What Is a Motion to Dismiss? Understanding Legal Terms

In typical legal proceedings, a plaintiff will have a complaint served on the defendant. The complaint is a statement of the case and accusations made against the individual, group, or entity. If the defendant’s counsel believes that the complaint has no basis in law, in fact, or is otherwise without merit, they can make a motion for dismissal. A complaint can contain one or many separate claims called counts. Each count is a separate claim for which the law may entitle them to the relief they seek. 

A motion to dismiss is an attempt by either side (the defense or the prosecution) to have a case thrown out by the courts. A motion to dismiss the complaint can be filed by either side at any time. The defendant will move to dismiss the plaintiff’s complaint, and the plaintiff will move to dismiss the defendant’s counterclaims. Counterclaims are allegations of wrongdoing filed by the defendant against the plaintiff in response to the plaintiff’s own accusations. 

In legal terms and certain lawsuits, anything referred to as a motion is considered a formal request. A formal request is presented in writing by one of the parties involved in the legal issue or legal dispute. A motion usually asks a judge to take a specific action and start a criminal procedure.

A motion to dismiss is submitted when one party believes that a claim included in their opposing party’s complaint or counterclaim is legally invalid or is lacking the right evidence to back it up. In this case, a party can submit a motion to dismiss in accordance with procedural rules. If a judge accepts that motion, the entire complaint or some of the counts might be completely dismissed with a court order. 

If a plaintiff failed to provide enough legal sufficiency and answers for some part of the civil case or lawsuit to go to trial, a judge might dismiss one part of the complaint but not all of it.

Depending on the circumstances, instead of a complete case dismissal, the judge might allow a plaintiff to voluntarily dismiss or amend parts of the complaint or lawsuit. This is usually only allowed if the issues presented in the motion to dismiss are things that the other party could legally fix without requiring the case to be refiled.

A successful dismissal is one of the most relieving results for a litigator and defendant. When a case is dismissed, the defendant’s counsel will have successfully argued that the case should end and that the facts or the law show the case never should have been filed. However, the decision to dismiss is not taken lightly by a court or accepted quietly by the plaintiff. There are a host of grounds for dismissal that must clearly be proven in order for the court judge to grant the motion. 

The vast majority of motions to dismiss fall under the Federal Rules of Civil Procedure, the rules governing the federal court system, and each state’s own version of the same rules. Rule 12 deals with Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; and Pretrial Hearing. It lays out the main grounds for dismissal. These grounds are as follows:

Motions to dismiss and their procedural requirements vary in different jurisdictions. If a plaintiff files their case in a different area than where they reside, they should make sure they fully understand the process in that district/state. 

Motions for dismissal must be submitted to the court in writing before trial or verbally at the beginning or during the trial. For more confidence, you can submit a letter of intent that expresses your will to file a motion to dismiss. The defendant will file the motion to dismiss with the court and copy the opposing party or their counsel. This is to give the plaintiff a fair and ample opportunity and a valid cause to make an argument against the motion while also allowing the judge to assess the facts and the law. In cases where the plaintiff does not answer to the motion, it is assumed to be without objection, meaning the judge will grant the dismissal.

While each motion to dismiss will be different, a general process can be followed as many of the same frameworks are required. Once you satisfy the particulars of a motion, the body should include: 

You need to know not just how to write a motion to dismiss but how to file a motion to dismiss under the rules of civil and criminal procedure, too. 

In a civil case, filing a motion to dismiss has very specific state-based rules. It is imperative that you look up the rules of court where you live so that you can follow the rules specifically. Different states have requirements for the type of paperwork to be filled out and submitted, restrictions on how that document is to be served and how far in advance of hearing it must be served.

Standards for granting a motion to dismiss have to do with legal validity. When a judge gets a motion to dismiss, the judge generally assumes that any allegations in the plaintiff’s complaint are true and then evaluates the complaint to determine whether it’s legally sufficient or legally insufficient to support a claim.

This means the judge evaluates whether the facts in the complaint provide a legally valid basis to support a lawsuit. If the judge determines that the complaint has insufficient allegations, the judge can dismiss the case.

On the other hand, if the judge determines that the plaintiff has a valid claim, they can deny the motion to dismiss and let the case go forward.

A final ruling might instead be to dismiss one or more counts from the complaint but not issue a summary judgment dismissing the entire case.

In the example above, the motion to dismiss removed one of the claims but not the entire lawsuit.

Typically, both parties will be present and standing before the court at a motion to dismiss the hearing. However, in many jurisdictions, the judge can decide on a motion to dismiss based on the paper submissions filed without requiring the presence of the defendant or plaintiff.

In considering their decision, the judge generally assumes the allegations made in a complaint are true. Given these assumptions, at a dismissal hearing, the defendant will present an oral argument to the judge, which the plaintiff can respond to. The judge then considers if the case details amount to a valid legal basis. If the case does not have the necessary grounding in law or alleged facts, there could be reasons to grant the motion to dismiss, and, in some cases, you might find that your complaint fails.

The element of prejudice in a dismissal has nothing to do with discrimination. Instead, it determines the permanence of the judge’s decision to dismiss. Where a judge grants a motion to dismiss, they have two options: to dismiss with prejudice or without prejudice. A dismissal without prejudice permits the plaintiff to file the case again but with more grounds alleged.

Dismissal with prejudice means the case is over and cannot be brought before the courts again. The party whose claim is dismissed with prejudice can then appeal.

However, if a court dismisses a case without prejudice, there is no guarantee that the plaintiff will not refile their complaint documents against the defendant in the future. 

A motion to dismiss for insufficient service of process means the complaint and summons were not properly served.

The plaintiff filed a complaint, and the defendant answered that complaint. No matter which party you are in a case or on which side of the legal argument you are, you can and should work with an attorney.

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The motion to dismiss is a powerful legal tool at the disposal of the defendant to ask the court to stop a trial before it begins. Since it demands a quick and equally substantiated rebuttal from the plaintiff, a motion to dismiss may sound like the most attractive route for a defense to open with. However, due diligence is important. 

It is important to carefully reflect on whether there are genuine grounds for dismissal or if you are just hopeful for this result. Object dismissal motions are generally not looked upon favorably by a judge as they can be deemed a waste of time and resources. Conversely, a dismissal without prejudice can still be deemed a success to either buy you more time or make your complaint not watertight. If you are considering a motion to dismiss, ensure that you have covered all of your bases prior to your hearing.