Motion to dismiss how to#

The judge may also dismiss one or more claims but not the entire complaint.įor 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.ĭefendant Harold files a motion to dismiss the entire complaint (both claims). 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. If the judge determines that the complaint does not support a valid legal claim, he or she may dismiss the case.

Judges generally may not consider whether the claims are plausible or even credible, and must focus on the facts as alleged in the complaint. 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. When ruling on a motion to dismiss, the judge generally must assu me 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. What are the standards for granting a motion to dismiss? The plaintiff may also have the opportunity to address the court with arguments in opposition to the motion. 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. Make sure you follow the rules in your jurisdiction. 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.Įach jurisdiction has its own rules regarding motion procedures and requirements. What happens at a motion to dismiss hearing?Īt a motion to dismiss hearing, the parties will stand before a judge who will decide whether to grant the motion or deny it. Herb’s lawsuit is now dismissed and he cannot re-file it or another lawsuit based on the same set of facts. The judge grants the motion to dismiss with prejudice. Fran files a motion to dismiss arguing that the statute of limitations has already expired and that the claim against her is therefore barred.

Plaintiff Herb sues Defendant Fran for breach of contract for failure to repay a $15,000 personal loan. 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. What is a motion to dismiss with prejudice?

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

The court lacks jurisdiction to hear the case (personal jurisdiction or subject matter jurisdiction).

The plaintiff did not serve the summons and complaint properly.

These may include the following (or other) grounds: Grounds for filing a motion to dismiss differ among jurisdictions. If the judge grants the motion, the complaint (or some of its claims) will be dismissed.ĭepending 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.Ĭheck 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? 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.Ī 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.

Motion to dismiss how to#

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. 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.

A motion to dismiss (aka demurrer in some states) is a powerful litigation tool that can stop a lawsuit cold in its tracks.