Judge allows a lawsuit against the gun manufacture of the AR15 used in Sandy Hook

[lefteye]

Deleted by lefteye. Frank explained the PLCAA matter thoroughly.

[Mr. Hill]

I suspect that the motion to dismiss specifically addresses how the legally insufficient claims deprived the court of jurisdiction based on federal law. That's just a guess. Maybe a MSJ will resolve. Maybe a trial.

[rickyrick]

Off topic but, the law experts here my know why, but I sat on a jury once and the defending attorney proclaimed, "objection, motion to dismiss based on blah blah blah..." In response to for what it seem was every statement from the prosecutor. The judge said denied every time with a look of frustration on his face.... It was slightly comical to me, but it went on the entire trial.

So based on that experience, every time I here the phrase, motion to dismiss, I automatically assume that it's a procedure that attorneys must ask for.

[Frank Ettin]

Originally Posted by Mr. Hill

I suspect that the motion to dismiss specifically addresses how the legally insufficient claims deprived the court of jurisdiction based on federal law....

Did you read the decision (linked to in post 19? Did you read post 14 (KyJim is a very experienced lawyer)? Did you read post 21?

Indeed at pg 7 of the decision Judge Bellis notes:

...in response to the plaintiffs' argument that the motions to dismiss should be treated as motions to strike, the defendants have reaffirmed that at this juncture, they are solely raising the issue of the court's jurisdiction, not challenging the legal sufficiency of the complaint....

Judge Bellis also cited, at pp 8 - 9, New York v. Mickalis Pawn Shop, 645 F. 3d 114 (2d Cir. 2011) for the proposition that the PLCAA is not jurisdictional.

[Ozzieman]

I'm sure glad we got smart people here.
These legal words hurts my head.

[Mr. Hill]

I indeed did read them. Heck, a whole lot of discovery and additional motions or a trial will illuminate the dark depths of justice to resolve the matter, I'm sure.

[zukiphile]

Originally Posted by RR

So based on that experience, every time I here the phrase, motion to dismiss, I automatically assume that it's a procedure that attorneys must ask for.

In the criminal procedure world, which in my very limited criminal experience moves more quickly than civil matters, the attorney may have been been grasping or leaving a sort of place-marker in the record for later appeal.

In the civil world, in order for a specific court to hear a complaint filed by a plaintiff:

-the court need to have jurisdiction over the person. If I've never had anything to do with Baltimore, and have never been there, and never done any business or injured anyone there, a Baltimore municipal court isn't going to have jurisdiction over my person.

-the court needs to have jurisdiction over over the subject matter of the complaint. If the complaint simply seeks settlement of the issue "Which ice cream is better, vanilla or chocolate?", that will not be part of the court's jurisdiction, even if it is obvious that chocolate is better.

-the complaint needs to describe a claim for which the court can grant a remedy.

-the defendant needs to have had the complaint served on him as the rules require.


In my state, when a complaint does not meet any of those requirements, the defendant, before any other responsive documents are filed should file a motion to dismiss. (It's a document, not just standing before the judge saying "your honor, I move to dismiss").

Since the motion to dismiss should identify a fatal problem with the complaint document itself, there isn't a need for testimony or evidence, so the court and parties don't need to take evidence.

It can be used to save a lot of time and money.