A motion is a request for a judge to do something. Quash means to say that something is invalid.
A Motion to Quash can be filed by either party in a case. It is commonly used to quash:
Motion to Quash service of process
A Motion to Quash is often used to quash service of process. Service of process is the way a person is told about a lawsuit.
Usually, a sheriff, a US marshal, or special process server must hand the defendant a complaint and summons. They can also leave it at the defendant’s home with someone 13 or older who lives with the defendant. In some cases, certified mail can be used to serve process.
After serving a person, the process server has to fill out a return of service, also called an affidavit of service, and file it with the court. A return of service is a signed statement that says where and when the person was served, and what the person looked like. The defendant can find the return of service by asking the circuit clerk for the court file.
Sometimes, the return of service will list a defendant’s description or location that the defendant knows is not theirs. The defendant can then file a Motion to Quash to tell the judge that they weren’t properly served. However, if the return of service says the right description and location, it
can be difficult to win a Motion to Quash.
For example, if the return says that the defendant was served with the summons at 1276 Main Street, but they live at 2276 Main Street, they should explain that in the motion, and attach some evidence, such as their utility bill from 2276 Main Street, to support what they say.
The Motion to Quash must tell the judge three things:
- That the defendant was never served with a summons;
- No one who lives with the defendant and who is 13 or older was served with a summons; and
- That the defendant never appeared in the lawsuit.
The motion must be notarized. It should also include details about why the service was improper to help convince the judge.
Note: If a defendant thinks they were not served properly, they should file a Motion to Quash before they file anything else in the case. If they file any other motion or pleading before filing the Motion to Quash, the judge will not consider the Motion to Quash and the defendant will not be allowed to fight improper service. The only exception to this is that a defendant can file a motion for extension of time before filing a Motion to Quash service of process.
Motion to Quash a subpoena
A subpoena is a court order that requires a person who is not a party to a lawsuit to:
- Appear in court;
- Appear at a deposition;
- Permit inspection of a place; or
- Provide certain documents.
A subpoena may be issued on behalf of a court by a judge, the court’s clerk, or by an attorney authorized to practice in the court listed on the subpoena.
Subpoenas are subject to limits. There are limits on how far a subpoena can require someone to travel to comply. The geographic limit varies depending on whether the subpoena is from state or Federal court and whether the testimony would be in a deposition or trial. A subpoena must be issued in advance, for instance, at least 7 days before the required appearance if the subpoena is for a state court case. A subpoena cannot be too much of a burden. For example, requiring a person who is not involved in a lawsuit to find, review, and copy thousands of pages of documents might be considered an undue burden because of the time and cost involved.
However, it is illegal to ignore a subpoena. A person who ignores a subpoena after they have been served may be held in contempt and could be fined or even arrested. A Motion to Quash a subpoena is usually the only way a person can avoid following a subpoena.
If the person who received a subpoena doesn’t agree that they should have to appear, permit the inspection, or provide documents as requested, they should file a Motion to Quash the subpoena. At the latest, a Motion to Quash must be filed before the date listed for compliance on the subpoena, but the state or Federal rules may require it to be filed earlier, such as 14 days after the person was served with the subpoena. Reasons to quash a subpoena include that it:
- Does not allow a reasonable time to comply;
- Requires the person to go beyond the geographic limits allowed for a subpoena;
- Requires the person to disclose privileged matter, such as things they told their attorney; or
- Subjects the person to undue burden.
If the court grants the Motion to Quash the subpoena, then the person doesn’t have to follow the subpoena. A court may also modify the subpoena to make it more reasonable or to require the person who issued the subpoena to pay for reasonable expenses, like copy costs or lost wages.
Motion to Quash evidence
A Motion to Quash evidence asks a judge to suppress a piece of evidence because there is a problem with it. If the motion is granted, the evidence can’t be used in court. A Motion to Quash evidence is typically used in a criminal case and often called a “Motion to Suppress Evidence.” Some examples of when a Motion to Quash evidence can be used:
- The chain of custody was broken;
- The evidence is confidential or highly prejudicial; or
- The evidence was tampered with.
A “Motion to Strike” is a similar motion that is more commonly used in civil cases to tell a court that evidence or argument in a motion is not proper, or to otherwise ask the court to not consider something that was filed. For instance, a Motion to Strike could be used if the other side filed a motion after the deadline, and the person wants to ask the court to not consider the late motion.
How to file a Motion to Quash
Learn more about Preparing, filing, and presenting motions in court.