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ADM F. 500 (Rev. 03/22) Order and Judgment
IN THE SUPERIOR COURT OF THE STATE OF RIDGEWAY
THEICESHIFTER
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DOCKET NO. RSC-CV-2973
Plaintiff
v.
SUPERCYBER
Defendant
MOTION TO DISMISS ORDER
Based on the foregoing discussion and legal findings count one and count two are dismissed, and the
Plaintiff must re-serve the Defendant. The Defenat’s motion to dismiss this case with prejudice is DENIED.
BACKGROUND
On June 23rd the Dedendant’s counsel entered a Motion to Dismiss, alleging that the allegations in the
Civil Complaint did not meet the requirements for all three of the counts. Additionally, they alleged that the
plaintiff failed to serve the summons per rule 4 of the civil procedure. On June 25th with a one-hour extended
deadline, the Plaintiff’s counsel submitted a response to the Motion to Dismiss stating that there were sufficient
factual allegations, that the complaint met the requirements, and that the summons was sufficient.
LEGAL FINDINGS
When evaluating allegations, all elements of the alleged claim must be substantiated with valid and
accurate material. In count one wrongful death the civil complaint as outlined in the Motion to Dismiss it fails
to outline specifically in their allegations that Defendant caused the death of Plaintiff. It was stated that the
battery occurred and that the Defendant died as a result of their actions. However, this statement lacks specifics
about what made the Plaintiff liable for the death and rather made the legal conclusion as outlined in the motion
to dismiss. Count two the Motion to Dismiss highlights that the civil complaint simply restates the statute and
then relates it to the death of the Plaintiff. Concluding just from the alleged death of the Defendant lacks
providing intent was there and the specific contact. The use of legal conclusions in the complaint was improper
as“while legal conclusions can provide the framework of a complaint, they must be supported by factual
allegations.” Iqbal, supra at 679. In both counts one and two, the legal conclusions used were not supported by
factual allegations.
On count three the Motion to Dismiss states that the requirements were not met due to a recitation of the
statute and not specify unconsented contact. However, despite some of it being the recitation, there are factual
allegations when there was alleged specific gun fire causing harmful and offensive contact. In regards to the
consent, it’s precedent that consent must be affirmatively and voluntarily given for it to be valid see Schneckloth
v. Bustamonte at 412. So despite it not being explicitly said no consent was given, there was no allegation
saying that they voluntarily and affirmatively gave the Defendant consent. Thus it’s no consent is assumed and
all the elements of claim are present.
It is clear that the summons was served incorrectly and not in accordance with rule 4 of the civil
procedure rule. As the Plaintiff only served the summons and not the complaint. The Plaintiff attempted to
amend the service however due to the pending decision on the motion to dismiss it was denied. Despite this
occurrence, there was no impact on the proceedings as the counsel for the Defendant was in the channel before
even the Defendant was served the summons. Although this isn’t excusing the improper service it does provide
grounds for reservice of the summons rather than it being dismissed on court jurisdiction. If it were to be
dismissed it would take up court resources if a refile would occur and wouldn’t focus on the merits of the case.
CONCLUSION
The court holds that the Defendant’s Motion to Dismiss this case without prejudice is DENIED.
The following are ordered:
1. COUNT ONE - WRONGFUL DEATH accordingly is dismissed.
2. COUNT TWO - ASSULT accordingly is dismissed.
3. The Defendant is to be re-served within the next 48 hours the 4th of June at 3:30 AM MST.
SO ORDERED, ADJUDGED AND DECREED.
At Palmer, Ridgeway, this 2nd day of July, 2024.
/s/
MAGISTRATE JUDGE
Document record
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Jun 1, 2024 12:00 PM
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Jun 1, 2024 12:00 PM
Filing code
COMPLAINT
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theiceshifter
Notes
MotionRuling_RSC-CV-2973_0529-070224.pdf — archived from the Trello docket (https://trello.com/c/AQiPysCh)
