![]() If the court sustains a demurrer because of the form of the complaint, the plaintiff is given an opportunity to amend the complaint. Demurrers are still used in a minority of states, including California, where a demurrer must take the stance of assuming the truth of the facts stated in the complaint, while it challenges the complaint itself, or a cause of action within the complaint, as a matter of law. Most state court systems have modeled their rules of civil procedure after the FRCP, replacing the demurrer with the motion to dismiss for failure to state a claim. As a result, Federal Rule 12(b)(6) replaced the demurrer with the motion to dismiss for failure to state a claim. The federal court system decided that a written assault on the fabric of a complaint, which requires a response by the opposing party, a hearing, and a ruling by a judge, the same way a motion would, should be referred to, and treated as, a motion. Prior to the trial itself, either party may ask the judge to make a decision regarding urgent matters within the case by filing a motion. Once both of these documents have been filed, the case is considered to be “at issue,” and proceeds through well established procedures. When a case is initiated, the petition (or “complaint”) outlines the issues of the case from the plaintiff’s point of view, and the response (or “answer”) provides the defendant’s view of the matter. This occurred because attorneys came to feel that the demurrer, which requires an immediate hearing and decision, at a point in a case where nothing else triggered a hearing, was irrational. abolished the use of demurrer when the Federal Rules of Civil Procedure (“FRCP”) went into effect in 1938. Motion to Dismissįederal courts in the U.S. It is common, however, for a demurrer to be sustained by a judge, with “leave to amend,” which gives the party who has filed an inadequate complaint or answer to re-write it, correcting the errors. In such cases, a deficient cause of action, or perhaps even the entire complaint, may be thrown out as a result of a demurrer. If, in the complaint, the plaintiff fails to clearly state his claim, or fails to state all of the required elements of his claim, the defendant may challenge the adequacy of the complaint, or a specific cause of action.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |