If the same ground is raised as an affirmative defense, the court may motu proprio dismiss the case. While a motion to dismiss is a litigious motion (Rule 15, Section 5), the court has discretion not to hold a hearing and proceed to rule on the motion. In case of affirmative defenses, however, raising other grounds (in addition to lack of jurisdiction over the person of the defendant) does not amount to a voluntary appearance. Incidentally, in case of a motion to dismiss based on improper service of summons, the court may deputize the defendant’s counsel to serve the summons. 20 of the 1997 Rules) that the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. This is a reversal of the previous rule (Rule 14, Sec. Rule 14 of the 2019 Amendments provides that the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall be deemed a voluntary appearance of the defendant (Sec. However, the 2019 Amendments recognizes one more ground - lack of jurisdiction over the person of the defendant (Rule 14, Sec. This may give rise to the impression that only three grounds may be used to support a motion to dismiss. VOLUNTARY APPEARANCEĪ motion to dismiss is a prohibited motion if not based on the three grounds mentioned above. The issuance of an order granting a motion to dismiss or affirmative defenses, based on the three grounds enumerated above, bars the refiling of the same action or claim.Įxcept these three grounds, defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived (Rule 9, Sec.
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