What is a Motion to Dismiss?

What is a Motion to Dismiss?

A motion to dismiss (aka demurrer in some states) is a powerful litigation tool that can stop a lawsuit cold in its tracks. When granting a motion to dismiss, the judge essentially decides the case in the defendant’s favor — most often denying the plaintiff the opportunity to go to trial.

Whether you are a plaintiff filing a complaint — or a defendant considering how to respond to a complaint— you must understand the practical effects of motions to dismiss, how they work, and the standards for prevailing on (or defeating) a motion to dismiss.

Motion to Dismiss Definition and FAQs

In legal terms, a motion is a formal request (often in writing) by a party in a lawsuit — asking the judge to take a specific action in the case.

A motion to dismiss asks the judge to dismiss the complaint (or certain claims of the complaint) because it lacks legal sufficiency to go to trial. If the judge grants the motion, the complaint (or some of its claims) will be dismissed.

Depending on the circumstances, the plaintiff may be granted permission (“leave” in Legalese) to amend the complaint and thereby get a “second bite at the apple.” Permission to amend the complaint is more often granted where the defects are capable of being fixed (“cured” in Legalese) by amending the complaint.

Check out Motions: Practice and Procedure to learn more about the importance of motions in a lawsuit:

What are grounds for filing a motion to dismiss?

Grounds for filing a motion to dismiss differ among jurisdictions. Make sure you follow the rules in your jurisdiction. These may include the following (or other) grounds:

    1. The plaintiff did not serve the summons and complaint properly;
    2. The court lacks jurisdiction to hear the case (personal jurisdiction or subject matter jurisdiction);
    3. The venue is improper; or

    4. The plaintiff failed to state a valid claim in the complaint.

What is a motion to dismiss with prejudice?

In general, when a motion to dismiss with prejudice is granted, the plaintiff cannot re-file or file another complaint relating to the same events or set of facts. 

EXAMPLE #1: Herb v. Fran

Plaintiff Herb sues Defendant Fran for breach of contract for failure to repay a $15,000 personal loan. Fran files a motion to dismiss arguing that the statute of limitations has already expired and that the claim against her is therefore barred. 

The judge grants the motion to dismiss with prejudice. Herb’s lawsuit is now dismissed and he cannot re-file it or another lawsuit based on the same set of facts.

[Note: this article is not state-specific. Make sure to read and follow the rules in your jurisdiction].

What happens at a motion to dismiss hearing?

At a motion to dismiss hearing, the parties will stand before a judge who will decide whether to grant the motion or deny it. Note that in many federal (and some state) courts, motions to dismiss may be decided solely “on the papers” without requiring an actual hearing with the parties.

Each jurisdiction has its own rules regarding motion procedures and requirements. Make sure you follow the rules in your jurisdiction.

Generally, at a motion to dismiss hearing, the defendant who filed the motion will be present and may have an opportunity to address the court and present oral argument. The plaintiff may also have the opportunity to address the court with arguments in opposition to the motion.

What are the standards for granting a motion to dismiss?

When ruling on a motion to dismiss, the judge generally must assume that the allegations in the complaint are true, and with that in mind, evaluate the complaint to determine whether it is legally sufficient to support a claim against the defendant. [Remember to read and follow the rules in your jurisdiction].

In other words, the judge looks to see whether the facts alleged in the complaint add up to to a valid legal basis to maintain the lawsuit. Judges generally may not consider whether the claims are plausible or even credible, and must focus on the facts as alleged in the complaint.

If the judge determines that the complaint does not support a valid legal claim, he or she may dismiss the case. 

On the other hand, if the judge determines that the plaintiff has stated a valid claim in the complaint, the judge will deny the motion to dismiss and allow the case to proceed.

EXAMPLE #2Celine v. Harold

The judge may also dismiss one or more claims but not the entire complaint.

For example, let’s say that Plaintiff Celine files a complaint alleging two claims against Defendant Harold based on: (1) breach of contract; and (2) fraud.

Defendant Harold files a motion to dismiss the entire complaint (both claims). The judge considers the motion but rules that that the breach of contract claim is dismissed because there was no valid contract; however, the judge denies the motion to dismiss as to the fraud cause of action, determining that Celine has stated a valid claim for fraud and may proceed with it.

This is an example of a motion to dismiss that gets rid of one or more claims, but not the entire lawsuit. 

This is why it is crucial to evaluate the legal merits of your claims before filing a lawsuit. Learn more about planning, preparing, and filing a complaint in a lawsuit.

Legal Grounds for a Defendant to File a Motion to Dismiss

If you've been served with a lawsuit naming you as a defendant, you may have the legal ground to file a motion to dismiss. This depends on the laws and rules in your jurisdiction, and on the strengths and weaknesses of the plaintiff’s complaint. 

Whether you are representing yourself in court “pro se” or “pro per” (or are an attorney representing a defendant), you will do well to carefully evaluate the plaintiff’s complaint for deficiencies and develop a strategic response to the complaint — if you want to start your defense on solid ground.

Not every complaint is subject to a motion to dismiss — but when it is possible to get rid of a lawsuit early on and spare the headaches and hassles of a lengthy lawsuit — you may want to carefully consider a motion to dismiss.

Learn more in Getting Sued: How to Respond to a Lawsuit:


How a Plaintiff Can Defeat a Defendant’s Motion to Dismiss

If you are on the other side of the legal battle as a plaintiff — and your opponent has filed a motion to dismiss — you need to act quickly and efficiently.

There are limits on how much time you have to respond to a motion to dismiss. If you do not file a response (aka opposition or reply) to the motion to dismiss — the court will assume you have no objection to the motion or cannot come up with a valid argument — and the motion to dismiss will likely be granted. Case closed. 

If you don't properly and adequately respond to the motion to dismiss — you will likely end up with your lawsuit (or at least some of the claims in your complaint) dismissed. 

If you'd like to learn more about motions generally, and motions to dismiss in particular, we highly recommend you take a look at our litigation tutorial Motions: Practice and Procedure. 

The video tutorial will help equip you to understand how motions work. Plus, you'll learn strategies and other tips to help you respond to a motion to dismiss as well as educate you on other potential motions that you may consider filing (or have to oppose) in your lawsuit.  

Learn more.

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