A "motion to dismiss" is a request that a civil case be dropped without a judgment. In other words, if a person is sued, they can give the judge a motion to dismiss, and if their reasoning is persuasive enough, the judge will kick their attacker out of court.

Generally, a motion to dismiss argues that, assuming that all the facts alleged by the plaintiff are true, the plaintiff has no legal basis of recovery.

Motions to dismiss vary from jurisdiction to jurisdiction. This writeup focuses on how such motions work in the United States federal court system.

Filing the motion

When a plaintiff starts a civil action, they send a complaint (often in the form of a summons) to the defendant. After the defendant receives this complaint, they have twenty days to answer. In most cases, the defendant can request more time for their answer, and the plaintiff will oblige (lawyers will almost always do this out of professional courtesy; people acting pro se might not).

The defendant can answer the complaint by responding with their own version of the facts, or they can file a motion to dismiss the complaint altogether. (There are a few other rarely-used motions that can be introduced in lieu of an answer to the complaint, including the motion to strike and motion for more definite statement.)

Reasons to dismiss

You can't just move to dismiss a case because you don't want to go to trial. A motion to dismiss has to have a legal basis. The possible bases of the motion are laid out in Rule 12(b) of the Federal Rules of Civil Procedure, which govern how U.S. federal courts function. As of 2004, Rule 12(b) lists seven possibilities:

  1. Lack of subject matter jurisdiction - In a 12(b)(1) motion, the defendant claims that the court cannot hear a case on the matter being brought by the plaintiff. There are two ways to claim this. The defendant can mount a facial attack, in which they argue that there is no claim under federal law, or they can mount a factual attack, in which they argue that the claim is too frivolous to warrant a hearing before the court.
  2. Lack of jurisdiction over the person - In a 12(b)(2) motion, the defendant claims that the court does not have jurisdiction over one or more of the parties in the suit. This can mean that parties are in the same state and suing over a small amount, or that one of the parties is in a foreign country not covered by the court's jurisdiction. If such a motion is filed, the plaintiff has the burden of proof to show that the parties in question are within the jurisdiction of the court.
  3. Improper venue - In a 12(b)(3) motion, the defendant claims that the case should not be in the court where it was filed. One common situation is when a contract specifies that disputes be settled in a certain court or jurisdiction, but one of the parties files suit elsewhere. Another is when the defendant is initially believed to be living near the venue, but is later discovered to be living far away. If the motion is granted, the court will usually transfer the case to a more appropriate venue.
  4. Insufficiency of process - In a 12(b)(4) motion, the defendant contests the adequacy of the summons that informed them of the lawsuit. Usually, this happens when a person or corporation's name is misspelled on the summons itself. If the motion is granted, the plaintiff usually has to make another summons and serve it upon the defendant.
  5. Insufficiency of service of process - In a 12(b)(5) motion, the defendant contests how the summons was delivered to them, or whether it was delivered to them at all. Like a 12(b)(4) motion, a successful 12(b)(5) motion will usually result in the plaintiff having to make a new summons and serve it properly.
  6. Failure to state a claim upon which relief can be granted - In a 12(b)(6) motion, the defendant argues that the facts set out in the plaintiff's complaint are not enough to warrant any remedy under the law. To grant this motion, the judge must conclude that no reasonable judge or jury could possibly rule for the plaintiff based on the facts in the complaint. Often, the defendant uses an affirmative defense, such as immunity, laches, or statute of limitations, as the basis for the motion. Once a 12(b)(6) motion is granted, the case is over and the plaintiff has to either appeal or give up. This type of motion was originally called a "demurrer," and still carries that name in many jurisdictions.
  7. Failure to join a party - A 12(b)(7) motion doesn't mean that the plaintiff is staying out of a party; it means that another defendant needs to be brought in, and the plaintiff has not made them join the suit. The plaintiff isn't required to sue everyone, but the plaintiff is required to make sure that all parties essential to a fair resolution of the suit are present. The defendant has the burden of proof to show that the party in question is essential to the claim.
  • Cound et al., Civil Procedure (8th ed., West 2001)
  • Federal Rule of Civil Procedure 12 (2004)

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