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. 

The Basics Mean of Motion To Dismiss

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.

Grounds for Filing a Motion To Dismiss

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:

  1. Rule 12(b)(1) A Lack of Subject-Matter Jurisdiction: Subject-matter jurisdiction refers to the authority of the court to hear and process the case.  It involves the issue of whether the case is in the right court and appealing under the right law.  For example, a bankruptcy court does not have the subject-matter jurisdiction to hear a murder trial. Every court is created with limited jurisdiction. Federal District Court requires that some federal law be involved in the case. State courts handle matters of state law. Small claims go to Small Claims Court, felonies are heard in the Superior or trial court, etc.

  2. Rule 12(b)(2) A Lack of Personal Jurisdiction: Personal jurisdiction refers to the power the court has to bind both parties to its decision. To achieve proper personal jurisdiction in a case, the defendant must reside or have sufficient minimum contacts in the state where the lawsuit is filed. This is often used for dismissal when the defendant is not from the state in which they are being tried. 

  3. Rule 12(b)(3) Improper Venue: In some cases, the plaintiff may have filed the complaint in the right state but in the wrong level of the court system or in the wrong geographical district. The specific geographic location is an inappropriate location to try the particular case. A judge can dismiss the case for refiling in the correct venue or transfer the case to a more appropriate venue. Rule 12(b)(4) Insufficient Process: Insufficient process means that there are defects in the summons and complaint or that a defendant was not properly served with the complaint. A plaintiff must satisfy the necessary criteria for their case to be legally tried. However, a motion to dismiss for insufficient process will typically only be granted when the defect is prejudicial to the defendant. Otherwise, the court may likely allow for an amendment to correct the defect.

  4. Rule 12(b)(5) Insufficient Service of Process: If the evidence shows that corners were cut or a significant deviation from the rules of serving the summons and complaint occurred, the judge can dismiss the case on the theory that the defendant was not legally brought before the court. 

  5. Rule 12(b)(6) Failure to State a Claim for Which Relief Can Be Granted: A motion to dismiss may be granted if the complaint does not allege all the elements of a cause of action or if the allegations do not claim facts that constitute grounds for a lawsuit. If the plaintiff cannot provide any or enough evidence to implicate the defendant, the case will be dismissed. 

  6. Rule 12(b)(7) Failure to Join a Party Under Rule 19: Under Section 7 (b)(7), the court decides that a trial should not proceed without the presence of all necessary parties who are critical to the case. A defendant who seeks dismissal under Rule 12(b)(7) must demonstrate why the absent party affects the outcome of the trial and that the ability to defend themselves will be impaired by that absence. 

  7. The Statute of Limitations has Expired: While not under Rule 12, the statute of limitations has been the reason for numerous dismissals. In the case of Bill Cosby, this is what the defense unsuccessfully tried to argue. The statute of limitations varies from state to state.

  8. A settlement has been reached. Of course, if a settlement is reached ahead of trial, the trial is dismissed by agreement of the parties with the court’s approval.

How to File a Motion To Dismiss?

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: 

  • A short, clear, and descriptive summary introduction;

  • A factually accurate but concise account of why the motion for dismissal is being proposed;

  • The specific rule and laws under which the motion falls and how it was violated; and

  • A persuasive and logical reason for a motion to dismiss.

How to file a motion to dismiss a civil case?

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.

What Are the Standards for Granting a Motion To Dismiss?

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.

Plaintiff Mary files a complaint alleging two claims against defendant Harry. Mary says that Harry breached a contract and is guilty of fraud. The defendant files a motion to dismiss both claims. The judge looks over the motion to dismiss and says that the breach-of-contract claim is dismissed because it is legally invalid, but Mary has a valid claim for fraud and can move forward with that part of the lawsuit.

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

What Happens at a Motion To Dismiss Hearing?

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.

What Is a Motion To Dismiss With Prejudice?

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. 

Plaintiff John Doe sues defendant Jane for a breach of contract because Jane didn’t properly install the drip line irrigation system at John’s house even though they signed an agreement and John paid her ahead of time. Jane files a motion to dismiss, arguing that the statute of limitations has expired and this claim is legally invalid. The judge grants the motion to dismiss with prejudice. In such a way, John’s lawsuit is dismissed, and he cannot refile using the same information*.

Motion To Dismiss for Insufficient Service of Process

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

If you are suing someone in small claims court over a civil case, every state has different rules about how that complaint is to be presented to the other party. If you file a complaint after a car accident, but you do not properly serve the paperwork to the other party, they can file a motion to dismiss.

Do I Need a Lawyer for Help With Pretrial Motions?

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.

Find a lawyer in your area today!


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.

Legal Disclaimer

Please note that Lawrina does not provide any legal services. The information on Lawrina’s Site and its downloadable content, including legal articles and templates, shall not be considered legal advice and is not guaranteed to be correct, complete, and up-to-date. If you require legal advice on your issue, we recommend you contact a qualified attorney licensed in your state. You personally assume full responsibility for any consequences, damages, and costs associated with your use of any content of Lawrina Services available on Lawrina’s Site. 

By using Lawrina’s Site you agree with mentioned above and give your irrevocable consent to comply with and to be bound by the provisions of Lawrina Service terms. 

Also Read

Accessory to Murder: What Does It Mean?
Murder charges are very serious. Equally serious are accessory to murder charges. An accessory to murder is anyone who helps someone commit murder or helps that person after the party commits a murder. This can include giving someone a boat or vehicle in which to escape, giving them money to help them get away, hiding the murder weapon, and much more. What Is Accessory to Murder? Accessory to murder is a criminal act that has to do with murder charges. The accessory to murder definition concerns
Bench Warrant in Florida: Understanding How It Works
What is a bench warrant in Florida? How do you find out if you have a bench warrant? And what can you do about it? We answer all your questions about Florida bench warrants here, from different types of warrants to how to find out if one has been made in your name, as well as what to do (and not do) when a bench warrant has been issued for you. Bench Warrants vs Arrest Warrants What is a bench warrant meaning in Florida? And are all warrants the same? No, there are actually two different kinds o
Civil Case vs. Criminal Case: What’s the Difference?
According to U.S. law, there are two different types of legal cases: civil cases and criminal cases. But how is a civil case different from a criminal case? Broadly speaking, the state initiates a criminal case, which deals with issues that affect society. A business or individual seeking financial compensation initiates a civil case. However, there are many more differences between civil vs criminal cases that are important to understand. This guide will explain the difference between a civil a
Civil Contempt vs. Criminal Contempt: What Is the Difference?
Understanding the law often requires distinguishing between similar legal terms with different meanings. Contempt of court meaning is a prime example. The concept may seem straightforward, but it significantly differs when it is divided into a civil and criminal contempt. Both are tools in the judiciary's arsenal to enforce orders and maintain respect for the legal process, yet they serve different purposes, have distinctive procedures, and lead to separate outcomes. This guide will set things c
Complete Guide on How to Start a Class Action Lawsuit
Introduction When a group of people has the same issues against the same defendant, usually a company that operates on a massive scale, they can come together and file one lawsuit. Whether you've suffered a breach of contract, fallen victim to discriminatory employment practices, or endured the consequences of a falsely advertised product, understanding class action lawsuits could be the first step toward your rightful compensation. If you wonder, "How do I file a class action lawsuit?" this gui
Class X Felony: Ultimate Legal Guide
Crimes that carry severe consequences are typically designated into one of two categories: misdemeanors or felonies. Misdemeanors are less severe crimes, while felonies are significantly more serious. Within the category of felony charges, there are various criminal charges an individual might face based on the severity of the felony. The most severe are class X felonies. But what is a class X felony in detail? In most states, a crime becomes much more severe if there is a weapon involved. When
Conspiracy Charges Sentences
In criminal law, criminal conspiracy occurs when two or more people come together and create a plan to carry out a criminal offense. To commit a conspiracy charge in Texas, the crime itself does not necessarily need to have taken place, rather there needs to be an intention for it to happen, and at least one party must commit an overt act in furtherance of the crime. For example, purchasing a gun may not be considered a criminal conspiracy Texas, but if the gun was purchased for use in a planned
Detained vs. Arrested: What’s the Difference?
In legal terms, there are significant differences between being convicted vs detained. Common law dictates that investigatory detention refers to holding someone while a suspicious situation is being checked out. When the detention continues beyond a specific time limit, it can be considered an arrest. Whereas, in comparison, an arrest is usually made under the statutory authority found in Title 18 of the United States Code and its supplemental terms, in which an individual may be held for a pro
All Guides
      Consumer Protection Law
      Criminal Law
        Accessory to Murder: What Does It Mean?
        Bench Warrant in Florida: Understanding How It Works
        Civil Case vs. Criminal Case: What’s the Difference?
        Civil Contempt vs. Criminal Contempt: What Is the Difference?
        Class X Felony: Ultimate Legal Guide
        Complete Guide on How to Start a Class Action Lawsuit
        Conspiracy Charges Sentences
        Detained vs. Arrested: What’s the Difference?
        Dismissal vs. Expungement: What Is the Difference?
        Extortion vs. Coercion: What's the Difference?
        Florida Withhold of Adjudication
        How Long Does a Felony Stay on Record?
        How to Charge Someone With Trespassing
        How to Sue Someone: Step-by-Step Guide
        Indiana Self-Defense Laws
        Infraction vs. Misdemeanor: What’s the Difference?
        Intro to Second Degree Assault
        Probation Violation in Virginia
        Probation vs Parole: What Is the Difference?
        Public Intoxication in Texas
        Stand Your Ground Law in Georgia
        Stun Gun Laws by State: The Legal Guide
        The Difference Between Direct Examination and Cross-Examination
        The Difference Between First, Second, and Third-Degree Murders
        The Difference Between Murder and Manslaughter
        Theft by Deception: Laws & Legal Definition
        What Happens at a Plea Hearing: All You Need to Know
        What Happens at an Arraignment?
        What Is a Bail Bond and How Does It Work?
        What Is a Motion to Dismiss? Understanding Legal Terms
        What Is Deferred Adjudication?
        What Is Guilty By Association in Law?
        What Is House Arrest & How Does It Work?
        What Is Simple Assault?
        What Is the Difference Between Burglary and Larceny?
      Estate Planning Law
      Family Law
      Immigration Law
    Real Estate

Frequently Asked Questions

What happens after a motion to dismiss is granted?

What happens next is contingent upon what type of decision the judge made. A judge could have dismissed with or without prejudice. If the motion to dismiss was granted with prejudice, like the case involving John and Jane earlier, as the defendant you don’t have to worry about any additional lawsuits or legal issues, unless the plaintiff wins an appeal. That same legal argument cannot be made against you. If the motion to dismiss was granted without prejudice, similar lawsuits or other legal issues might arise down the line and that’s something you should discuss and prepare for with an attorney. 

Can I get help filing a motion to dismiss?

An attorney can help you draft a motion for dismissal but there are also self-help centers for each state court to which you can turn. 

Who files the motion for dismissal?

A motion for dismissal can be filed by the defendant or by lawyers representing the defendant.

When can I file a motion for dismissal in a criminal case?

No matter the situation, as the defendant you cannot file a motion of dismissal until you have been officially charged with a criminal act.