The Oklahoma Bar Journal August 2022

answer and foregoing other possi ble strategic moves.

concise, and direct” with no tech nical form of pleading or motion required. 13 Motions to dismiss test the law that governs the claims in the peti tion and are generally disfavored. 14 The court examines the controlling law, not the facts, and a motion to dismiss will be granted only when there are no facts consistent with the allegations or there are insuffi cient facts under a cognizable legal theory. 15 The question becomes, when is it appropriate to file a motion to dismiss? Lack of Jurisdiction To have a viable cause of action against a defendant, a plaintiff must set forth allegations suffi cient to allow a court to exercise subject-matter jurisdiction over the claims and personal jurisdic tion over the defendant. Under Okla. Stat. Tit. 12 §2012(B)(1) and (2), a defendant can seek dismissal of a lawsuit because of a lack of subject-matter jurisdiction or personal jurisdiction. Jurisdiction

extend the period of time to respond and not waive certain affirmative defense. 9 “The distinction between a special or general appearance would now appear inconsequential, and ostensibly, any reservation of time ‘waives the defenses in paragraphs 2, 3, 4, 5, 6, and 9 of subsection B of Section 2021.’” 10 Defense attorneys can no longer rely on a special entry of appear ance to extend the period of time to respond to a petition without waiving any affirmative defenses. Instead, defense attorneys needing additional time must now obtain consent from the plaintiff’s attor ney or a court order granting a request for additional time. While this is not an incredibly difficult task, defense attorneys should not sit on their hands. Upon receipt of a new lawsuit from a client, defense attorneys should act immediately to investigate the claims asserted in the lawsuit and avoid the need to file an application with the court to seek additional time to respond. Otherwise, you may face filing an

MOTION TO DISMISS Motions to dismiss can be the most effective strategic move in response to a new lawsuit. Filing a motion to dismiss can not only lead to a dismissal of the lawsuit, but it could cause a plaintiff to recon sider their allegations. Still, filing a motion to dismiss can be time consuming and costly to a client, so a determination on whether to file a motion to dismiss must be thoroughly examined and dis cussed with the client. Oklahoma is a notice pleading state, and all that is required for a plaintiff to plead a viable lawsuit is to give fair notice of their claim and the grounds on which it rests. 11 Under the Oklahoma Pleading Code, a petition must contain “[a] short and plain statement of the claim showing that the pleader is entitled to relief.” 12 Terms of art or legal phraseology is not required, and each allegation “shall be simple,

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THE OKLAHOMA BAR JOURNAL