California Motion by Defendant to Dismiss with Prejudice for Failure to Prosecute

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Multi-State
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US-02698BG
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Description

Rule 41(b) of the FRCP states:


If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule - except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 - operates as an adjudication on the merits.


The following form is a complaint that adopts the "notice pleadings" format of the Federal Rules of Civil Procedure, which have been adopted by most states in one form or another. For example, the Pennsylvania Rules of Civil Procedure state:


Rule 1901. Prompt disposition of matters; termination of inactive cases.


(a) General policy.-It is the policy of the unified judicial system to bring each pending matter to a final conclusion as promptly as possible consistently with the character of the matter and the resources of the system. Where a matter has been inactive for an unreasonable period of time, the tribunal, on its own motion, shall enter an appropriate order terminating the matter.

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FAQ

A demurrer is a challenge to a particular claim that is made in court. A motion to dismiss is when a request is made to drop a court case. A demurrer or a motion to dismiss can be made on various grounds. For example, Bill Cosby's lawyer filed for a demurrer based on the statute of limitations.

A defendant who has been acquitted of a charge cannot be prosecuted a second time for the same conduct. If this happens, the defense can file a motion to dismiss based on double jeopardy.

Defendants may move to dismiss some or all claims but can only make one motion to dismiss, asserting all defenses (other than those in FRCP 8(c)Opens in a new window) that were available when the motion was made (FRCP 12(g)Opens in a new window).

What does a dismissal without prejudice do to the statute of limitations? Nothing. A dismissal without prejudice does not delay, or toll, the statute of limitations. The charge or lawsuit that gets dismissed without prejudice is treated as if it were never filed.

The motion to stay or dismiss is brought pursuant to Code of Civil Procedure § 418.10. CCP § 418.10(a)(2). Caselaw authority holds that if a stay is granted, the California court retains jurisdiction and the California court can order the action resumed in California.

If you decide you want to ask to dismiss the case, you need to decide whether you want the court to dismiss it ?with prejudice? or ?without prejudice." ?With prejudice? means that you cannot re-file your case ever.

A case that is ?dismissed with prejudice? is completely and permanently over. A case will be dismissed with prejudice if there is reason for the case not to be brought back to court; for example, if the judge deems the lawsuit frivolous or the the matter under consideration is resolved outside of court.

Motions to dismiss are filed for a range of reasons, which may include: Statute of limitations expiration: The case does not fall within California's time limit for filing. Lack of subject matter jurisdiction: The court does not have the authority to hear this type of case.

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California Motion by Defendant to Dismiss with Prejudice for Failure to Prosecute