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law 10 - motion to dismiss - sample answer

Page history last edited by PBworks 15 years ago

#9 Motion to Dismiss

 

student posting #1

 

1. A naked assertion is a declaration that is made emphatically, without any supporting evidence.

 

2. "Failure to state a claim or cause of action" means that there isn't a basis of a lawsuit founded on legal grounds and alleged facts which, if proved, would constitute all the "elements" required by statute.

 

3. "Res judicata effect" is when an issue has already been presented and decided at a before a court and cannot be decided on at another court if the same parties are involved.

 

4. "Absent waiver, defendant must be served with summons and complaint personally" means that before a lawsuit can begin the court must have proof that a defendant is notified of the lawsuit. An absent waiver is a waiver of being served a summons when they are unable to locate the person, personally.

 

5. Title VII. Of the Civil Rights Act of 1964, 42 u.s.c. 2000e. Et. Seq. covers the discrimination on the basis of race, color, religion, sex, or national origin.

 

6. Under Fed. R. Civ. P. 12(b)(6), the complaint’s allegations are

accepted as true, all reasonable inferences are drawn in the light most favorable to the plaintiff, and dismissal is appropriate only if it appears that plaintiff could prove no set of facts that would entitle him to relief.

 

7. What does it mean “district court lacked personal jurisdiction” and how does that occur, in this case, if at all.?

Before the lawsuit can begin the court must have jurisdiction over the defendant -in effect, before the lawsuit can begin-the court must have proof that the defendant was notified of the lawsuit. Therefore, in this case there lacks personal jurisdiction.

 

8. What kinds of facts could Martin have alleged to prove that his employer as “denying him the authority, salary, and privileges commensurate with this position?

Martin should have produced records of fact that would include a journal of incidents (including specific dates, times, names, and affidavits of witnesses). Martin also should have substantiated proof that shows that his pay and assignemnt were minimized based on his race.

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