Trying to find out when there is a hearing for motion to dismiss, how is it conducted ? Does the attorneys for both the plaintiff and defendant go before a judge in court or is it done electronically ?
A motion to dismiss, if granted, concluds the case before the court. That's why the court has to consider it carefully. It is conducted in court before a judge. It is rarely done on, what is called, the judge's motion calendar, where the judges hear matters taking no more than 5 minutes. It usually is specially set. It means that you will have to call the judge's assistant for available dates, confer with the other side to determine when they are available. When you agree on the date, notify the judicial assistant that you agreed on the date, so s/he can put it on the judge's calendar. Then do a notice of hearing, serve it on the opposing counsel, and file it with the court. Do not forget to send a courtesy copy of the notice of hearing, along with the motion to dismiss, to the judicial assistant.
Workers' Compensation Lawyer
Hearings on motions to dismiss are conducted by the Judge according to that Judge's practice. In Circuit and County Court in Miami, that usually means that the matter is set for hearing on the Motion Calendar and the parties through counsel go to the Judge. I guess there are Judges who will rule on the pleadings themselves if they believe that they have sufficient information without live argument of counsel. There are courts, like worker's compensation, where there rarely are live hearings on motions such as this, the court rules on what has been filed. You need to discuss your concerns, if any, with your attorney or contact an attorney to review your case.
As my colleagues have already stated here, a Motion to Dismiss is conducted before the Judge, with both attorneys (or parties, if not represented) attending. If a party does not show, the Judge may rule against him/her, if they received proper notice of the hearing.
When ruling on a Motion to Dismiss, the Judge determines whether the Complaint is legally sufficient (that is, did the Plaintiff allege all of the elements of the cause of action). A Motion to Dismiss is not the vehicle to argue the truth or falsity of the allegations of the Complaint, only whether the Plaintiff has properly alleged his or her claim.
I hope this helps.
This is not intended to constitute legal advice and does not create an attorney/client relationship, it is intended for informational purposes only.