Motion to Dismiss after Answer
by admin
WE AWESOMELY LEARNED IN LAW SCHOOL that, in civil procedure, a Motion to Dismiss (MTD) may be filed before filing an answer. Section 1 of Rule 16, Rules of Civil Procedure provides –
SECTION 1. Grounds. – Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds: xxx
Does this mean that MTD is no longer allowed after an answer has already been filed? As a rule, MTD will only be entertained if filed before the answer. Otherwise, the defendant is considered estopped from filing the same. Anyway, if no MTD has been filed, any of the grounds for dismissal may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed (Section 6, Rule 16).
Affirmative defenses that are set for hearing, treated as if MTD has been filed, is in consonance with IBP-OCA Memorandum on Policy Guidelines dated March 12, 2002 which advises defendants to observe restraint in filing MTD and instead allege the grounds thereof as defenses in the Answer. Obviously, if the affirmative defenses in the answer is not set for hearing, the same will not be treated “as if a motion to dismiss has been filed.” Hence, pre-trial shall proceed.
However, there are exceptions to the rule that no MTD can be entertained after an answer has already been filed. In the case of PHIL-VILLE DEVELOPMENT AND HOUSING CORPORATION, ET AL VS MERCEDES JAVIER (G.R. No. 147738, 13 December 2005) the Supreme Court clarified that a Motion to Dismiss may be filed in certain exceptional circumstances – 
“This Court ruled that where an answer has been filed, the defendant is estopped from filing a motion to dismiss. The only exceptions to the rule, as correctly pointed out by the Court of Appeals, are:
- where the ground raised is lack of jurisdiction of the court over the subject matter;
- where the compliant does not state a cause of action;
- prescription; and
- where the evidence that would constitute a ground for the dismissal of the complaint was discovered only during the trial.”
The above-quoted pronouncement of the Supreme Court gave clear, categorical and groovy set of exceptions to the rule that prohibits the filing of MTD after an answer. Anyhow, the following are alike remedies to the filing of a MTD after answer:
- Move for a summary judgment (may be availed by plaintiff, counterclaimant and cross-claimant);
- Move for judgment on the pleadings (may be availed of by plaintiff, counterclaimant and cross-claimant); and
- File a demurrer to evidence (may be availed of by defendant). ##
