawyer, James, the dynamite audio program. It is the absolute best audio content by New York Business Attorney in both transactional and litigation practice areas. And it is helpful for all industries. Now here’s today’s episode. One more thing. Before we get started, you can reach me online by visiting my website, the lawyer james.com. The lawyer james.com. The lawyer james.com. You can call me at (212) 500-1891. That’s the office (212) 500-1891 (212) 500-1891. You can contact me by email at James at the lawyer. james.com. James at the lawyer, james.com. James at the lawyer, james.com or by text message at (917) 783-3153. Text message (917) 783-3153 that’s (917) 783-3153.

Today. I want to talk about motions to dismiss. I mentioned them a little bit earlier. I think it was in the context of the answer, but before I get into the nitty gritty of the motions to dismiss and take a deeper dive into it, I wanted to talk to you about stipulations now, stipulations, uh, well with respect to an answer, there’s a lot more to get into with the stipulation. So after a complaint is filed, the, the defendant has between 20 and 30 days to file its answer or otherwise respond to the complaint by filing a motion to dismiss. Now that’s true, except, and this happens a lot. The parties agree to a different deadline because in New York Business Attorney, here’s what happened. Here’s what happens. The case gets filed by filing the case gets commenced by filing the complaint. And then if the plaintiff doesn’t do anything, the case just sits there electronically, and it’s not even assigned to a judge.

It just sits there. So the plaintiff has to do two things really to activate the case and get a judge involved. Number one, it has to, uh, serve the complaint, you know, with a process server to, uh, affect service a process and put the defendant properly on notice of the claims. And then once an an answer is filed or at another point in the case, I don’t want to over-complicate this a request for judicial intervention is filed, which is called an RJI. And there’s a number of different reasons why an RJI can be filed. The first is primarily to, to hold and schedule a, the schedule and hold a preliminary conference, which is where the parties get before the court and agree on a schedule. Uh, that’s that’s one way to do it. Another is let’s say the, you know, the defendant does not file an answer and it files a motion to dismiss when it files the motion to dismiss it’s required to file the RGI because then the court, a judge needs to get assigned to the case and involved in order to, to decide the motion to dismiss and see if the case is dismissed, or if it is to continue now, what the parties do in the stipulations.

Sometimes for the savvy plaintiff, it doesn’t want to deal with, with very procedural issues. And if you don’t do this, then the plaintiff is open to getting all sorts of bases for a motion to dismiss. For instance, it is very typical that if a defendant says, Hey, I need more time New York Business Attorney. Can you give me more time? The plaintiff will say yes, but I want you to stipulate to service of process that you properly. You’ll see the complaint that you’re stipulating to jurisdiction of the court, uh, that the court is allowed to hear this dispute and has jurisdiction over you. And the third is that venue is proper in this court. So those three things, if the plaintiff doesn’t insist on the defendant, agreeing and stipulating to those three things, those could all be the basis of emotion. If pro service was not proper file a motion to dismiss based on improper service, even if service is proper and the court doesn’t have jurisdiction, you can file a motion to dismiss based on improper or lack of jurisdiction.

And then if venue is, is not proper, but you’re in the right court, but the venue isn’t proper. And I’ll explain that in a second, you can make a motion to change venue. Now, in terms of, uh, I just want to explain the difference between a venue and jurisdiction and the court. So you can have, at least in New York, you have the Supreme court, which is the court that handles disputes above $25,000. Now in order for, uh, you to be in the proper. And so here the court that’s the court. Now, there are a lot of different locations and a lot of different counties. There’s 70, some odd or 60, some odd counties in New York Business Attorney. And just because you file it in the Supreme court of New York, it can be proper in the, in the right County and it can be improper in the wrong County.

And so this is not incredibly popular, but I have worked on them before a motion to change venue. It’s where the court, uh, most appropriate, where all the witnesses are, where the parties are with the transaction or the breaches occurred and things like that. That’s where you, uh, unless you agree, otherwise, that’s where that’s the court. That that’s the, that’s the most proper venue. I, I can get into it in more detail in a, in a later episode. Uh, now you have, then the stipulation, the parties agree on a date, and it’s very important to say you file a Mo the stipulation says the agreed date is blank date, or more specifically, the stipulation says the parties agreed that the deadline for answering or otherwise responding to the complaint is adjourned, which means extended to blank date. If you don’t say, or otherwise respond, then that leaves the, uh, possibility for the plaintiff.

If you file a motion to dismiss, if the defendant files a motion to dismiss, the plaintiff can come back and say, no, we just agreed to answer you can’t, you can’t file a motion to dismiss. And in fact, that issue just came up recently in a stipulation that I had good, and the stipulation that the plaintiff insisted that we not file a motion to dismiss as a condition to extending our filing deadline, which we agreed to because, uh, to move the case along and because the, there was really no basis, the way that the complainant was styled to file a motion to dismiss. Now, in terms of, uh, motions to dismiss, there are a couple of bases that pre answer motion to dismiss you, file the motion before, before your final, the answer, uh, one is the failure to state a claim for which relief can be granted.

That means that they didn’t properly alleged the elements of the claim. Another one, another basis is the failure to include a responsible party, a liable party of a party that is necessary for, to litigate the issues. Um, another one is, and these are all in, at least with respect to New York Business Attorney, they’re on the CPLR section 32 11. Uh, the one that I find is quite interesting is the motion to dismiss for based on our documentary evidence, documentary evidence section is, is pretty interesting because it addresses, uh, what is like the best document to have like a deed or like an agreement, or like a settlement agreement. What, what doesn’t typically qualify for documentary evidence is a sworn affidavit. And there’s the very interesting sort of line of case law and how it’s developed. And the courts say what is acceptable and what is not acceptable.

There’s also a very interesting motion to make, because a lot of times there’s, uh, there’s, uh, uh, complaints have what I would call the kitchen sink of claims. They file the plaintiff just does a Hodge positive claims because in New York Business Attorney, you can have, uh, alternative pleading. And when you have alternative pleading, you can say, okay, breach contract. But if there’s not a contract, then you know, this results. And the interesting part about that is that the court only allows a breach of contract claim when there’s a contract and any sort of independent non-contractual tore claim will be dismissed as duplicative. Like for instance, it’s very big debt, fraud claims and contract plans are typically duplicative. And the contract a claim will survive a motion to dismiss if it’s properly pled, but the frog claim will typically get dismissed. There are exceptions for it is very, very nuanced and detailed, but it kind of goes beyond the subject, matter of what I’m talking about today. And those are your basic pre answer motions to dismiss. And, uh, the stipulation that addresses the time

You can reach me online by visiting my website, the lawyer, james.com, the lawyer james.com New York Business Attorney. The lawyer james.com. You can call me at (212) 500-1891. That’s the office (212) 500-1891 (212) 500-1891. You can contact me by email at James at the lawyer, james.com. James at the lawyer, james.com. James at the lawyer, james.com or by text message at (917) 783-3153. Text message. (917) 783-3153 that’s (917) 783-3153.