Fill and Sign the Motionto Dismiss Action with Prejudiceplaintiffs Cause of Action Barred by Statute of Limitations Form

IN THE ________________________ (Name of Court) COURT OF ________________________ (Name of County), ________________________ (Name of State) __________________________________ PLAINTIFF (Name of Plaintiff) V. CAUSE NO. _______,______ __________________________________ DEFENDANT (Name of Defendant) Motion to Dismiss Comes now _________________________________ (Name of Defendant), Defendant in the above-captioned cause, and respectfully moves that this Court dismiss the above-entitled action with prejudice for the reason that the Complaint shows on its face that the cause of action set forth is barred by the statute of limitations since it was not commenced within ______ (number of years) years after its accrual, as required by ________________________________ (citation of state or federal statute). Witness my signature this the _________________________________ (date). Respectfully submitted, ___________________________________(Name of Defendant) By: ________________________________ (Name of Defendant’s Attorney) State Bar No. ____________ One of His Attorneys OF COUNSEL: ________________________________(Name of Defendant’s Attorney)Post Office Box ___________________City, State, Zip Code ______________________________________Telephone: ____________________
(name of defendant's attorney) on behalf of defendant, plaintiff: (name of plaintiff) by: (name of plaintiff’s attorney) state bar no [1] if a party is not represented by an attorney, the “attorney" named in the answer is a "representing attorney." [2] "an individual in the employ of a corporation is an agent of the corporation and is not an “agent" of the corporation under the law of equity." [3] one way to avoid a "double count" is for the plaintiff to show that the defendant used the same or similar instrument of fraud in both actions. [4] the defendant was required to send a copy of the notice of entry of judgment to the plaintiff within twenty-one days after service. [5] one of the two requirements for a plaintiff in a private action to obtain a default judgment is “that the plaintiff be entitled to recover damages for the negligence or carelessness of the defendant that is not compensated for in insurance." [6] the plaintiffs here are limited in the damage they can seek due to the limitation statute that applies to private actions. [7] to prevail on his claim for the alleged “failure to deliver" of the securities, the plaintiffs have to demonstrate an act or omission on the part of the defendants that “would be enough to defeat the purpose of a security under which it was issued." [8] since the "private rights of the parties” were "assured on the day of issuance and are to remain in existence forever,” the courts were required to decide whether the parties were entitled to make the required disclosures to purchasers of the securities. [9] since the plaintiff "could not reasonably forego his right to recover damages” for injury to or loss of business opportunity which allegedly resulted from the defendant's violations of his fiduciary duties, the plaintiff in a private action must show causation of the injury. The plaintiff may not rely on the statute of limitations under which the injury arose. [10] the court did not address how the plaintiff was able to show a negligence or carelessness on the part of the defendants, or on defendant's performance of its obligations under the securities agreements with plaintiffs or their respective subsidiaries. [11] if the plaintiff prevails on this claim, he can then bring a claim under the federal securities laws. There are two federal statutes which provide a basis for the tort.