Motion for Dismissal Lawyers

Where You Need a Lawyer:

(This may not be the same place you live)

At No Cost! 

 What is a Motion to Dismiss?

A motion to dismiss, or motion for dismissal, is a motion that can be filed in a civil lawsuit. A motion to dismiss may be filed at any time during the case.

However, it is typically filed as a pre-trial motion by a defendant. A pre-trial motion is a motion that is filed before a trial begins.

If filed as a pre-trial motion, a motion to dismiss is a request to the court to dismiss a case before it starts without reviewing any of the facts or legal arguments in the case. A pre-trial motion to dismiss is often based on the information, or the lack of information, that is contained in the plaintiff’s original complaint.

A plaintiff’s complaint is required to provide certain information regarding the main legal conflict in the case. A defendant may file a pretrial motion to dismiss in response to a complaint stating that, based on the facts and allegations contained in the complaint, in addition to any exhibits that have been filed with the complaint, the claim is not valid.

The defendant will argue that, because the plaintiff’s claim is not valid, the case should not proceed any further. A motion to dismiss may also be referred to as a demurrer.

A demurrer is a written objection to the claim or claims in a complaint that alleges that, even if all of the facts in the complaint are true, there is no legal basis for the claim to proceed. In this type of motion, the defendant argues that the plaintiff has failed to state a claim for which relief can be granted, and therefore, the claim should be dismissed.

When Can a Motion to Dismiss be Filed?

As previously noted, a motion to dismiss may be filed at any time. However, this type of motion is typically filed by a defendant early in a lawsuit, prior to filing an answer.

It is common for a motion to dismiss to allege that a claim should not proceed because of an issue that is unrelated to the facts. It is important to note that, once a defendant answers a complaint, they have waived their right to file a motion to dismiss based solely on the allegations of the complaint.

It is important for an individual to check the rules for civil procedure in the jurisdiction where the lawsuit was filed to determine how long a defendant has to file a motion to dismiss after being served with a complaint.

What Are Some Reasons Why a Motion to Dismiss can be Filed?

A motion to dismiss may also be filed based on procedural reasons in addition to the merits of a claim. Common reasons a party may file a motion to dismiss include:

  • The statute of limitations has expired;
  • The court does not have jurisdiction over the parties or the subject matter of the case;
  • The venue, or location where the lawsuit was filed, is not proper;
  • The complaint was not served on the defendant properly; or
  • The plaintiff failed to name a necessary party or the plaintiff named the wrong party in the complaint.

A defendant may also file a motion to dismiss because the plaintiff failed to state a claim for which relief can be granted. In other words, the plaintiff did not allege a valid cause of action or has failed to allege all of the elements that are required for a specific cause of action.

For example, in a personal injury case that claims the defendant was negligent, the plaintiff is required to allege all of the elements of negligence. If, for example, the complaint does not include an accusation that the defendant caused the harm to the plaintiff, the defendant may file a motion to dismiss based on the plaintiff’s failure to include the element of causation in the claim.

It is important to note that a plaintiff can also file a motion to voluntarily dismiss their case before the defendant files an answer. If the defendant has already filed their answer to the complaint, the plaintiff and the defendant can file a motion together with the court to dismiss the case.

The court may also dismiss a case sua sponte, or on its own. In that situation, a motion to dismiss would not be required.

In certain cases, a plaintiff can dismiss their case by filing a notice of dismissal with the court. This must be filed before a defendant has answered the complaint and possibly alleged their own counterclaims against the plaintiff.

What Are the Grounds for a Dismissal?

A case may be dismissed for many different reasons. Both the court and the defendant will review the plaintiff’s complaint to ensure the case should proceed.

Common grounds on which a motion to dismiss may be granted include:

  • Lack of jurisdiction by the court;
  • Improper venue for the lawsuit;
  • Violations of filing deadlines and other civil procedure matters; and
  • Failure to state a claim.

What is a Failure to State a Claim?

One common reason a lawsuit is dismissed is failure to state a claim. This occurs when a plaintiff fails to properly identify the legal issue for which they are suing the defendant.

For example, in a personal injury claim, the plaintiff must provide evidence that all the elements of proof will be met during the lawsuit. If the lawsuit is based on negligence, these elements include:

  • The existence of a duty of care;
  • Breach of duty;
  • Causation; and
  • Provable damages.

If any of these elements are not included or are not adequately addressed in the complaint, the defendant may file a motion to dismiss for failure to state a claim.

How Do I File a Motion to Dismiss?

One important issue to keep in mind is the deadline to file a motion to dismiss. This issue, in addition to other important rules for filing motions with the court can be found in the rules of civil procedure for the jurisdiction where the complaint was filed.

The procedure for filing a motion to dismiss includes following considerations:

  • The motion should be filed prior to filing an answer to the complaint;
  • The motion must be filed with the court handling the case and properly served on the opposing party;
  • The other party has the opportunity to respond to the motion;
    • The deadline for responding can be found in the applicable rules of civil procedure;
  • The court will review the motion to dismiss and the response, viewing the facts and allegations in the complaint in a light most favorable to the plaintiff; and
  • The judge will rule on the motion;
    • If the motion is granted, the case may be dismissed without prejudice or with prejudice. The plaintiff has the opportunity to file their complaint again if their case was dismissed without prejudice.

Do I Need a Lawyer for Filing Pre-trial Motions?

The assistance of a civil lawyer is recommended for any type of personal injury claim, as they may be difficult to prove. Your lawyer can assist you with all aspects of your case, including pre-trial motions and the procedural aspects of a trial.

In addition, your lawyer will represent you during any trial meetings and hearings.

Save Time and Money - Speak With a Lawyer Right Away

  • Buy one 30-minute consultation call or subscribe for unlimited calls
  • Subscription includes access to unlimited consultation calls at a reduced price
  • Receive quick expert feedback or review your DIY legal documents
  • Have peace of mind without a long wait or industry standard retainer
  • Get the right guidance - Schedule a call with a lawyer today!

16 people have successfully posted their cases

Find a Lawyer