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Encyclopedia > Demurrer
Civil Procedure
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In common law civil procedure, a demurrer is a pleading by the defendant that contests the legal sufficiency of the complaint without admitting or denying the allegations therein. It is filed before the answer and can be characterized as the defendant’s way of asking: “so what?” Civil procedure is the body of law that sets out the process that courts will follow when hearing cases of a civil nature (a civil action, as opposed to a criminal action). ... The Federal Rules of Civil Procedure (FRCP) govern civil procedure in the United States district courts, or more simply, court procedures for civil suits. ... The Civil Procedure Rules 1998 came into force in England & Wales on 26 April 1999, largely replacing and significantly overhauling the previous Rules of the Supreme Court (applicable to the High Court of Justice) and the County Court Rules. ... Civil procedure doctrines are rules developed by case law as opposed to being set down in codes or legislation, which, together with Court Rules / Codes, define the steps that a person involved in a civil lawsuit can, may, or can not take. ... In law, jurisdiction (from the Latin jus, juris meaning law and dicere meaning to speak) is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area... Subject matter jurisdiction is a legal term used in civil procedure to indicate that a case must be entered in the proper court of law based on the nature of the claim. ... Personal jurisdiction, jurisdiction of (or over) the person, or jurisdiction in personam is the power of a court to require a party (usually the defendant) or a witness to come before the court. ... Proper venue is one requirement for a court to be able to hear a case. ... A change of venue is the legal term for moving a trial to a new location. ... Forum non conveniens is Latin for inconvenient forum or inappropriate forum. ... In the United States, removal jurisdiction refers to the power of a defendant to move a lawsuit filed in state court to the Federal district court of the original courts district. ... In the law, a pleading is one of the papers filed with a court in a civil action, such as a complaint, a demurrer, or an answer. ... Service of process is the procedure employed to give legal notice to a person (defendant etc. ... Each state has process serving laws, or Rules of Civil Procedure, that govern civil procedure in their courts, or more simply, court procedures for civil suits in their state. ... In general use, a complaint is an expression of displeasure, such as poor service at a store, or from a local government, for example. ... In the law, a cause of action is a recognized kind of legal claim that a plaintiff pleads or alleges in a complaint to start a lawsuit. ... In law, a class action is an equitable procedural device used in litigation for determining the rights of and remedies, if any, for large numbers of people whose cases involve common questions of law and fact. ... The U.S. Class Action Fairness Act of 2005, 28 U.S.C. Sections 1332(d), 1453, and 1711-1715, grants federal courts original jurisdiction over certain mass actions and class actions (forms of civil action) in which the amount in controversy exceeds $5 million, and any of the members... In the common law, an answer is the first pleading by a defendant, usually filed and served upon the plaintiff within a certain strict time limit after a civil complaint or criminal information or indictment has been served upon the defendant. ... An affirmative defense is a defense used in litigation between private parties in common law jurisdictions. ... The reply is a response by plaintiff to defedants answer. ... A Counterclaim is made by the defendant to a civil procedure, in a main actions against the plaintiff or against the plaintiff and other persons. ... A cross-claim is a claim brought against a co-party in the same side of a lawsuit. ... To meet Wikipedias quality standards, this article or section may require cleanup. ... Interpleader is a device allowed in U.S. civil litigation. ... In law, discovery is the pre-trial phase in a lawsuit in which each party through the law of civil procedure can request documents and other evidence from other parties or can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for... In law, interrogatories are a formal set of written questions propounded by one litigant and required to be answered by an adversary, in order to clarify matters of evidence and help to determine in advance what facts will be presented at any trial in the case. ... In law, a deposition is evidence given under oath and recorded for use in court at a later date. ... Default judgment is a binding judgment in favor of the plaintiff when the defendant has not responded to a summons or has failed to appear before a court. ... Summary judgment in U.S. legal practice is a judgment awarded by the court prior to trial, based upon the courts finding that: (1) there are no issues of material fact requiring a trial for their resolution, and (2) in applying the law to the undisputed facts, one party... Voluntary dismissal is when a law suit is terminated by request of the plaintiff (the party originally bringing the suit to court). ... Involuntary dismissal is the termination of a court case despite the plaintiffs objection. ... In law there are two main meanings of the word settlement. ... In legal parlance, a trial is an event in which parties to a dispute present information (in the form of evidence) in a formal setting, usually a court, before a judge, jury, or other designated finder of fact, in order to achieve a resolution to their dispute. ... A party is a person or group of persons that compose a single entity which can be identified as one for the purposes of the law. ... A plaintiff, also known as a claimant or complainer, is the party who initiates a lawsuit (also known as an action) before a court. ... A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute. ... This article or section does not cite its references or sources. ... The phrase voir dire derives from Middle French; in modern English it is interpreted to mean speak the truth and generally refers to the process by which prospective jurors are questioned about their backgrounds and potential biases before being invited to sit on a jury. ... In the common law, burden of proof is the obligation to prove allegations which are presented in a legal action. ... A judgment or judgement (see spelling note below), in a legal context, is synonymous with the formal decision made by a court following a lawsuit. ... Judgment as a matter of law(JMOL) is a motion made by a party, during trial, claiming the opposing party has insufficient evidence to reasonably support its case. ... Renewed judgment as a matter of law (JMOL) is the partner of judgment as a matter of law in American Federal courts. ... Judgment notwithstanding the verdict, or J.N.O.V. for short (English Judgment + Latin Non Obstante Veredicto) is the practice in American courts whereby the presiding judge in a civil case may overrule the decision of a jury and reverse or amend their verdict. ... In law, a motion to set aside judgment is an application to overturn or set aside a courts judgment, verdict or other final ruling in a case. ... It has been suggested that this article or section be merged with Trial de novo. ... In law, a Judicial remedy is the means by which a court, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes some other court order. ... An injunction is an equitable remedy in the form of a court order that either prohibits or compels (restrains or enjoins) a party from continuing a particular activity. ... In law, damages refers to the money paid or awarded to a claimant (as it is known in the UK) or plaintiff (in the US) following their successful claim in a civil action. ... Attorneys fees or attorneys fees are the costs of legal representation that an attorneys client or a party to a lawsuit incurs. ... The American Rule is a rule regarding assessment of attorneys fees arising out of litigation. ... The English Rule is a rule regarding assessment of attorneys fees arising out of litigation. ... A declaratory judgment is a judgment of a court which declares what rights each party in a dispute should have, but does not order any action or result in any legal damages. ... An appeal is the act or fact of challenging a judicially cognizable and binding judgment to a higher judicial authority. ... A writ of mandamus or simply mandamus, which means we order in Latin, is the name of one of the prerogative writs and is a court order directing someone, most frequently a government official, to perform a specified act. ... This law-related article does not cite its references or sources. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... Civil procedure is the body of law that sets out the process that courts will follow when hearing cases of a civil nature (a civil action, as opposed to a criminal action). ... In the law, a pleading is one of the papers filed with a court in a civil action, such as a complaint, a demurrer, or an answer. ... A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute. ... In general use, a complaint is an expression of displeasure, such as poor service at a store, or from a local government, for example. ... In the common law, an answer is the first pleading by a defendant, usually filed and served upon the plaintiff within a certain strict time limit after a civil complaint or criminal information or indictment has been served upon the defendant. ...


Overview

A demurrer is a motion typically filed by a defendant in response to a complaint filed by the plaintiff (a plaintiff may also demur to a defendant’s answer or affirmative defenses, but this is uncommon). A demurrer attacks or responds to the legal sufficiency of the complaint without having to answer its factual allegations. In other words, the demurring party asserts that the complaint would not amount to a legally valid claim even if the factual allegations were true. This article is in need of attention from an expert on the subject. ... An affirmative defense is a defense used in litigation between private parties in common law jurisdictions. ...


Usually, a demurrer attacks a complaint as missing one or more required elements of a claim. For example, a negligence cause of action in a complaint should allege that: 1) the defendant owed a duty to the plaintiff; 2) the defendant breached the duty; 3) the breach caused plaintiff injury; and 4) the plaintiff suffered damage. A defendant could demur by saying that the complaint failed to plead one or all of these essential elements. In tort law, the right to sue and recover damages from another on the basis of negligence, as opposed to numerous other tort theories discussed elsewhere, is based upon proving that the defendant failed to use ordinary care, that is,that degree of care for the protection of the person...


Besides policing poorly written or technically deficient complaints, demurrers may move to dismiss the entire complaint or individual claims in which the stated causes of action are not supported or recognized by law. For example, a complaint for breach of a promise to marry could be met by a demurrer because the law in most jurisdictions expressly prohibits such claims on public policy grounds. In the law, a cause of action is a recognized kind of legal claim that a plaintiff pleads or alleges in a complaint to start a lawsuit. ...


Demurrers are decided by the judge rather than the jury. The judge either grants the demurrer by sustaining it, or denies it by overruling the demurrer. In ruling on a demurrer, the judge is required to accept as true all facts written in a complaint. The judge rules on whether the facts stated or alleged in the complaint, if true, constitute a sufficient cause of action warranting the case proceeding to litigation.


If a judge sustains a demurrer, he or she may grant it either with prejudice or without prejudice. If the demurrer is granted without prejudice, the other party may correct errors and refile the complaint. For this reason, technical errors are often dealt with by the defendant’s counsel simply pointing out the error rather than formally filing a demurrer, and indeed some courts require this as a first step and only permit a demurrer to be filed if the parties cannot reach an agreement on the matter. Demurrers granted with prejudice are rarer, and reserved for when the judge has determined that the plaintiff’s complaint lacks any legal merit even if the stated facts are true.


Federal Courts

In civil cases in the United States district courts, the demurrer was abolished by Federal Rule of Civil Procedure 7(c) and has been replaced by the Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Map of the boundaries of the United States Courts of Appeals and United States District Courts The United States district courts are the general trial courts of the United States federal court system. ... A legal motion is a procedural device in law to bring a limited but contested matter before a court for decision. ...


State courts of the United States

The demurrer motion can be made by the defendant in most U.S. state court systems. For example, demurrers are still used in California and Virginia state court civil practice. The term preliminary objection is used for a similar procedural device in Pennsylvania state court. In physics, motion means a change in the position of a body with respect to time, as measured by a particular observer in a particular frame of reference. ... A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute. ... In the U.S., a state court has jurisdiction over disputes which occur in a state. ... Official language(s) English Capital Sacramento Largest city Los Angeles Area  Ranked 3rd  - Total 158,302 sq mi (410,000 km²)  - Width 250 miles (400 km)  - Length 770 miles (1,240 km)  - % water 4. ... Official language(s) English Capital Richmond Largest city Virginia Beach Area  Ranked 35th  - Total 42,793 sq mi (110,862 km²)  - Width 200 miles (320 km)  - Length 430 miles (690 km)  - % water 7. ... Official language(s) None Capital Harrisburg Largest city Philadelphia Area  Ranked 33rd  - Total 46,055 sq mi (119,283 km²)  - Width 160 miles (255 km)  - Length 280 miles (455 km)  - % water 2. ...


In contrast, in Texas, however demurrers are specifically prohibited. See Texas Rule of Civil Procedure 90 (2006) (“General demurrers shall not be used ——”). Official language(s) None See: Languages of Texas Capital Austin Largest city Houston Area  Ranked 2nd  - Total 268,581 sq mi (695,622 km²)  - Width 773 miles (1,244 km)  - Length 790 miles (1,270 km)  - % water 2. ...


  Results from FactBites:
 
PARTIALLY OVERRULING DEMURRER TO ANSWERS AND DENYING MOTION TO STRIKE ANSWERS (10/23/97) (992 words)
The demurrer to the defenses of unclean hands, unjust enrichment, set off, offset, estoppel, laches, waiver, ratification, in paro delicto, and recoupment is sustained with leave to amend so that defendants may include factual allegations regarding the behavior on the part of the People that would serve as a basis for these equitable defenses.
However, the demurrer to defendants' defense that the FCLAA preempts the relief sought by plaintiffs is overruled with regard to plaintiffs' prayer that defendants be required to fund a corrective public education campaign relating to the issue of smoking and health, administered by a third party.
The demurrer to the defense that the government plaintiffs lack authority to retain outside counsel on a contingency fee basis is sustained without leave to amend based on defendants' concession that this does not constitute a valid affirmative defense.
Highbeam Encyclopedia - Search Results for demurrer (888 words)
In the U.S., demurrers are no longer used in federal procedure (having been replaced by motions to dismiss or motions for more definite statement) but are still used in...
cesser, demurrer, retainer, waiver: attainder, remainder ; tender ; the same ending is in dinner and supper.
set to file a "leave of court" to file demurrer - a motion in which they will ask permission to file a demurrer, which is a waiver of their right to...
  More results at FactBites »

 
 

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