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. 

Do you need legal assistance?Find the right lawyer in your area.

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 the 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. 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.

For example: Plaintiff Mary files a complaint alleging two claims against defendants Harry. Mary says that Harry breached a contract and is guilty of fraud. The defendant Harry 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 the defendant 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 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’s 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. 

For example: Plaintiff John Doe Sue’s 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 doing so John’s lawsuit is dismissed and he cannot refile using the same information*.

*This is not a state specific example, make sure you speak with an attorney or read up on the rules relating to your jurisdiction. 

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. 

For example: 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 within a case, or on which side of the legal argument, you can and should work with an attorney.

Find a lawyer in your area today!

Final Thoughts

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.


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.

Article by Megan Thompson

Megan Thompson is a legal writer at Lawrina. Megan writes about different law practice areas, legal innovations, and shares her knowledge about her legal practice. As a graduate of the American University's Washington College of Law she is an expert of law in Lawrina's team and has a slight editing touch to all content that is published on the website.

Thank You! Welcome on board
We use cookies to improve our website's work and deliver better services.
Our use of cookies
Upgrade the manual re-reading of agreements with Loio's AI-driven Highlights. Be in full control over every editing decision, but have the power of machine learning analysis by your hand. Turn on the Highlights tool whenever you need an extra check of your document's most essential details.
These cookies collect information that is used to help Us understand how Our Site are being used or how effective Our marketing campaigns are, or to help Us customize Our Site for You. We use Google Analytics to recognize You and link the devices You use when You visit Our Site or Service on Your browser or mobile device, login to Your User Account on Our Site, or otherwise engage with Us.
Communication services
These cookies collect information that is used to help Us to facilitate the interaction with You on Our Site. We also use those cookies to improve customer service by maintaining contact with visitors of Our Site through Intercom chat.
Ad Services
We and Our third-party partners may also use cookies and tracking technologies for advertising purposes. These third-party services collect information about Your use of Our Site over time so that they may play or display ads on devices You may use, and on other websites, apps, or services.