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What to write in the caption of a civil motion.

Burbank, CA |

A motion is being made to (1) quash service of summons and complaint and to (2) dismiss the complaint for delay of prosecution. What should the caption read? "Notice of Motion and Motion to Quash Service of Summons and Complaint and Dismiss the Complaint for Delay of Prosecution? Should it not read "Notice of Motion[s]..."?

(The legal basis to dismiss is pursuant to §§583.210-§583.250 because Plaintiff has failed to serve the summons and complaint upon Defendant within three years after the action was commenced)

Thank you!

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Attorney answers 3

Posted

Why bother filing any motion? The court will eventually dismiss the case for want of prosecution. Your filing a motion might just alert the Plaintiff and you will get served if the case hasn't already been dismissed.

Asker

Posted

It is too late now to serve. It's beyond the 3 year limitation. And the judge required that we file formal motions on the dismissal issue. How would you make the caption?

Judy A. Goldstein

Judy A. Goldstein

Posted

Copy the caption in the original complaint.

Posted

The caption should read NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF xxxx.

It is a single motion. You shouldn't combine these two requests in the same motion. As I indicated previously, a motion to quash does not constitute a general appearance. You would need to have already made a general appearance in the case (by filing an answer) before you can move to dismiss for failure to prosecute.

If you have to make a motion to quash, it means the plaintiff believes service of the summons was properly effectuated. Therefore, logically, there would not be a good basis to argue for a discretionary dismissal under California Code of Civil Procedure section 583.210. Moreover, you would be giving the plaintiff one or more reasons to argue the exceptions set forth under California Code of Civil Procedure Section 583.240.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

Asker

Posted

Thank you. I have already generally appeared in this case by filing a motion to vacate a default. Does this change your analysis?

Posted

You must do the motions separately. If the motion to quash is granted, the pltf will have to either drop the suit or serve you again. You can then file a motion to dismiss for failure to serve w/in 3 yrs. I wouldnt flag your plan/strategy to the other side or the court at this point. if the judge doesnt want to blow the pltf out on a techicality, he might not grant motion to quash but require you to answer and fight case on the merits.

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