Is a motion to dismiss with counterclaim sanctioned by the Rules of Court? (Bar 1992)
Is a motion to dismiss with counterclaim sanctioned by the Rules of Court?
a. If your answer is YES state your reasons.
b. If your answer is NO, give your reasons and state what the defendant should instead file in court to preserve his counterclaim while maintaining the ground asserted in his motion to dismiss as an issue that should be the subject of a preliminary hearing.
b. If your answer is NO, give your reasons and state what the defendant should instead file in court to preserve his counterclaim while maintaining the ground asserted in his motion to dismiss as an issue that should be the subject of a preliminary hearing.
No, because a counterclaim is contained in an answer and not in a motion to dismiss.
What the defendant should do is to plead the ground of his motion to dismiss as an affirmative defense in his answer, together with his counterclaim, and ask for a preliminary hearing on his affirmative defense as if a motion to dismiss has been filed. In the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss has been filed.
The dismissal of the complaint after preliminary hearing shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer (Rule 16, Sec. 6).
