Motion to dismiss
Good day class, this lecture will be part of the quiz on October 30.
Take note, we are still on the defendant. As I said during our previous discussions, when we
learned civil procedures.
Summons has been issued so the court has jurisdiction and served. What should the defendant
do? He should file his ANSWER. If not, he will be declared in default.
If the defendant doesn’t want to file an answer,he can file a motion to dismiss. Under the 2019
amendment, rule 16 on the motion to dismiss has been scrapped. However,it does not mean
that it is totally loss. That’s why the defendant can still file a motion to dismiss if he does not
want to file an answer. Section 12, rule 15 regarding prohibited motions.
When is motion to dismiss allowed to be filed and on what grounds?- (refers only to motion
to dismiss filed by the defendant).
1. Upon receipt of the summons and if the defendant fails to file an answer, he may file a
motion to dismiss on the following four (4) grounds.
a. The court has no jurisdiction on the subject matter of the claim.- Lack of jurisdiction.
b. There is another action between the same parties with the same cause.- Litis
pendensia???
c. That the cause of action is barred by prior judgements
d. That the cause of action is barred by Statute of limitations/ prescriptions
What is a prescription? It is the period within which to file the case and failure to file results
into losing the right to file it forever.
Take note that these four grounds are called non-waivable grounds. You can raise it anytime
in the proceedings. However, ground 1 can is non-waivable but you may be defeated by
jurisdiction estoppel and latches. Latches- Unreasonable delay on one’s right.
If the court grants the motion to dismiss based on the 4 grounds, this is dismissal with
prejudice. It means that you can no longer file the case.
Can these grounds also be affirmative defenses? Yes. There is no prohibition by law on this
and you may want to use these because you might have a counterclaim. Meaning, you want
the case to be dismissed but you have a case against the plaintiff. Once your case has been
dismissed, you have a counter claim against the plaintiff. On this situation, you can use the
grounds as affirmative defenses.
For now, Litis??? And res judicata will be discussed.
LITIS??? And Res Judicata are the same except for the fact that it LITIS, the other case is still
pending while on res judicata, the first case is over.
LITIS???- There is a pending case. There is always two cases.
- When first case is pending, 2nd case has been filed.
- Identity of parties- same plaintiffs and defendants in first and second cases
- Or it can also be the parties just exchange roles in the two cases ( defendant to plaintiff
and plaintiff to defendant).
Identity means not in literal meaning. Example, plaintiff vs defendant. If one of the parties
dies, and their sons will be the one to be represent, it will still be considered as litis ????. When
we pay identity of parties, it is not literal rather it is identity of the interest they represent.
Identity of subject matter- Should be the same subject matter in both cases
Example: parcel of land as the subject matter.
Identity of the reliefs sought/ Identity of causes of action
Take note: Filing of second case triggers litis ????. Therefore, if you want to file motion to
dismiss, you file it on the second case.
Why do we need to dismiss? If you allow two cases to go together, you might have conflicting
judgements.
Despite the fact that the second case that will be dismissed, this is not always true.
Example: A files a suit for forceable entry( covers LOT A). Second cases, files a case for
recovery of possession and ownership ( covers LOT A). Will there be litis????
In this case, despite the fact forceable entry is physical possession while recovery of
possession is juridical, the reliefts sought are still identical. So this is also classified as Litis???
Will it result into the dismissal of the second case? Not necessarily. General rule, since it is
the second case that gives rise to litis???, automatically it should be the one to be dismissed.
But in the this case, the case that should be retain will be the case that will resolve the issues
between the parties once and for all regardless which case has been filed first or last. In this
case, recovery of possession and ownership will resolve recovery of possession so it will be
retained. The first case will be dismissed.
