A motion to dismiss can be filed by any of the parties to the proceedings, but it’s most commonly filed by a defendant at the beginning of a case. A motion to dismiss is a request for the court to dispose of the case based on the fact that the lawsuit is frivolous or lacks merit.

For example, since Election Day 2020, President Donald Trump and his lawyer, Rudy Giuliani, has alleged that the electoral system was riddled with fraud. Trump’s lawyers filed lawsuits in state and federal courts with little to no evidence or documentation to support these claims. Courts in Michigan and Georgia have dismissed lawsuits filed by the Trump Campaign because the factual allegations in the lawsuit are not backed up with legitimate evidence. (Source: https://www.npr.org/2020/11/10/933112418/the-trump-campaign-has-had-almost-no-legal-success-this-month-heres-what-they-ve).

A motion to dismiss can be filed on a number of grounds pursuant to Colorado Rule of Civil Procedure 12(b). In Colorado, the grounds for a motion to dismiss are:

  1. lack of jurisdiction over the subject matter;
  2. lack of jurisdiction over the person;
  3. insufficiency of process;
  4. insufficiency of service of process;
  5. failure to state a claim upon which relief can be granted; or
  6. failure to join a party.

To survive a motion to dismiss, a lawsuit must contain sufficient factual matter to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In evaluating a motion to dismiss under the Colorado Rules of Civil Procedure, the court must accept all well-pleaded facts as true and must view the allegations of the complaint in the light most favorable to the non-moving party. Hemmann Management Services v. Mediacell, Inc., 176 P.3d 856, 858 (Colo.App.2007). “However, the court is not required to accept as true legal conclusions couched as factual allegations.” Western Innovations, Inc. v. Sonitrol Corp., 187 P.3d 1155, 1158 (Colo.App.2008). Further, the court may dismiss a lawsuit if the substantive law does not support the claims asserted. Western Innovations at 1159.

How do you avoid a dismissal? The easy, quick answer is to ensure that you have evidence to support your claim(s). The party filing the lawsuit has to have sufficient evidence to show that the allegations of the lawsuit meet all of the elements of the claims being alleged. Too often, people rush to court to file a lawsuit without organizing the evidence and evaluating the sufficiency of the evidence.

The legal merits of the Trump Campaign’s legal challenges appeared thin to state and federal court judges alike. Without actual evidence of voter fraud, the Trump legal team made itself vulnerable to challenges under Rule 12(b). Ultimately, the Trump Campaign’s failure to support their lawsuits with valid legal arguments and evidence resulted in courts rejecting the Trump lawsuits as frivolous and without merit. In court, no evidence means no case!

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