IN THE SUPERIOR COURT OF THE STATE OF RIDGEWAY
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CASE NO. RSC-CV-2233
Plaintiff
v.
Hersofius
Defendant
MOTION TO DISMISS
NOW COMES Defendant Hersofius, by and through their undersigned counsel, pursuant to Rid. R. Civ.
P. 12(a)(5), hereby moves this Court to dismiss Count 2 (Assault) and the Plaintiff’s request for injunctive relief
on the grounds that these claims fail to state a claim upon which relief can be granted. In support of this Motion,
Defendant states the following.
LEGAL STANDARD
Under Rule 12(a)(5) of the Ridgeway Rules of Civil Procedure, a party may move to dismiss a claim for
“failure to state a claim upon which can be granted.” To survive a motion to dismiss, the complaint must allege
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Pleadings must also comply
with Rid. R. Civ. P. 8, requiring a “short and plain statement of the claim showing that the pleader is entitled to
relief.” Conclusory allegations without factual support do not meet this standard.
COUNT 2 FAILS TO STATE A COGNIZABLE CLAIM
To state a claim for Assault pursuant to 1 R. Stat. § 3103, Plaintiff must plead:
1. An act intended to cause a harmful or offensive contact, or an imminent apprehension of such
contract; and
2. The Plaintiff’s actual apprehension of imminent harm.
Here, Plaintiff fails to allege any imminent apprehension of harm or any violational act by Defendant
that rises to the level of assault in accordance with 1 R. Stat. § 3103. The accusations are ambiguous,
conclusory, and lack the necessary factual foundation to demonstrate either intent or apprehension.
“[A] complaint that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action will not do.’” — Twombly, 550 U.S. at 555.”
Because Plaintiff has failed to plead the essential elements, Count 2 should be dismissed pursuant to
Rule 12(a)(5).
TRO CLAIM IS PROCEDURALLY AND SUBSTANTIVELY DEFICIENT
Plaintiff’s request for a Temporary Restraining Order fails both procedurally and substantively, and must be
dismissed under Rid. R. Civ. P. 12(a)(5) for failure to state a claim upon which relief can be granted.
Procedural Deficiencies
Under Rule 47(a), a TRO may only be granted without written or oral notice to the adverse party if:
1. It “clearly appears from specific facts shown by affidavit or by the verified complaint that
immediate and irreparable injury, loss, or damage will result,” and
2. The applicant certifies efforts made to give notice and the reasons notice should not be required.
In this case, Plaintiff has failed to file a verified complaint or any affidavit asserting specific facts
showing irreparable harm. The Complaint is unverified, conclusory, and lacks any evidentiary support
required for injunctive relief under Rule 47(a).
As established in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008), “A plaintiff
seeking a preliminary injunction must establish that he is likely to suffer irreparable harm in the absence
of preliminary relief.” This same standard applies with equal or greater force to TROs, which are
considered even more extraordinary remedies.
Substantive Deficiencies
The Complaint alleges no imminent or irreversible harm. It makes no mention of future risk, the
recurrence of the alleged crimes, or any circumstances indicating an immediate threat needing urgent
court intervention.
Moreover, under Rule 47(d), a restraining order must be “specific in terms” and must describe in
“reasonable detail” the acts to be restrained. Plaintiff’s pleadings fail to define the scope, terms, or
factual basis of the requested TRO, rendering it noncompliant on its face.
Accordingly, the TRO claim is both procedurally defective and substantially unsupported. Dismissal is
warranted under Rule 12(a)(5)and consistent with the principle that injunctive relief is reserved for truly
exceptional circumstances.
CONCLUSION
Because Plaintiff’s claims for Assault and a Temporary Restraining Order fail to meet the pleading requirements
of Rule 8 and fall squarely within the grounds for dismissal under Rule 12(a)(5), the Court should dismiss
Count 2 and the TRO request with prejudice.
Respectfully Submitted,
Defendant Hersofius
By their Attorney,
Detachment_Result
Detachment_Result, Bar No. 11103
