JASON A.

AMPONG
Remedial Law Review

What happened to each of the grounds for a motion to dismiss under Rule 16 of the
old 199 Rules on Civil Procedure?
The grounds for a motion to dismiss under the Old Rules are transposed in the New
Rules and can be raised as affirmative defenses.
The following grounds for motion to dismiss are transposed to Sec. 12, Rule 15 of the
Amended Rules of Civil Procedure, to state:
Sec. 12. Prohibited motions. – The following motions shall not be allowed:
Motion to dismiss except on the following grounds:
1. The court has no jurisdiction over the subject matter of the claim;
2. That there is another action pending between the same parties for the
same cause; and
3. That the cause of action is barred by a prior judgment or by the statute
of limitations.
Further, the following can no longer be raised as grounds for motion to dismiss, but are
now considered as affirmative defenses found in Sec. 12, Rule 8, to wit:
a. That the court has no jurisdiction over the person of the defending party;
b. That the venue is improperly laid;
c. That the plaintiff has no legal capacity to sue;
d. That the pleading asserting the claim states no cause of action; and
e. That a condition precedent for filing the claim has not been complied with.
Furthermore, Sec. 13 of Rule 15 of the Amended Rules considers the following as
affirmative defenses which shall bar the refiling of the same action or claim:
1. That the claim or demand set forth in the plaintiff’s pleading has been paid,
waived, abandoned, or otherwise extinguished; and

2. That the claim on which the action is founded is unenforceable under the
provisions of the statute of frauds.

What is a pro forma motion?

A pro-forma motion is one which does not state the relief sought to be obtained by the
movant. As a consequence of failure to specify the relief sought for, the document is
treated as a mere scrap of paper, and the court has no reason to consider it. (Domingo
Marcial v. Hi-Cement Corporation/Union Cement Corporation)

In Boiser v. Judge Aguirre, the Court held that “a motion without notice of hearing is
pro forma, a mere scrap of paper. It presents no question which the court could decide.
The court has no reason to consider it and the clerk has no right to receive it.

What is an ex parte motion and why is it allowed?

Sec. 4 of Rule 15 of the Amended Rules of Civil Procedure provides that a non-litigious
motions (ex-parte motions) are motions which the court may act upon without
prejudicing the rights of adverse parties. These motions include the following, to state:
a. Motion for the issuance of an alias summons;
b. Motion for extension to file answer;
c. Motion for postponement;
d. Motion for the issuance of an alias writ of execution;
e. Motion for the issuance of a writ of possession;
f. Motion for the issuance of an order directing the sheriff to execute the final
certificate of sale; and
g. Other similar motions.
These motions shall not be set for hearing and shall be resolved by the court within five
(5) calendar days from receipt thereof.

What happens to the counterclaim when a complaint is dismissed on motion by the

plaintiff or due to the fault of the plaintiff?
Sec. 2 of Rule 17 of the Amended Rules provides tha if a counterclaim has been pleaded
by a defendant prior to the service upon him or her of the plaintiff’s motion for
dismissal, the dismissal shall be limited to the complaint.
Moreover, the dismissal shall be without prejudice to the right of the defendant to
prosecute his or her counterclaim in a separate action unless within 15 calendar days
from notice of the motion he or she manifests his or her preference to have his or her
counterclaim resolved in the same action. Unless specified in the order, a dismissal
under his paragraph shall be without prejudice.