State Court Motion to Dismiss

DEFENDANT'S MOTION TO DISMISS

(State of Texas — [District Court / County Court at Law / Statutory County Court])

TABLE OF CONTENTS

1. Caption
2. Notice of Motion and Hearing
3. Motion to Dismiss

4. Memorandum of Law in Support
   4.1 Procedural Posture and Briefing Schedule
   4.2 Applicable Standards
   4.3 Grounds for Dismissal

5. Request for Oral Argument

6. Prayer

7. Certificates
   7.1 Certificate of Conference
   7.2 Certificate of Service

8. Signature Block

9. Exhibit A — Proposed Order

1. CAPTION

IN THE [________________] JUDICIAL DISTRICT COURT
[________________] COUNTY, TEXAS

[PLAINTIFF NAME], Plaintiff,

v. — Cause No. [________________]

[DEFENDANT NAME], Defendant.

Hearing Date: [________________]
Hearing Time: [________________]
Courtroom: [________________]
Judge: Hon. [________________]

2. NOTICE OF MOTION AND HEARING

TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD

PLEASE TAKE NOTICE that on [Hearing Date] at [Hearing Time], or as soon thereafter as the matter may be heard, in [Courtroom] of the above-entitled court, located at [Courthouse Address, City, Texas], before the Honorable [Judge Name], Defendant [Defendant Name] ("Defendant") will, and hereby does, move this Court for an order dismissing the [Original Petition / Amended Petition] (the "Petition") filed by Plaintiff [Plaintiff Name] ("Plaintiff") pursuant to Texas Rule of Civil Procedure 91a, on the following grounds:

1. The cause(s) of action asserted have no basis in law (Tex. R. Civ. P. 91a.1);
2. The cause(s) of action asserted have no basis in fact (Tex. R. Civ. P. 91a.1); and/or
3. Additional grounds as set forth in the accompanying Memorandum of Law.

The motion is based on this Notice, the accompanying Memorandum of Law, the pleadings and records on file in this action, and any further evidence or argument that may be presented at or before the hearing.

DATED: [________________]

Respectfully submitted,

[FIRM NAME]

By: ______________________________
[ATTORNEY NAME]
[STATE BAR NO. ________________]
[FIRM ADDRESS]
[CITY, STATE ZIP]
[TELEPHONE] | [EMAIL]
Attorneys for Defendant [Defendant Name]

3. MOTION TO DISMISS

Defendant [Defendant Name] ("Defendant"), by and through undersigned counsel, respectfully moves this Court pursuant to Texas Rule of Civil Procedure 91a for an order dismissing the [Original Petition / Amended Petition] (the "Petition") filed by Plaintiff [Plaintiff Name] ("Plaintiff") because the causes of action asserted therein have no basis in law or fact. In support of this Motion, Defendant relies upon the accompanying Memorandum of Law filed herewith and requests that the Court award Defendant its reasonable attorneys' fees and costs incurred in presenting this Motion pursuant to Tex. R. Civ. P. 91a.7.

4. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS

4.1 Procedural Posture and Briefing Schedule

Plaintiff filed the Petition on [Date], asserting claims for [briefly describe claims]. Defendant was served on [Date]. This Motion is filed on [Date], which is within 60 days after the first pleading containing the challenged cause of action was served on Defendant, as required by Tex. R. Civ. P. 91a.3(a).

Briefing Schedule (Tex. R. Civ. P. 91a):

• Motion filed: [Date]
• Hearing (within 45 days of filing; no earlier than 21 days after service): [Date]
• Response deadline (7 days before hearing): [Date]
• Automatic discovery stay: In effect pending resolution of this Motion (Tex. R. Civ. P. 91a.6).

4.2 Applicable Standards

Rule 91a Standard. A cause of action has "no basis in law" if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has "no basis in fact" if no reasonable person could believe the facts pleaded. Tex. R. Civ. P. 91a.1.

Pleading Construction. For purposes of this Motion, the Court considers only the pleadings and any attachments properly subject to judicial notice. The Court may not consider evidence. Tex. R. Civ. P. 91a.6.

Burden of Proof. Plaintiff bears the burden to plead a legally cognizable and factually plausible claim. Defendant need not negate Plaintiff's allegations but must show the petition is defective on its face.

Mandatory Fee Award. The Court must award the prevailing party its reasonable attorneys' fees and costs incurred with respect to the challenged cause of action in the trial court. Tex. R. Civ. P. 91a.7.

4.3 Grounds for Dismissal

A. No Basis in Law — Elemental Deficiency (Tex. R. Civ. P. 91a.1)

Plaintiff's Petition omits essential elements of the alleged [identify cause of action], namely [list missing elements]. Without these allegations, Plaintiff fails to state a claim upon which relief may be granted.

B. Affirmative Bar on the Face of the Pleadings

The pleadings affirmatively establish [e.g., statute of limitations expired on DATE; statutory immunity under Tex. Civ. Prac. & Rem. Code § X.XX], which bars Plaintiff's claims as a matter of law.

C. No Basis in Fact (Tex. R. Civ. P. 91a.1)

Even if the Petition is liberally construed, the factual assertions are conclusory and unsupported by specific, plausible allegations. No reasonable person could believe the facts pleaded.

D. [Additional Grounds — if applicable]

5. REQUEST FOR ORAL ARGUMENT

Pursuant to Texas Rule of Civil Procedure 21(b), Defendant believes oral argument will aid the Court's disposition and therefore requests a hearing at the Court's earliest convenience.

6. PRAYER

WHEREFORE, Defendant respectfully prays that this Court:

1. Grant this Motion and dismiss all claims asserted by Plaintiff with prejudice;
2. Award Defendant its reasonable attorneys' fees and costs under Tex. R. Civ. P. 91a.7; and
3. Grant such other and further relief to which Defendant may be justly entitled.

7. CERTIFICATES

7.1 Certificate of Conference

I certify that on [Date], counsel for Defendant conferred with counsel for Plaintiff regarding the relief requested herein. Counsel for Plaintiff indicated that Plaintiff [is opposed / takes no position / agrees] to the Motion.

7.2 Certificate of Service

I certify that a true and correct copy of this Motion was served on all counsel of record on [Date] in accordance with Texas Rule of Civil Procedure 21a via [e-filing / email / facsimile / certified mail].

______________________________
[Attorney Name]

8. SIGNATURE BLOCK

Respectfully submitted,

[LAW FIRM NAME]

By: ______________________________
[ATTORNEY NAME]
State Bar No. [________________]
[ADDRESS]
[CITY, STATE ZIP]
[TELEPHONE] | [FAX]
[EMAIL]

ATTORNEY FOR DEFENDANT
[DEFENDANT NAME]

EXHIBIT A — PROPOSED ORDER

IN THE [________________] JUDICIAL DISTRICT COURT
[________________] COUNTY, TEXAS

[PLAINTIFF NAME], Plaintiff,

v. — Cause No. [________________]

[DEFENDANT NAME], Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

On this day, the Court considered Defendant's Motion to Dismiss under Texas Rule of Civil Procedure 91a. After considering the Motion, any response, the pleadings on file, and arguments of counsel, the Court finds that the Motion should be, and hereby is, GRANTED.

IT IS THEREFORE ORDERED that all claims asserted by Plaintiff against Defendant are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Defendant shall recover attorneys' fees and costs in the amount of $________ from Plaintiff pursuant to Tex. R. Civ. P. 91a.7.

IT IS SO ORDERED.

SIGNED this ______ day of ________________, 20____.

______________________________
JUDGE PRESIDING