Three common types of motions, motion to quash, motion to dismiss, and motion to sever, all appear to have the same goal – yet, which one will achieve your objective?
John Whitaker, in his piece Motion to Quash; Motion to Sever; Motion to Dismiss: What’s the Difference? writes the following:
You can do any one or more of those, in any combination. Actually there are several more options than that, but those are the most frequent, especially if you want to resist the subpoena. Of course, you could just do nothing, but that’s not any fun.
To review, Black’s Law Dictionary provides the following definitions:
Quash: To overthrow ; to abate; to annul ; to make void.
Sever: To separate. When two joint defendants separate iu the action, each plead- ing separately his own plea and relying upon a separate defense, they are said to sever.
Dismiss: To send away; to discharge; to cause to be removed.
According to Whitaker, a motion to quash is employed to kill a subpoena – but it does not end the lawsuit. He writes:
A winning motion to quash must attack the sufficiency of the subpoena itself, not the merits of the lawsuit. In other words, informing the Court that they don’t have personal jurisdiction over you might be proper grounds for a motion to quash. But just telling the Court you didn’t do it is not proper grounds. If you want to address the merits of the lawsuit, that’s what the litigation process is all about.
With regard to a Motion to Sever, the objective is to separate the defendants, but again, not end the lawsuit. Whitaker writes:
A winning motion to sever must attack the propriety of having lots of defendants in one lawsuit, again, not the merits of the case. Proper grounds for a motion to sever are that the multiple defendants don’t have anything in common and each defendant has his or her own unique defenses that should properly be litigated separately.
A Motion to Dismiss is the only motion of the three that may result in a judge granting the end of a law suit. To this end, Whitaker writes:
the motion to dismiss is the big one. A motion to dismiss is a request to the Court to let you out of the lawsuit. In other words, a successful motion to dismiss is the only way you are officially completely let out of the suit. If your motion to dismiss is successful, you are no longer a defendant in any federal litigation matter.
A proper motion to dismiss is the only place that you can address the actual merits of the case, and even then the evidence must be overwhelming. Remember, the litigation process is exactly how all the he-said-she-said disputes are resolved.