Motion to Dismiss

[JavaManOne]

I purchased your Motion for Summary Judgment and began preparing it to fit my case.

I filed a counterclaim and I'm seeking the judgment on that portion.

However, should I file a separate motion to dismiss the Plaintiff's charge and/or can I blend that into my Summary Judgment as "Motion to Dismiss and Summary Judgment. (That must look dumb) :)

Do you have instructions/and the correct form for the dismissal for purchase?

Please let me know also if this is filed separately but at the same time?

[ohiolandlord]

With the summary judgment motion you should attach an affidavit supporting any facts that you recite in the motion. The affidavit is necessary so that you can swear to the facts that you have laid out in support of your motion.

A summary judgment motion is, in essence, a motion to dismiss. So I don't think that you would want to file a motion to dismiss in addition to the summary judgment motion.

[ohiolandlord]

Also, with a summary judgment motion, you are basically telling the judge that (1) either there are no facts in dispute or (2) given the opposing party's facts, the case should still be dismissed because you will still prevail.

[JavaManOne]

So in essence, I am arguing against the Plaintiff's claim and demonstrating my counterclaim in the same motion?

Plaintiff broke the lease and is claiming, up to this point, eight months rent but he never tried to lease the residence in addition to making some damage claims.

This is one angry fellow with no case, there was no damage and his claims are frivolous.

I will work on this further. Thanks

[ohiolandlord]

You would argue that they failed to mitigate their damages by not trying to re-rent the premises. You would offer evidence of their failure to rerent the premises through affidavits and other documents so indicating. This doesn't defeat their claim entirely but just goes to the issue of what their damages are.