Q: Counter claims left open despite motion to dismiss because they are evidence to the case
A case was filed by plaintiff and in answer to Summons defendant listed 4 counter claims without specific remedies. This is because the value has not been determined. The work is incomplete by plaintiff. Plaintiff has filed a motion to dismiss defendants counter claims. This was a window install and the windows do not work properly. This is critical evidence to the case and should not be dismissed
A: I’m not complete sure what your question is. Generally a court does not consider evidence on a motion to dismiss but rather the sufficiency of the complaint itself. So the court would assume that all the facts alleged in the complaint were true for the purpose of the motion and then decide if, even in that favorable light, the motion makes a valid claim for relief. It is a high bar, but you do not want to risk the case being thrown out, so it would not hurt to have an attorney review the case and the filings.
A: Understanding your intended question is challenging, but I'll take a stab. There is a breach of contract claim and the defendant filed several counterclaims. Plaintiff seeks dismissal of the counterclaims before trial which will be unlikely unless there are no material facts to be determined and summary dismissal is granted or the law makes such counterclaim inapplicable. Typically, the court at trial does the fact finding and then applies the law to both the claim and any counterclaim. You should consult a lawyer if you are representing yourself and this case involves serious money, although it sounds like a small claims court matter, in which case you might still wish to at least consult an attorney with these and any other questions.
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