DEFENDANTS MOTION TO DISMISSPLAINTIFFS COMPLAINT

Daimy Bueno

Attorneys’ Business Address

City, ST ZIP Code

Phone | Fax

Email

Attorney for Defendants

NAME OF LAW SCHOOL

MOOT COURT

NOTICE OF DEFENDANT’S MOTION TO DISMISS

You are notified that on [DATE], at [TIME], or as soon thereafter as the Defendant can be heard, in Courtroom __ of the [NAME OF COURT/MOOT COURT] Courthouse at [LAW SCHOOL’S ADDRESS].

The Defendant will bring on for hearing its Motion to Dismiss Plaintiff’s Complaint for the reasons stated in the attached Motion.

Dated this ___ day of [MONTH], 2021.

Respectfully Submitted,

___________________________________

Daimy Bueno,

Attorney for Defendants

MOTION TO DISMISS PLAINTIFF’S COMPLAINT

Defendant City of Hialeah now files this Motion to Dismiss Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and would respectfully show this Honorable Court as follows:

1. Plaintiff filed a Complaint against Defendant alleging deprivation of rights under 42 U.S. Code § 1983. 
2. Defendant would like this Honorable Court to dismiss all claims made against the City of Hialeah for the reason that the City of Hialeah is an improper defendant. Defendant [NAME OF POLICE OFFICER] is not an employee of the City of Hialeah; therefore, the City of Hialeah is not vicariously liable for the actions of Defendant [NAME OF POLICE OFFICER].
3. 42 U.S. Code § 1983 states as follows: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”
4. Defendant [NAME OF POLICE OFFICER] would like this Honorable Court to dismiss Plaintiff’s Complaint for failure to state a claim.
5. In Crumpton v. Gates, 947 F. 2d 1418, 1420 (9^th Cir. 1991), the court upheld the elements of violation of 42 U.S. Code § 1983 as stated in Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1139, 1150 n.3, 1152, 59 L. Ed 2d 358 (1979) (Brennan, J., concurring) and observed as follows: “Traditionally, the requirements for relief under section 1983 have been articulated as: (1) a violation of rights protected by the Constitution or created by federal statute, (2) proximately caused (3) by conduct of a “person” (4) acting under color of state law.”
6. Plaintiff has failed to prove the first element that his rights protected by the Constitution were violated by Defendants, and subsequently, all other elements. Defendant [NAME OF POLICE OFFICER] acted on suspicion of criminal activity because Plaintiff had a gun tucked in his waistband.
7. In Terry v. Ohio, 392 U.S. 1 S. Ct. (1968), the Supreme Court held as follows: “In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.”
8. Defendant [NAME OF POLICE OFFICER]’s suspicion that Plaintiff may pose a threat to him and others at the store was reasonable. He had no reason to believe that Plaintiff was a police officer as he was not in uniform at that time and was brandishing his gun in his waistband. The action that Defendant [NAME OF POLICE OFFICER] took was one that could neutralize the threat of physical harm and cause the least damage upon Plaintiff, who was acting suspiciously. In doing so, Defendant [NAME OF POLICE OFFICER] did not violate Plaintiff’s rights under 42 U.S. Code § 1983.

REASONS WHEREFORE, Defendants respectfully request this Honorable Court to dismiss Plaintiff’s Complaint and all claims against Defendants with prejudice, award Defendants attorney fees and costs of this suit, and award Defendants any other equitable remedy available under the circumstances.

Dated this ___ day of [MONTH], 2021.

Respectfully Submitted,

___________________________________

Daimy Bueno,

Attorney for Defendants

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was sent on the (Date) day of (Month) (Year) by regular U.S. mail, by facsimile, or certified mail, return receipt requested, to the following parties or attorneys of record:

(Name of Attorney), Attorney at Law

Dated this ___ day of [MONTH], 2021.

Respectfully Submitted,

___________________________________

Daimy Bueno,

Attorney for Defendants

At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, The LegalPen will be able to prepare the legal document within the shortest time possible. You can send us your quick enquiry ( here )