What is a Motion to Dismiss? Understanding Legal Terms

In typical legal proceedings, a defendant will be served with a complaint from the plaintiff. The complaint is, in effect, the case and accusations made against an individual, group, or entity. In the event that the defendant’s counsel believes that the complaint has no basis in law, fact, or is otherwise unmerited to be before the courts, they can make a motion for dismissal. 

A motion to dismiss is an attempt by either side (the defense or the prosecution) to have a case thrown out by the courts. For a trial to be dismissed, the judge must agree that the legal proceedings were invalid prior to the trial beginning. At the beginning of the trial, the motion will ask the court to review the defendants’ legal analysis of the case including the flaws and pitfalls presented by the plaintiff. The court judge will then decide whether to uphold the motion and dismiss the case or they will reject the motion and proceed with the trial. If the trial is dismissed, there will be no discovery, trial, or extensive costs.  It would mean that the trial you were worrying about is effectively over before it has even started. 

Grounds for filing a motion to dismiss

A successful dismissal is one of the most relieving results for a litigator and defendant. For a case to be dismissed, the defendant’s counsel will have successfully argued that the trial should end and that they do not deserve to be charged. However, the decision to dismiss is not taken lightly by a court judge or accepted quietly by the plaintiff. There are a host of grounds for dismissal that must be clearly proven in order for the court judge to uphold the motion. 

Special Offer
50+ essential legal templates for Your business and personal life
Special Offer

The vast majority of motions to dismiss fall under the Federal Rules of Procedure. Rule 12 deals with Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing and lays down 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. In essence, is the case in the right court and appealing under the right law for the trial? For example, a bankruptcy court does not have the subject-matter jurisdiction to hear a murder trial. This grounds for dismissal most often pertains to state-based courts that have particular limitations regarding jurisdiction and grounds. Often subject-matter dismissals are reduced at the Superior or Supreme court levels. 
  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,  both parties must be residents of 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 court may have personal jurisdiction, but the specific geographic location is an inappropriate location to try the particular case. In the instance where the location of a court impacts how the trial may progress, litigators may consider where there is too high a possibility for unfair treatment in a particular location. 
  4. 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 (typically semantic) criteria for their case to be legally tried. However, a motion to dismiss for the insufficient process will typically only be granted when the defect is prejudicial to the defendant. Otherwise, the court will likely allow for an amendment to correct the defect.
  5. Rule 12(b)(5) Insufficient Service of Process: If a judge believes that corners were cut and or that any suggestion that the defendant is being denied a fair trial exists, they may dismiss under insufficient service of process. This is usually proposed where the defendant has not been given fair notice for the impending trial. 
  6. 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 justify all the elements made or does not show evidence of any measurable injury suffered in the alleged action. If the plaintiff cannot provide any or enough evidence to implicate the defendant, the case will be dismissed. 
  7. 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. 
  8. 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 defence unsuccessfully tried to argue. The statute of limitations varies from state to state.
  9. A settlement has been reached. Of course, if a settlement is reached ahead of trial, the trial is dismissed and the court is not required.

How to file a motion to dismiss?

Motions to dismiss and their procedures vary in different jurisdictions. If your case is filed in a different area to where you reside, make sure to fully understand the process in that district/state. 

Motions for dismissal must be submitted to the court in writing or verbally at the beginning of the trial before an answer is issued to the plaintiffs complaint. The defendant will file the motion to dismiss to both the court and the opposing counsel. This is to give the plaintiff a fair and ample opportunity to make an argument against the motion while also allowing the judge to assess the facts. In cases where the plaintiff does not reply to the motion, it is assumed to be without objection, meaning the judge will grant the dismissal.

While each motion for dismissal 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 ruling under which the motion falls and how it was violated; and
  • A persuasive and logical reason for a motion to dismiss.

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, there could be reasons for a motion to dismiss.

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 three options – to dismiss with or without prejudice, or to dismiss sua sponte. Then a motion to dismiss is granted with prejudice, this means that the decision made by the judge is final. The case is over and cannot be brought before the courts again. 

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. In the rare circumstance of dismissal ‘sua sponte’, the judge may dismiss the current case but order a new trial. 

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 defence 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 Abject 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 or sua sponte can still be deemed a success to either buy you more time or prove that the plaintiff’s case is not watertight. If you are considering a motion to dismiss, ensure that you have covered all of your bases prior to your hearing.

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 make Your experience on the Portal greater. To learn more about Cookies we use, please read Our Cookie Policy. Do you allow us to use Cookie?
Learn more Accept Cookies