Motion is an application for a relief other than by a pleading

- Old definition: it is an application for a an order not included in judgment

Omnibus Motion
It is a motion that attacks a pleading, a proceeding or a judgment

What is the Omnibus Motion Rule?

It is the rule requiring all objections and defenses to be pleaded in a motion to dismiss or answer and those
not pleaded are deemed waived.

Exceptions
Rule 9, Section 1
Defenses and objections not pleaded –Defenses and objections not pleaded either in a motion to
dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the
evidence on record that the court has no jurisdiction over the subject matter, that there is another
action pending between the same parties for the same cause, or that the action is barred by a prior
judgment or by statute of limitations, the court shall dismiss the claim.

What is an example of a motion that attacks judgment?

Example is a Motion for Reconsideration
What is an example of a motion that attacks a pleading?
Example is a Motion to Dismiss on the ground of failure to state a Cause of Action
What is an example of a motion that attacks a proceeding?
Example is Motion for New Trial

Motion Day
 It is the day when motion are to be called and are to be heard
 Motion Day is Friday
 If you file a motion
 Motion Set for hearing by applicant, hearing should be in Friday
Rule 15, Section 7 - Motion day. — Except for motions requiring immediate action, all motions
shall be scheduled for hearing on Friday afternoons, or if Friday is a non-working day, in the
afternoon of the next working day.
 (In real life according to RUA it is not being followed)
 In law practice it is advisable to ask court staff the motion day.

Rule 16
Motion to Dismiss
Motion to dismiss or any motion must comply with the requisites in Rule 15

Time when to file a Motion to Dismiss

Within the time for but before the filing of answer by the defendant or defending party may move to
dismissal of the action on the following grounds:
a) That the court has no jurisdiction over the person of the defending party;
b) That the court has no jurisdiction over the subject matter of the claim;
c) That venue is improperly laid;
d) That the plaintiff has no legal capacity to sue;
e) That there is another action pending between the same parties for the same cause;
f) That the cause of action is barred by a prior judgment or by the statute of limitations;
g) That the pleading asserting the claim states no cause of action;
 h) That the claim or demand set forth in the plaintiff’s pleading has been paid, waived,
abandoned, or otherwise extinguished;
i) That the claim on which the action is founded is unenforceable under the provisions of the
statute of frauds;
j) That a condition precedent for filing the claim has not been complied with.

If the court does not acquire jurisdiction, defendant may file a motion
 Defendant waives it if he does not set it up in his motion to dismiss, Files an answer Without
claiming it or insisting it, that will constitute a waiver of his objection

Lack of Jurisdiction over the Subject matter cannot be waived

 Court can take notice even without Motion to Dismiss

May Court dismiss on Lack of Jurisdiction Over the Subject Matter of the Action?
Yes, the court can do it on its own because the court must take notice of its limit of jurisdiction
- If Court has no jurisdiction over the subject matter of the action, the only power it has is to dismiss
the action.
- It cannot allow amendment because amendment is an exercise of jurisdiction.

- July 1 was the date summons was served

- Defendant has 15 days to file an answer
- July 16 is the last day to file an answer
- The rule says within the time for, but before filing the answer.
He can file Motion to Dismiss based on the grounds mentioned in Rule 16, Section 1

- On July 10 Defendant filed an answer (July 10-16 “the Time for”)

- Can he file a Motion to Dismiss?
o No
o If Defendant has already filed his answer, He cannot file a Motion to Dismiss

Suppose he did not file an answer and he filed a motion to dismiss alleging those grounds on Section 1.
- He can ask for preliminary hearing on the defenses or ground he has set-up
- Any of those mentioned in Section 1 can be pleaded as an affirmative defense.
- If No answer yet, the Defendant may ask for a preliminary hearing on those affirmative defense as
if a candid motion to dismiss has been filed.

Rule 16, Section 6. Pleading grounds as affirmative defense. – If no motion to dismiss has been filed, any of
the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer
and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had
been filed. The dismissal of the complaint under this section shall be without prejudice to the prosecution
in the same or separate action of a counterclaim pleaded in the answer.
Let us say complaint is dismissed on any of the ground of Section 1, is the dismissal without prejudice or
with prejudice?
- If the dismissal is without prejudice, remedy is you can refile the complaint, it is not appealable.
- If the dismissal is with prejudice, the remedy is appeal, you cannot refile

The Complaint is dismissed on any of the grounds on Section 1, is the dismissal without prejudice or with
prejudice?
If Complaint is dismissed based on any of the following:
 Res judicata or bar by prior judgment;
 That the claim has prescribed or barred by Statute of Limitations;
 That the Claim is unenforceable under the Statute of Frauds;
 That Claim or demand has been paid, waived, abandoned or otherwise extinguished.
- If the dismissal is based on these grounds, the dismissal is with prejudice, therefore the complaint
cannot be refiled, and therefore the remedy is appeal.
- If the complaint is dismissed on any other grounds, the dismissal is without prejudice and
complaint may be refiled

Example:
In a Promissory Note, 7 Million (amount of Plaintiff Claim) is filed with the MTC, the complaint is dismissed.
Can you refile? Yes, but when refile pay again the docket fees

Is there an instance when you are not required to pay?

- Yes but you must apply of Litigate as an indigent litigant (pauper litigant in the past)

Lack of Legal Capacity to Sue

1. If he is not in exercise of his civil rights (example: insane);
2. He does not have character or representation that he claims;
3. He does not have qualification to appear in the action;
Examples:
 You say you were authorized to file a complaint but has no authority.
 You have no character or representation
 There were 5 a number filed a complaint claiming it as a class suit, but then there is
no common interest in subject matter of the controversy.
 Defendant can file a Motion to Dismiss
 Subject batter is not of common interest or general interest file a motion to
dismiss on the ground plaintiff has no legal capacity to sue because they
don’t have character or representation that he claims.

That a condition precedent for filing the claim has not been complied with
 In the following instances:
1. Lack of prior referral of the dispute to the lupon
The Case has not been referred for conciliation to the lupon;
 Before going to court there must be prior referral of the prior dispute to the lupon.
 Then get a certification to file action and append that to your complaint. If there is
no allegation in your complaint that the dispute has been referred to the lupon or
mediation, then a condition precedent has not been complied with and therefore
your complaint can be dismissed.
2. Failure to exhaust administrative remedies or non-exhaustion of administrative remedies;
 First exhaust administrative remedies before going to court.
3. That the suit is between the members of the same family it must be alleged in a verified
petition there is earnest effort for amicable settlement or compromise had made;
  Who are members of the same family referred to?
 Brother and Sister
 Parents and Children
 Ascendant and Descendant
 Husband and Wife
 If there is another person included as a party, it is not a suit between the members
of the same family.
Example: 2 Plaintiff Brothers v. 5 Defendant Brothers
Plaintiff and defendants are brothers, but there is another one a first cousin that is
not a suit between members of the family.
 The moment a stranger comes like sister in law or brother in law, it is not a
suit between members of the family.

Res Judicata
What are the Requisites of Res Judicata?
The following:
1. The former judgment must be final;
2. It must have been rendered by a court having jurisdiction over the subject matter and the parties;
3. It must be a judgment or order on the merits; and
4. There must be between the first and second actions identity of parties, identity of subject matter,
and identity of the causes of action.

If granted, complaint is dismissed

Can you re-file?

- It depends.
What is the remedy of the plaintiff if the compliant is dismissed?
- The remedy is to appeal or refile the complaint.
But if the Motion to Dismiss is denied, what may the defendant do? (aside from blaming his lawyer)
- Defendant has to file an answer if motion to dismiss is denied.
Within what time the defendant the defendant may file?
- He has the remaining balance which but it shall not be less than 5-days in any event (same thing as
in the bill of particulars).

Rule 17
Dismissal of Action
Dismissal on Motion of the Plaintiff (because of the act or fault of the plaintiff)

If a Plaintiff files a complaint, may the plaintiff dismiss his own complaint?
 Yes
Can He refund filing fee?
 No
How may plaintiff dismiss his own complaint?
 By notice of dismissal or by motion to dismiss.
When may Plaintiff Dismiss his Complaint by Notice of Dismissal?
 At any time before the service upon him of the answer or of a motion for summary judgment.
What is the nature of the dismissal?
 The Dismissal is without prejudice, the plaintiff can refile.
 Exception:
1. Unless Notice of dismissal states otherwise;
2. Refiling of case is barred by the Two dismissal rule.
 If notice without prejudice, plaintiff says it in the notice of dismissal

How does notice of dismissal look like? – Must be very short

You cannot confirm that did not happen yet.

Plaintiff files a Notice of Dismissal, can he refile complaint?
 Yes
If in the Notice adds/says
 In addition
 “that such dismissal is with prejudice” or
 “Plaintiff gives notice by his counsel gives notice that he is dismissing his complaint with prejudice.”
Plaintiff included “with prejudice” in his Notice of Dismissal, can he use the remedy of appeal?
 No, he cannot appeal because he is the one dismissing it anyway

Two Dismissal Rule

X files a complaint against Y, he had it dismissed by filing notice of dismissal. Two weeks later he filed the
same complaint, the next day filed a notice of dismissal. Can he refile the same complaint?
 No, it is barred by the two dismissal rule. A plaintiff who caused his complaint twice is barred by
two dismissal rule

Question: Suppose defendant has filed an answer to complaint, may the plaintiff dismiss his complaint if
the defendant filed an answer?
 Yes, not by notice of dismissal but by motion to dismiss. The Court will issue order granting the
Motion to Dismiss
 Complaint is dismissed upon issuance of an order

Question: What is the nature of the dismissal?

 Without prejudice unless otherwise stated by court.

Suppose Defendant asserted Counterclaim in answer, Plaintiff filed motion to dismiss the complaint and
the court granted it.
 Dismissal is limited only to the complaint. What is dismissed is not the case but only to the
complaint.
  Dismissal is without prejudice to the right of the defendant to prosecute his counterclaim in a
separate or in the same action.
 Counterclaim is not dismissed, the Rules says it would be prosecuted in a separate action unless
within 15 days from receipt he will manifest or file a manifestation in court his that he would like to
prosecute in the same action.

May the defendant dismiss his counterclaim?

 Yes

Rule 17, Section 3

May a complaint be dismissed motu proprio by the court or on the motion of the defendant?
Court may also dismiss the complaint motu proprio or on motion of the defendant on any of the following
grounds:
Without any justifiable cause …
1. The plaintiff fails to appear on the date of the presentation of his evidence-in-chief of the
complaint;
2. The plaintiff fails to prosecute his action for an unreasonable length of time; or
3. The plaintiff fails to comply with the Rules of Court or Any other court.
What is the effect of dismissal?
 With prejudice unless otherwise stated by the court
If complaint is dismissed with prejudice and order of dismissal of complaint becomes final can you refile?
 No, If you refile complaint can be dismissed on the ground of res judicata.
 If an order issued dismissing complaint based on following grounds, the dismissal is an adjudication
of the case in its merits that has the effect of a judgment that is why if order lapses to finality and is
refilled, it is dismissed on the ground of res judicata.

Without any justifiable cause the plaintiff fails to appear in court on the date of the presentation of his
evidence-in-chief of the complaint;
Example:
PvD
C A

- First to present evidence is the plaintiff, so he will be assigned of trial dates, for example the court
asked the counsel how many trial dates and asked for five trial dates. But the plaintiff failed to
present evidence on the said trial dates and did not even appear in court.
o Evidence-in-chief is the Evidence to support your complaint
- Plaintiff rests his case.
- Defendant to present his evidence in chief and also rest his case.
- Suppose plaintiff will say we have rebuttal evidence to rebut evidence of defendant, it is not
anymore evidence in chief but rebuttal evidence.
- Suppose the Case was set on a particular date for presentation of rebuttal evidence, the plaintiff
failed to appear. May the court dismiss the complaint?
o No, it is not evidence-in-chief but rebuttal evidence
- Suppose the defendant is to present his evidence but the plaintiff failed to appear, may the court
dismiss the complaint?
o No, because he has already presented his evidence, the only effect is that he waive his right
to cross-examine the witnesses and evidence of the defendant.
The plaintiff fails to prosecute his action for an unreasonable length of time
- Case not moving, no activity
The plaintiff fails to comply with the Rules of Court or Any other court.
- Court issues order to amend complaint and to implead an indispensable party.
 o “Plaintiff is hereby directed within 10 days to implead omitted indispensable party so and
so..”
o The court may dismiss the complaint not because of non-joinder but failure to obey order

Rule 18
Pre-trial

Pre-trial
- is mandatory
- you cannot dispense without pre-trial
- it is a device to clarify and simplify issues in complaint and answer
- Issues are contained in Pre-trial order
- When you go to trial, you are bound by Pre-trial order

What are the Matters to be taken up?

 Amicable settlement – Possibility of amicable settlement or submission of issues to
Alternative Dispute Resolution
 Simplification of the issues, stipulation of facts or documents – The necessity of stipulation
of facts
 Amendment to pleadings – Desirability to amend pleadings
 Simplification of issues –
 Witnesses – necessity of limiting number of witnesses
 Commissioner – Desirability of preliminary reference to a commissioner
 Judgment – Propriety of rendering judgment on the pleadings, summary judgment or
dismissal of the action if a ground therefore appears to exist
 Suspension of the Action –
 Other Matters –
ASASWCJSO
“All Sweet And Sour Wet Cold Jealous Suspicious Overact”