For any lawyer defending a client in a lawsuit, they require the ability to utilize a powerful tool in their arsenal—the motion to dismiss. By seeking to dismiss a case early in the litigation, you can potentially prevail without the trouble of full-blown discovery and a trial.
To effectively utilize this litigation tool, you must understand when a motion to dismiss is appropriate, how to prepare the motion, and all the other factors that go into maximizing your chances of success. In this blog, we explore all these facets of motions to dismiss.
We should first discuss the basics of the motion to dismiss–what it is, when it can be filed, and why you would file it.
A motion to dismiss is a motion filed on behalf of a defendant asking the court to dismiss the plaintiff’s case. Alternatively, the motion could seek dismissal of one or more causes of action alleged in the complaint. In some U.S. jurisdictions, such as California, these filings are known as “demurrers.” However, “motion to dismiss” is the prevailing terminology in most states and U.S. federal court.
A motion to dismiss is generally filed at the outset of the case as the first responsive pleading to the plaintiff’s complaint. The defendant generally waives their right to file a motion to dismiss once they file an answer to the complaint. There are some exceptions where a motion to dismiss may be filed at a later point in litigation, such as if the plaintiff amends the complaint. Check the rules of your specific jurisdiction to see if circumstances arise where the motion for dismissal can be filed after answering.
The specific grounds allowed for filing a motion to dismiss may vary slightly from jurisdiction to jurisdiction, but the following are among the most common:
Once you’ve identified the need for a motion to dismiss, which can be filed on a timely basis, you must do the hard work of preparing that motion.
First, you must conduct all the necessary research that will provide a legal basis for your motion to dismiss, whether that includes case law, statutory law, or other legal bases. Most motions to dismiss are based on the allegations of the complaint alone, not actual evidence, so it will generally not be necessary to gather supporting documentation or other evidence. However, some types of motions to dismiss–inadequate service of process, as one example–may require supporting declarations or documentation.
Once you have compiled the research or evidence that will support your motion to dismiss, you must craft a persuasive argument. Judges apply exacting standards to dismissal motions and will generally only grant them with an airtight legal and factual basis. Accordingly, familiarize yourself with the legal standard that must be met for your particular type of motion to dismiss and use the most persuasive components of the relevant law.
Check the standards for your jurisdiction on formatting and structuring of motions, as well as for dismissal motions in particular. This is important not only so the court will not reject the filing, but to provide the judge with the best possible impression when ruling on your motion. Within the parameters for your motion in your jurisdiction, include a short and clear introduction that precedes the main argument and conclusion.
Follow the applicable rules and procedures for filing with your court. U.S. federal court accepts electronic filings only, and many state courts also have eFiling procedures, so take advantage of this option when possible. Clio File enables legal professionals to file, serve, and deliver court documents directly from our industry-leading legal practice management system. That means firms will be able to:
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You must also serve the motion to the opposing party, as well as any other parties to the case. The plaintiff will have the opportunity to file an opposition to your dismissal motion. If your jurisdiction gives you the power to submit a reply brief, be sure to do so. Check your court rules for the applicable deadlines and procedures pertaining to opposition and reply papers.
At the hearing on the motion, be prepared to present your arguments concisely and forcefully, as well as respond to the plaintiff’s likely counterarguments. Many times the court will issue a tentative ruling before the hearing–if so, be sure you are intimately familiar with it and can tailor your arguments accordingly.
During the hearing, listen carefully to opposing counsel’s arguments so you can respond effectively. Also pay attention to the judge’s questions and comments directed to both yourself and plaintiff’s counsel. If you can determine which way the judge is leaning, or which arguments the judge finds compelling or unpersuasive, you can adjust your arguments appropriately.
If the court grants your motion to dismiss the entire case, the case is dismissed, but the plaintiff has the right to appeal the decision. Then there is the potential you will have to file an opposition to their appellate brief and proceed through the appellate process, possibly to the point of a hearing in the appellate court.
The court may also dismiss one or more claims or the entire case but with leave to amend. This allows the plaintiff to amend the complaint to see if they can fix the defects in the original complaint. This outcome is most common for dismissals on the grounds of failure to state a claim–since the plaintiff may be able to fix these legal defects. Another motion to dismiss may be necessary if the plaintiff still fails to state legally viable claims against your client, or if jurisdiction or statute of limitations issues persist with the amended complaint.
When the court denies your motion to dismiss, the litigation generally proceeds. Some courts, like U.S. federal courts, only permit appeals from final judgments, meaning you cannot appeal the court’s denial. Check with your jurisdiction to explore the possibility of an appeal from a non-final judgment, commonly known as an interlocutory appeal. Keep in mind that you may still be able to seek the pre-trial dismissal of the case at a later point, such as with a pre-trial summary judgment motion.
When defending a client in a lawsuit, filing a motion to dismiss is often the first step. In light of the strategy and work that goes into a dismissal motion, this means you will need to get up to speed on the case quickly. Ensure you are on top of the deadlines for any responsive pleading and allocate time for research and gathering facts.
You should also note that many clients often weigh costs versus benefits before hiring an attorney. If you see a potential for a motion to dismiss, this is an opportunity to inform the client how much legal expertise is necessary for such a filing. In other words, they will be facing a daunting challenge trying to represent themselves and will likely need an attorney more than ever.
As an attorney, if you can master the art and science of filing motions to dismiss, you will have a sizable advantage in defending your clients against lawsuits. Follow these basic principles, as applicable to your jurisdiction, to help achieve this mastery.
This information applies only to practices in the US. This article is provided for informational purposes only. It does not constitute legal, business, or accounting advice.
We published this blog post in March 2024. Last updated: July 9, 2024 .
