RULE 16 – MOTION TO DISMISS
RULE 16 – MOTION TO DISMISS
Motion to dismiss must be filed Motion to dismiss must be filed
•
• within within 15 15 days days after after service service of of summons, summons, ANDAND •
• before before filing filing the ansthe answer twer to the o the complaint complaint of plof pleading assereading asserting ting a cla claim.aim.
GROUNDS FOR MOTION TO DISMISS: GROUNDS FOR MOTION TO DISMISS:
1.
1. Lack of Lack of jurisdictijurisdiction over on over the persthe person of on of the defendantthe defendant 2.
2. No jNo jurisdiction urisdiction over over the subjthe subject ect mattermatter of the claimof the claim
3.
3. Improper Improper venue venue (court (court may may not not dismissdismiss motu propiomotu propio case on improper venue.) case on improper venue.) 4.
4. Plaintiff Plaintiff has has no no capacity capacity to to suesue 5.
5. Litis Litis pendentiapendentia
Requisites for Lis Pendens (
Requisites for Lis Pendens (or is it Litis Pendentia?or is it Litis Pendentia?)) a.
a. Same partiSame parties or es or at least at least represent represent same intersame interestest b.
b. Same riSame right assertght asserted and ed and same rsame relief prelief prayed forayed for c.
c. Relief Relief founded founded on on the the same same factsfacts d.
d. Identity in these Identity in these particulars sparticulars should be such that if thould be such that if the pending case hashe pending case has already been disposed of it could be pleaded as
already been disposed of it could be pleaded as a bar to present litigationa bar to present litigation e.
e. Claim iClaim is barred by s barred by prior judgment prior judgment and statute of and statute of limitatilimitationsons 6.
6. Res Res judicatajudicata or prescriptionor prescription
Requisites of Res Judicata Requisites of Res Judicata a.
a. Former Former judgment judgment or oror order mder must be ust be finalfinal b.
b. Court rCourt rendering endering judgment must judgment must have jurhave jurisdiction isdiction over the over the parties parties and subjectand subject matter
matter c.
c. Judgment Judgment must must be be on on the the meritsmerits d.
d. Identity of Identity of parties, parties, of subject of subject matter and matter and causes of causes of actionaction 7.
7. Pleading Pleading states states no cno causes auses of of actionaction 8.
8. Claim Claim has has beenbeen PPaid,aid, EExtinguished,xtinguished, AAbandoned orbandoned or WWaivedaived 9.
9. Claim Claim is is unenforceableunenforceable under the provisions of the statute of fraudsunder the provisions of the statute of frauds
10. Condition precedent has not
10. Condition precedent has not complied withcomplied with
Evidence must be adduced in order to prove complied of fact raised in a motion to Evidence must be adduced in order to prove complied of fact raised in a motion to dismiss. Such evidence shall be reproduced automatically if the
dismiss. Such evidence shall be reproduced automatically if the case goes on case goes on trial.trial.
Resolutions of Motions: Resolutions of Motions:
1.
1. Dismiss Dismiss the action the action – final – final act thus act thus appealableappealable 2.
2. Deny the motion to dismDeny the motion to dismiss – interlocutoriss – interlocutory hence not appealable except byy hence not appealable except by certiorari under Rule 65
certiorari under Rule 65 3.
3. Order Order the the amendment amendment of of pleadingpleading
IF the motion is denied then the movant has the balance of the period to file a IF the motion is denied then the movant has the balance of the period to file a responsive pleading to file his answer, but it should not be less than 5
responsive pleading to file his answer, but it should not be less than 5 days.days.
Motion to dismiss granted based on the following is a bar from refilling of the Motion to dismiss granted based on the following is a bar from refilling of the same action
same action 1.
1. Action Action is is barred barred from from prior prior actionaction 2.
3. Claim is unenforceable 4. Res judicata
If a motion to dismiss is based on failure to state cause of action, the rule is – if detect may be corrected by amendment, court should allow amendment; however of plaintiff cannot or does not amend, dismissal is with prejudice.
Grounds for motion to dismiss may be pleaded as an affirmative defense during trial even if the motion to dismiss has been denied.
The dismissal of the complaint shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer.
A motion to dismiss on the ground of failure to state a cause of action in the complaint must hypothetically admit the truth of the facts alleged in the complaint. The admission, however, is limited only to all material and relevant facts which are well pleaded in the complaint. The demurrer does not admit the truth of mere epithets charging fraud; nor allegations of legal conclusions; nor an erroneous statement of law; nor matters of evidence; nor to legally impossible facts.
Note from Regalado:
• If the same motion also raised other grounds or invoked some affirmative relief
which necessarily involves the exercise of jurisdiction of the court, such special appearance will be of no avail and the party is thereby deemed to have submitted himself to the jurisdiction of the court.
• Where summons was not served on two of the defendants and a lawyer filed, in
their behalf but without their authority, a motion for extension of time to answer the court does not acquire jurisdiction over said defendants.
• Where a party invokes the jurisdiction of a court to obtain affirmative relief and
fails, he cannot thereafter repudiate such jurisdiction.
• It has been held that even if the claim in the complaint was below the
jurisdictional limit for the then CFI, if the defendant, instead of moving to dismiss, filed a counterclaim for P12,000 which was then within the exclusive original jurisdiction of said CFI, such counterclaim cured the defect. It is submitted, however, that said resolution, under the facts therein, was more properly sustainable under the principle of estoppel by laches on the part of the defendant, as discussed in the preliminary chapter of this book, and which principle was also relied on by the Supreme Court in its aforesaid resolution in that case.
• Where the owner of a condominium corporation sold a unit thereof on
installments with reservation of ownership until the price is fully paid, and the buyer defaults, the courts, and not the SEC, have jurisdiction over the nature of the action because the owner remains as stockholder for the unit sold, hence no intra-corporate issue is involved. Xxx An action to compel a corporation to issue shares of its capital stock in payment of its contractual obligation is and undertaking in favor the plaintiff will not be dismissed on the ground that the court has no jurisdiction over the nature of the action since such situation does not involve an intra-corporate matter contemplated in PD 902-A and is not within
the jurisdiction of SEC. xxx However, an action to compel the defendant corporation to render an accounting and distribution of the shares of stock, with the dividends due thereon, of plaintiffs’ predecessor-in-interest is an intra-corporate conflict and is not within the jurisdiction of the courts but the SEC.
• Where a motion to dismiss for improper venue is erroneously denied, the remedy
is prohibition.
• Where the plaintiff is not the real party in interest, the ground for the motion to
dismiss is lack if cause of a ction.
• Res judicata, as a ground for dismissal, requires a previous final judgment in a
case prosecuted between the same parties involving the same subject-matter and cause of action.
• If the allegations of the complaint, or evidence presented, clearly indicate that the
action has prescribed, or where there is no issue in fact as to prescription, the defense of prescription cannot be invoked against the State.
• Where the plaintiff has not exhausted all administrative remedies, the complaint
not having alleged the fact of such exhaustion, the same may be dismissed for lack of cause of action.
• Same doctrinal rules will apply where the case was covered by the Katarungang
Pambaragay Law (PD 1508) and not excepted from the compulsory process of arbitration required therein as precondition for filing a complaint in court.
• The complaint may be dismissed where the complainant, after due notice,
willfully fails to appear on the date set for mediation, conciliation or arbitration.
• A compromise of the controversy is not permitted by law, as where it involves
civil status, validity of marriage or legal separation, grounds for legal separation, future support, jurisdiction and future legitime! family relations shall include those:
o Between husband and wife o Between parent and child
o Among other ascendants and their descendants; and o Among brothers and sisters.
• Failure to allege in the complaint that earnest efforts had been made by the
plaintiff before filing the action is not a ground for a motion to dismiss
o if one of the parties is a stranger or
o where the suit between collateral relatives who are not brothers or sisters
and, therefore, not members of the same family.
• The doctrine of forum non conveniens us bit a ground for a motion to dismiss. • The omnibus motion rule provides that defenses or objections not pleaded either
in a motion to dismiss or in the answer are deemed waived, except objections specified therein which are considered not waivable.
• Lack of jurisdiction over the subject-matter may be invoked as a defense at any
stage of the action.
• An action cannot be dismissed on the ground that the complaint is vague or
indefinite. The remedy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery.
• Courts will still decide cases, otherwise moot and academic, if
o An exceptional character of the situation and paramount public interest is
involved
o The constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar and the public
o The case is capable of repetition yet evading public review.
• An order denying a motion to dismiss is interlocutory and not appealable! but
an order granting a motion to dismiss is final and appealable.
• While an order denying a motion to dismiss is interlocutory, and non-appealable,
if the denial was with grave abuse of discretion or is without or in excess of jurisdiction, prohibition will lie! Certiorari and prohibition are proper remedies
from such order of denial.
• The plaintiff must move for leave to amend the complaint before the dismissal
order becomes final.
• The action cannot be refilled if it was dismissed on any of these grounds:
o Res judicata; o Prescription;
o Extinguishment of the claim or demand; and o Unenforceability under the Statute of Frauds
• A motion to dismiss is not a responsive pleading, hence the filing thereof does
not preclude the plaintiff from doing what he can lawfully do before the defendant files his answer, i.e. amend his complaint.
• Affirmative defenses:
o Fraud
o Illegality and estoppel
o And by jurisprudence, ultra vires acts and unconstitutionality
RULE 17 – DISMISSAL OF ACTION
Plaintiff may cause the dismissal of an action by filing of a notice thereof before the service of the answer or of a motion of summary judgment. Such dismissal is without prejudice except:
1. It is stated in the notice that dismissal is with prejudice
2. Plaintiff has once dismissed in a competent court an action based on the same claim
(TWO-DISMISSAL RULE)
Dismissal of the action does not count as a bar to the institution of an action by the defendant which he could have brought as a cross claim or counter claim.
*National Coconut Corp. v. Kalaw, et al., 94 Phil 282 (1954) – When two dismissal rule does not apply. Rule 17 contemplates a case wherein the first action was dismissed finally, followed by the dismissal of a second action base on or including the claim covered by the first action. The Rules does not apply to a situation where the first action is still pending, and the claim involved was merely reinstated in the pending first action.
If a counterclaim has been pleaded before the plaintiff’s motion to dismiss, dismissal is only limited to the complaint.
Dismissal due to the fault of the plaintiff may be motioned by the defendant or upon court’s own
order, such is with prejudice to filing a new action.
Instances of plaintiff’s own fault (hence, dismissal is with prejudice to the filing of a new action):
1. Failure of the plaintiff to appear without justifiable cause on date of presentation of evidence (does not apply to probate of wills)
2. Failure of the plaintiff to prosecute his action for an unreasonable length of time 3. Failure of plaintiff to comply with the Rules of Court or any court order
The same rules apply to counter claim cross or third party complaint but must be made before a responsive pleading or motion for summary judgment is served or if none, before introduction of evidence.
However, the dismissal of a petition for probate of a will in a previous special proceedings due to the failure of the petitioner and his counsel to appear on the date and time set for the hearing thereof is not an adjudication on the merits.
Notes from Regalado
• Dismissal is effected not by motion but by mere notice of dismissal which is a
matter of right! such dismissal is without prejudice, except:
o Where the notice of dismissal so provides
o Where the plaintiff has previously dismissed the same case in a court of
competent jurisdiction; and
o Even where the notice of dismissal does not provide that it is with
prejudice but it is premised on the fact of payment by the defendant of the claim involved.
• The two-dismissal rule requires that both dismissals are granted by a court of
competent jurisdiction.
• Where the plaintiff moves for the dismissal of his complaint to which a
counterclaim has been interposed, the dismissal shall be limited to the complaint. Such dismissal shall be without prejudice to the right of the defendant to either prosecute his counterclaim in a separate action or to have the same resolved in the same action.
• Secs 1 and 2 of this rule refers to the dismissal of the entire case.
• The dismissal of the case for failure of the plaintiff to appear at the trial, to be
valid, now requires that
o His non-appearance is without justifiable cause, and
o Such prejudicious absence is limited to the date or dates when the
presentation of his evidence in chief on the complaint was scheduled or expected.
! since the plaintiff’s presence is now required only during the presentation of
defendant or the other parties, or even at the rebuttal or subsequent stages of the trial, is not a ground for dismissal.
• When the dismissal does not contain any condition at all, it has the effect of an
adjudication on the merits as it is understood to be with prejudice.
• Failure to comply with a court order is a ground for dismissal of the case.
• Unjustifiable inaction on the part of the plaintiff to have the case set for trial is
ground for dismissal for failure to prosecute.
• It is plaintiff’s failure to appear at the trial, and not the absence of his lawyer,
which warrants dismissal.
• A motion for reconsideration of an order dismissing the case for failure to
prosecute need not be accompanied by affidavits of merits.
• The principle that the dismissal of the complaint carries with it the dismissal of
the counterclaim applies to instances where the court has no jurisdiction over the main case.
RULE 18 – PRE TRIAL
PRE-TRIAL – a MANDATORY conference and personal confirmation before the judge between the party litigants and their respective counsel.
Pre-trial is done after the last pleading is served and filed, plaintiff must move ex parte that case be set for pre-trial.
Court considers the following during pre-trial: a. Possibility of amicable settlement or arbitration b. Simplification of the issues
c. Amendments to the pleadings
d. Stipulations or admissions of facts and documents e. Limitation of number of witness
f. Preliminary reference of issues to a commissioner
g. Propriety of judgment on the pleadings, summary judgments, or dismissal of action
h. Advisability or necessity of suspending the proceedings i. Other matters for the prompt disposition of the action
Non-appearance during pre-trial must be for valid cause shown or if the party is represented by a person authorized by him in writing to enter into an amicable settlement, submit to alternative modes of dispute resolution or enter stipulations and admissions.
Failure to appear during pre-trial will cause:
If defendant – plaintiff may be allowed to present evidence ex parte and the Court to render judgment on the basis thereof.
Parties must file a pre-trial brief and ensure receipt of such at least 3 d ays before date of pre-trial.
The pre-trial brief shall contain, among others:
a. A statement of their willingness to enter into an amicable settlement b. The summary of admitted facts and proposed stipulation of facts c. The issues to be tried or resolved
d. The documents or exhibits to be presented, stating the purpose thereof
e. A manifestation of their having availed of or their intention to avail themselves of discovery procedures or referral to commissioners
f. The number and names of the witnesses, and the substance of their respective testimonies
Failure to file the trial brief shall have the same effect as failure to appear at the pre-trial.
There shall be a record of the pre-trial where in the court issues an order which recites matters taken up during the pre-trial.
Notes from Regalado
•
The pre-trial and trial on the merits of the case must be held on separate
dates/
•
The pre-trial may be properly scheduled even if the plaintiff had not yet
filed his answer to the defendant’s compulsory counterclaim since no
answer is required to be filed thereto.
•
The trial court has discretion to declare a property non-suited
•
Where the defendant is declared in default for his failure to appear at the
pre-trial, his remedy is to file a motion for reconsideration
!
If denied with
grave abuse of discretion, certiorari is the remedy
!
The remedy of the
plaintiff who is non-suited, on the other hand, is to appeal from the order of
dismissal.
•
Where the defendant was present at the pre-trial, the court has no
authority to thereafter call a second pre-trial and declare defendant in
default for his absence therein.
RULE 19 – INTERVENTION
Intervenor must:
1. Have legal interest in the matter of controversy
2. Have legal interest in the success of either of the parties 3. Have legal interest against both
4. Be so situated as to be adversely affected by a disposition or distribution of the property by a separate proceeding
Motion to intervene may be files at any time before judgment is rendered by the trial court.
Answer to complaint-in-intervention must be filed within 15 days from notice of court admitting the complaint.
Complaint in intervention is merely collateral to the principal action. Hence, it will be dismissed it main action is dismissed.
A complaint in intervention that seeks affirmative relief prevents a plaintiff from taking a voluntary dismissal of the main action. Such a case is not subject to dismissal upon intervenor’s petition showing him to be entitled to affirmative relief. The petition will be preserved and heard regardless of the disposition of the main action.
INTERVENTION INTERPLEADER An ancillary action. An original action.
Proper in the situations enumerated in the Rule.
Presupposes that the plaintiff has no interest in the subject matter of the action or has an interest therein which in whole or in part is not disputed by the other parties to the action.
Defendants are already original parties to the pending suit.
Defendants are being sued to implead them.
Denial of motion for intervention is final and appealable.
Remedy for allowing or denying motion for intervention- either certiorari or mandamus (to prevent multiplicity of suits)
Notes from Regalado:
•
Intervention will not be allowed where it would enlarge the issues in the
action and expand the scope of the remedies.
•
When an intervenor has become a party to a suit , the trial court cannot
dismiss the intervention suit on the basis of an agreement between the
original parties to the action unless the intervenor is a party in such
agreement.
•
When an intervening petition has been filed, a plaintiff may not dismiss the
action in any respect to the prejudice of the intervenor.
•
Where the intervenor’s rights are interwoven in the pending case and he
had due notice of the proceedings, he will thereafter be estopped from
questioning the decision rendered therein through another action.
•
An improper denial of a motion for intervention is correctible by appeal
!
hand, an improper granting of a motion for intervention may be
controverted by certiorari and prohibition.
RULE 20 – CALENDAR OF CASES
Clerk of court keeps a calendar of cases for pre-trial, trial, those whose trials have been adjourned or postponed and those motions set for hearing.
Preference of dates shall be given to habeas corpus, election, special civil action and those cases so required by law.
Assignment of cases shall be done exclusively by raffle in open session with notice, so parties or counsel will be prevented from choosing judges to hear their case.
Notes from Regalado
• Four separate calendars reflecting the cases for pre-trial, for trial, those whose
trials were adjourned and postponed and those those requested to be set for hearing.
RULE 21 – SUBPOENA
SUBPOENA – is a process directed to a person requiring him to attend and testify at a hearing or trial or investigation or for the taking of his deposition.
SUBPOENA DUCES TECUM – process which requires a person to bring with him books, documents or other things under his control.
SUBPOENA AD TESTIFICATION - process which requires a person to attend and to testify at the hearing or the trial of an action or at any investigation conducted by competent authority or for the taking of his deposition.
SUBPOENA SUMMONS
An order to appear and testify or to produce books and documents
Order to answer a complaint
May be served to a non-party Served on the defendant Needs tender of kilometrage, attendance
and reasonable cost of production fees
Does not need tender of kilometrage and other fees
Subpoena may be issued by:
a. The court before whom witness is required to attend; b. The court of the place where the deposition is to be taken;
c. The officer or body authorized by law to do so in connection with its investigations;
d. Any Justice of the SC or CA in any case or investigation pending within the Philippines
Prisoner may be issued a subpoena a but for prisoners sentenced to death, reclusion perpetua or life imprisonment and confined in a penal institution, authorized by the
Supreme Court is necessary.
Subpoena shall state the name of the court and title of the action and directed to the person required to attend. If it is a subpoena duces tecum then it must contain a reasonable description of the books, documents or things demanded which must appear prima facie relevant.
GROUNDS FOR QUASHING SUNPOENA DUCES TECUM a. It is unreasonable or oppressive
b. The articles sought to be produced do not appear to be relevant. c. Person asking for subpoena does not advance cost of production
GROUND FOR QUASHING SUBPOENA AD TESTIFICANDUM
a. The witness is not bound thereby – if witness resides more than 100 km from the place where he is to travel by the ordinary course of travel, or if he is a detention prisoner and no permission is obtained from the court in which his case is pending. (known as VITIATORY RIGHT , applicable only in civil cases).
b. Witness fees and kilometrage allowed by rules not tendered when subpoena served.
Service of subpoena shall be made in the same manner as personal or substituted service of summons.
Tender of fees and kilometrage is not necessary if subpoena is served by or on behalf of the Republic of the Philippines.
Attendance may be compelled by issuance of a warrant of arrest against the witness and the sheriff to bring the witness before court where attendance is required.
