Motion to dismiss

“ Amory, it has come to be settled that on a motion to dismiss, it is the duty of the court to consider whether an asserted Federal question is devoid of merit and unsubstantial, either because concluded by previous authority, or because of its absolutely frivolous nature, and if it is found to be of such character, to allow a motion to dismiss. ”

“ A motion to dismiss therefore cannot be entertained, as it does not disclose a case of exception, and, if a plea in abatement is put in, it must not only make out the exception, but point to the particular court to which the case belongs. ”

“ Under Rule 12 (b) (6) , a plaintiff with an arguable claim is ordinarily accorded notice of a pending motion to dismiss for failure to state a claim and an opportunity to amend the complaint before the motion is ruled upon. [8] These procedures alert him to the legal theory underlying the defendant's challenge, and enable him meaningfully to respond by opposing the motion to dismiss on legal grounds or by clarifying his factual allegations so as to conform with the requirements of a valid legal cause of action. ”

“ With these facts in mind, we come to consider the controversy. At the outset we must dispose of the motion to dismiss, which we have previously said was made at the October term, 1906, and was postponed to the hearing on the merits. ”

“ There is a motion to dismiss upon which we must dispose of the case. The objection which is urged is that there was no statutory authority for this proceeding, and that the assessment was imposed by mere judicial fiat that could not have been anticipated, and that was without warrant of law. ”

“ The defendants in error have moved to dismiss the writ or affirm the judgment. The motion to dismiss is based upon several grounds. The principal and only ground which need be noticed, however, is that the record presents no question of a federal character such as will give this court jurisdiction to review the judgment complained of. ”

“ This was denied him by the judgment of the supreme court of the state, and we have jurisdiction to review that decision. Upon a motion to dismiss we cannot consider the merits of the question on which our jurisdiction depends, and no motion has been made to affirm. ”

“ It is unnecessary to pass upon various other objections to our jurisdiction over the writ, made on behalf of the defendant in error, as it plainly results that the motion to dismiss must be granted, and our order therefore is, writ of error dismissed. ”

“ Two principal causes are assigned in support of the motion to dismiss the writ of error:
1. That the record contains no bill of exceptions nor any agreed statement of facts or any special verdict, demurrer to a material pleading, or demurrer to evidence.
2. That the supposed judgment exhibited in the record is not a final judgment. ”

“ The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.
Mr. Justice BLACK and Mr. Justice DOUGLAS are of the opinion that probable jurisdiction should be noted. ”

“ The power conferred is to impose damages for delay in cases 'where, upon a writ of error, judgment is affirmed in the supreme court. . . .'
It has been decided that where there was no power on a motion to dismiss, to consider whether a case was prosecuted for delay only, that a prayer for dismissal on such ground could not be allowed and damages could not be awarded. ”

“ Recognizing the fact that thereby a federal question is presented, it seems so obvious that it was not the bone of contention,-the principal matter litigated,-but only put into the record for the purpose of an appeal, that it must be adjudged there was color for the motion to dismiss. ”

“ It is not necessary to multiply authorities upon a point so well settled. Neither do we think any of the points made by the appellants, in their brief, in opposition to the motion to dismiss, are well taken. ”

“ If by accident it has been omitted, a motion to dismiss an appeal, allowed in open court and at the proper term, will never be granted until an opportunity to give the requisite notice has been furnished ”

“ We are of opinion that a motion to dismiss the writ of error must prevail since it is settled that a conviction for a criminal, although summary, contempt is for the purposes of our reviewing power a matter of criminal law not within our jurisdiction on error. ”

“ In opposition to the motion to dismiss, plaintiff in error contends that a writ of error is the proper proceeding to bring to this court for review the final order or judgment of a state court in a habeas corpus proceeding. ”

“ The writ of error as issued is on its face for the review of the final judgment, not of the order refusing a rehearing. The judgment is sufficiently described for the purposes of identification. We are of opinion, therefore, that the judgment as entered on the twenty-ninth of May is properly before us for consideration. The motion to dismiss is overruled. ”

“ Under the circumstances, we think the motion to dismiss was improvidently granted, and the order to that effect entered Jan. 16, is, therefore, set aside. The notice of the motion was insufficient and irregular, as it designated no time for the hearing. It is evident, also, that the counsel for the complainant supposed, as he properly might, that he was to have further information of the time when the motion would be called up. ”

“ Before the case begins the defendant makes a motion. When the plaintiff's lawyer has finished his opening, the other side makes a motion to dismiss the case. When he ends his evidence, the other lawyer moves to dismiss. When both sides are through, each moves. When the jury bring in the verdict either side may move, or both when neither is satisfied. All through the trial there are quantities of little motions. Motions to strike out, motions to instruct, motions to make the witness answer a question, motions to make the other lawyer behave. ”

“ Here the jury in the first proceeding had been impaneled before the mistrial ruling, but appellee's motion to dismiss on grounds of former jeopardy was made prior to the impaneling of the second jury. ”

“ McLean et al., 13 How., 150, in which the court said that a motion to dismiss for want of a citation must be made at the first term at which the party appears, and is too late if made at a subsequent term. But the want of a writ of error, such as is prescribed by the act of Congress, stands on different ground. ”

“ It was not considered necessary to pass upon the contentions with respect to the five other counts of the indictment.
A motion to dismiss is made, the grounds of it being: (1) The judgment of the Court of Appeals is reviewable, if at all, only by certiorari. ”

“ Before considering the merits of the controversy, however, it becomes necessary to examine the motion filed by the respondents to dismiss the appeal, which presents a preliminary question, and consequently should be first decided. ”

“ The motions to dismiss must therefore be overruled.
The questions involved are not of a character that we are inclined to consider on a motion to affirm, especially before the record is printed. It will be time enough to consider the objections to the assignment of errors when the cases come on for hearing. The motions to advance the cases cannot be granted upon the showing made. All the motions are consequently denied. ”

“ As in the complaint the plaintiff in error unquestionably set up a right to recover as the result of a judicial sale made under decrees, both of courts of the United States and of a state, Federal questions exist in the record, and the motion which has been made to dismiss is therefore denied. ”

“ The government has moved this court to dismiss the appeals or affirm the judgments for lack of substance and on the ground that the appeals were taken solely for delay. The motion to affirm must be sustained. ”

“ Appellant undoubtedly has the right to dismiss its appeal with the leave of the court, and may renew its motion to that effect, unaccompanied by other matter, and the order of dismissal will be entered. Mr. ”

“ If, on the other hand, this view be not taken, then the mere general statement in the motion to quash, without any specification whatever of the ground relied upon, renders a like conclusion inevitable. ”

“ We look at the facts in the light most favorable to the party opposing the motion, give him the benefit of all reasonable inferences, and grant the motion only if there is no genuine issue as to any material fact, so that the moving party is entitled to judgment as a matter of law. ”

“ The motion, therefore, my lords, appears to me neither founded on facts, nor law, nor reason, nor any better grounds than popular caprice, and private malevolence.
If it is contrary to law to punish without proof; if it is not agreeable to reason that one should be censured for the offences of another; if it is necessary that some crime should be proved before any man can suffer as a criminal, then, my lords, I am convinced that your lordships will be unanimous in rejecting the motion. ”

“ Where the court below has no jurisdiction of the case, in any form of proceeding, the course of this court is to direct the cause to be dismissed, if the judgment or decree was for the defendant or claimant, but if the judgment or decree was for the plaintiff or libellant, the court here will reverse the judgment or decree, and remand the cause, with directions to the court below to dismiss the proceeding. ”

“ It has uniformly been held that error will not lie, without a statutory provision, on a motion for a new trial, to amend the pleadings, or any other motion which depends upon the discretion of the court. ”

“ Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) . “When evaluating cross-motions for summary judgement, each motion is reviewed ‘separately on its own merits to determine whether [any] of the parties deserves judgment as a matter of law.” ”

“ Motions to dismiss are non-enumerated motions, and they may be filed by leave of court in any case on the calendar before the case is reached in the regular call of the docket, and they are entitled to preference on Friday in each week during the sitting of the court, as provided in the twenty-seventh rule, but they do not give either party any right to be heard upon the merits of the controversy. ”

“ It is true that a writ of error does not lie from this court or the courts of appeals to review an order denying a motion for a new trial, nor can error be assigned on such an order because the disposition of the motion is discretionary ”

“ The relief is allowed or refused, according to circumstances; and it is by no means uncommon for the court to refuse to interfere upon motion, in cases where the proceedings are clearly erroneous, and to put the party to his writ of error or other remedy; for the refusal of the motion leaves every remedy, which is of right, open to him. ”