A motion to dismiss or motion for dismissal is a motion made in a civil case, where one party asks the court to dismiss or “throw out” the case without reviewing all of the facts and legal arguments of the case. A motion to dismiss can be filed at any time, though it is usually a pretrial motion used by the defendant at the beginning of the proceedings.

A motion to dismiss will allege that based on the facts and allegations contained in the complaint, as well as any exhibits that have been filed with the complaint, the claim is not valid. Therefore the claim should not proceed any further. 

A motion to dismiss might also be known as a “demurrer.” A demurrer is a written objection to a claim or claims in a complaint which alleges that even if all of the facts are true, there is no legal basis for the claim to proceed. Essentially the defendant makes the argument that the plaintiff has failed to state a claim for which relief can be granted, therefore it should be dismissed.

When Can a Motion to Dismiss be Filed?

A motion to dismiss can be filed at any time. They are usually filed by defendants early on in the lawsuit, before they have filed an answer. Often a motion to dismiss is alleging that the claim should not proceed because of an issue unrelated to the facts.

If the defendant answers the complaint they have waived their right to file a motion to dismiss based on the allegations in the complaint. It is important to check the rules for civil procedure in the jurisdiction where the lawsuit was filed to know how long you have to file a motion to dismiss after being served with a complaint.

A motion to dismiss can ask the court to throw out all or some of the claims contained in the complaint.

What Are Some Reasons Why a Motion to Dismiss Can Be Filed?

A motion to dismiss is often filed based on procedural reasons, rather than the merits of the claim. Some reasons a party might 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.
  • The plaintiff failed to name a necessary party in the complaint, or named the wrong party.

The defendant might 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 has not alleged a valid cause of action or has failed to allege all of the elements required for a particular cause of action. 

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

It is not true that only a defendant can file a motion to dismiss. A plaintiff can file a motion to voluntarily dismiss the case before the defendant has filed their answer. After the defendant has filed their answer to the complaint, the plaintiff and the defendant can come to an agreement and file a motion with the court to dismiss the case. The court can also decide on its own to dismiss the case “sua sponte”, though a motion to dismiss would not be filed in that situation.

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

How Do I File a Motion to Dismiss?

The most important thing to keep in mind when filing a motion to dismiss is the deadline for filing. This, and 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 motion to dismiss procedure is comprised of the following steps:

  • First, the motion should be filed before filing an answer to the complaint. 
  • The motion must be filed with the court and served on the other 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.
  • The judge will rule, and if the motion is granted the case may be dismissed with prejudice or without prejudice. The plaintiff has the opportunity to file their complaint again the case was dismissed without prejudice. 

Do I Need a Lawyer for Help With Pretrial Motions?

There are many procedural rules to follow when you are a party to a civil or personal injury lawsuit. It is important to hire an experienced personal injury lawyer to represent you. A lawyer’s job will include identifying whether to answer the complaint or writing a motion to dismiss and filing that with the court first.