What is a Motion to Dismiss?
Created by FindLaw's team of legal writers and editors | Last reviewed May 11, 2018
This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw’s team of legal writers and attorneys and in accordance with our editorial standards.
The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area.
You were in a car accident a while ago, which didn't seem to result in that much damage to the other car or driver; but, now you've been sued by the other driver. Although you don't deny that you were involved in the accident, you don't believe that the claims in the lawsuit are valid. While you can fight the court case, it will take a considerable amount of your time and money to do so. So, you may wonder, do you have another option? Enter the motion to dismiss. While this is not a viable option for all defendants and there's no guarantee that it will be granted, there are a variety of reasons why you may want to file a motion to dismiss.
Motion to Dismiss: The Basics
A motion to dismiss can be filed by either party in a case at any time during the proceedings, but it's usually filed by a defendant at the beginning of a lawsuit. This type of motion may focus on the facts and allegations in the complaint and any documents - called "exhibits" - that are submitted in support of the complaint.
A motion to dismiss is filed when a party believes that the complaint is legally invalid, which can be based on a variety of grounds. For example, before disgraced comedian Bill Cosby's retrial, his defense team filed a motion to dismiss arguing that the sexual assault alleged in the criminal complaint had happened outside of the "statute of limitations." However, the judge dismissed the motion stating that the argument over the date of the alleged assault was a disputed issue for trial and could not be decided on the motion.
Grounds for Filing a Motion to Dismiss
A motion to dismiss can be filed on a variety of grounds, which are based on legal deficiencies. Some common grounds for filing a motion to dismiss include:
- Insufficient Service of Process: The complaint and summons weren't served properly.
- Statute of Limitations Has Expired: Each state has "statutes of limitations," or time limits in which certain lawsuits can be filed.
- Lack of Subject Matter Jurisdiction: In order for a court to rule on a case, it must have "subject matter jurisdiction," the authority to hear a particular type of case.
- Lack of Personal Jurisdiction: Similarly, a court must have "personal jurisdiction" over a defendant in order to make a decision involving the defendant. A court has personal jurisdiction over a party when he or she is a resident or has "sufficient minimum contacts" with the jurisdiction where the lawsuit has been filed.
- Improper Venue: Even when a court may have personal jurisdiction over the parties, it may be the improper "venue," which refers to the specific location of the court (based on state laws).
- Failure to State a Claim for Which Relief Can Be Granted: There are a variety of requirements with which a plaintiff must comply when filing a complaint, including a valid cause of action. A motion to dismiss may be granted if the plaintiff's complaint fails to adequately allege all of the elements of a claim or if the complaint fails to allege a measurable injury.
For other possible grounds for filing a motion to dismiss, remember to check the rules of civil or criminal procedure in the state where the lawsuit was filed. If the case is in federal court, you can check the federal rules of civil or criminal procedure to learn more.
How to File a Motion to Dismiss
As previously mentioned, the procedure for filing a motion to dismiss will depend on the jurisdiction in which the lawsuit is filed. Generally, however, a defendant must file a motion to dismiss before filing an "answer" to the complaint. If the motion to dismiss is denied, the defendant must still file their answer, usually within a shortened amount of time. It's important to be aware that specific reasons for a case dismissal must be in the first document filed with the court, otherwise that issue is considered waived.
The motion to dismiss must be filed with the court and served on the other party. The other party then has the opportunity to respond to the motion, usually within a couple of weeks. The judge will then review each side's motion, and give the court's decision at a predetermined hearing date.
Ruling on a Motion to Dismiss
When ruling on a motion to dismiss, courts generally assume that the facts and allegations in the complaint are true and will view them in the light most favorable to the plaintiff. Thus, it's generally difficult to prevail on a motion to dismiss. If it's granted, the case can be dismissed "without prejudice" or "with prejudice." If the case is dismissed without prejudice, the case can be filed again at a later time. However, if a case is dismissed with prejudice, the case is over and cannot be refiled.
It's also possible for the court to dismiss a case "sua sponte," meaning without being prompted by either party. The court has this option when grounds for a case dismissal exist. For example, if neither party has an issue with venue where the case was filed, the court may still dismiss the case for improper venue.
Should You File a Motion to Dismiss? Speak to a Lawyer to Learn More
Lawsuits have several procedural rules that plaintiffs and defendants must both follow. The failure to do so can have a negative impact on your case. As seen above, certain errors can even result in a case dismissal. Whether you're thinking about filing a lawsuit or you've had a lawsuit filed against you, the best course of action is to get in touch with a local litigation attorney to learn about all of your options going forward.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.
Contact a qualified attorney to help you with preparing for and dealing with going to court.