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Sample opposition to motion to dismiss under rule 12(b)(6)

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This sample opposition to a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure was used in an adversary proceeding but can be modified and used in any civil litigation in a Bankruptcy or District Court in ANY state within te jurisdiction of the Ninth Circuit Court of Appeals. This is a preview of the sample document sold on scribd.com by LegalDocsPro. The sample is 10 pages long and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and a proof of service by mail.

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Sample opposition to motion to dismiss under rule 12(b)(6)

  1. 1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Any Attorney or Party Any Street Any Town, CA 90000 949-555-5555 Any Attorney or Party UNITED STATES BANKRUPTCY COURT ____________ DISTRICT OF ________ IN RE: ANY PARTY, Debtor, ANY PARTY, Plaintiff, vs. ANY PARTY, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. Chapter 7 Adv. Proc No. OPPOSITION TO MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES DATE: TIME: DEPT: To subscribe to my FREE California weekly legal newsletter visit http://www.legaldocspro.net/newsletter.htm and enter your e-mail address. Be sure to remove this notice and all other notices before using this document. - 1 - OPPOSITION TO MOTION TO DISMISS COMPLAINT
  2. 2. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 To purchase and download the entire sample document visit: http://www.scribd.com/doc/25605615/Sample-Opposition-to-Motion-to- Dismiss-under-Rule-12-b-6 Plaintiff, ________________________, (“Plaintiff”) herein submits his Opposition to the Motion to Dismiss for failure to state a cause of action filed by Defendant, _____________________ (“Defendant”). Plaintiff contends that his complaint does in fact allege sufficient facts to state a cause of action against Defendant, and does state the particular section, namely 523(a)(2) of the Bankruptcy Code, on which Plaintiff contends that the debt owed by Defendant is non-dischargeable. Therefore, the Court should deny Defendant’s Motion. The Opposition to the Motion will be based on this Opposition, the attached Memorandum of Points and Authorities, and all pleadings and documents on file in Defendant’s bankruptcy case and this adversary proceeding. This Motion shall be based upon this Notice, the attached Memorandum of Points and Authorities, the complete files and records of this action, and such other evidence as may be presented at the hearing on this Motion. Dated_________________________ _______________________________________ Any Attorney or Party 1 - 2 - OPPOSITION TO MOTION TO DISMISS COMPLAINT
  3. 3. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF FACTS Plaintiff contends that Defendant is a debtor of Plaintiff, and that the debt is non- dischargeable based on the following. State all facts in detail that show the false representations made by the defendant. Specifically what was said, when it was said, where it was said. Use the wording from the complaint, not necessarily all of it but enough to ensure that you have stated a claim for fraud against the Defendant based on false representations. Do NOT just use the wording from this sample unless it applies to your situation. II. LEGAL ARGUMENT A. THE COURT SHOULD DENY DEFENDANT’S MOTION TO DISMISS AS PLAINTIFF’S COMPLAINT DOES ALLEGE SUFFICIENT FACTS TO CONSTITUTE A CAUSE OF ACTION AGAINST DEFENDANT Pleading satisfies particularity requirement for fraud if it identifies circumstances constituting fraud so that defendant can prepare adequate answer from the allegations. Deutsch v. Flannery, (9th Cir.1987), 823 F.2d 1361, 1365. - 3 - OPPOSITION TO MOTION TO DISMISS COMPLAINT
  4. 4. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff contends that his complaint clearly satisfies the particularity requirement for fraud as it identifies the circumstances constituting fraud in enough detail for Defendant to prepare an adequate answer from the allegations. And the U.S. Supreme Court has stated that a complaint should not be dismissed unless it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim that would entitle him to relief. If you like this sample document please visit the Facebook page for LegalDocsPro at: http://www.facebook.com/LegalDocsPro and give it a like. - 4 - OPPOSITION TO MOTION TO DISMISS COMPLAINT

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