What is a motion to dismiss?
What grounds can you invoke to dismiss the complaint?
How do you draft a motion to dismiss?
In this article, we will break down the concept of motion to dismiss so you know all there is to know about it.
Are you ready?
Let’s get started!
Table of Contents
What is a motion to dismiss?
A motion to dismiss is a formal request filed by one party in a lawsuit against another to have the court dismiss an application or petition.
Typically, when a plaintiff files a lawsuit against the defendant, in the early stages of the legal proceedings, the defendant will file a motion to dismiss against the plaintiff’s application in an attempt to have it rejected right out the gate.
In the United States, over 97% of the federal lawsuits are dismissed.
A good portion of the lawsuits is settled out of court.
When there is a settlement, the case is voluntarily dismissed by the parties.
As a result, settlements count as part of the 97% dismissal percentage cited above.
Drafting a motion to dismiss?
So how do you draft a motion to dismiss?
A motion to dismiss should be drafted in such a way as to provide clear and compelling reasons to the court that the plaintiff’s complaint must be dismissed.
The goal is not to state your case on the merits but to demonstrate why the court has to dismiss the case even if you assume the plaintiff’s allegations are all true.
You must find and attack the irregularities or defects in the plaintiff’s complaint justifying the dismissal.
Here are a few tips in drafting a motion to dismiss:
- Write a compelling introduction
- Stay factually correct
- Understand the legal basis you are invoking to dismiss the case so you can target it in your motion
- Provide legal arguments supported in law
- Consider the other party’s defence against your motion
You can read the post Drafting A Motion To Dismiss for more content on this topic.
When can you file a motion to dismiss?
A motion to dismiss can be filed by any party to a lawsuit at any time during the court proceedings.
Often, the motion to dismiss is filed at the beginning of a lawsuit following the defendant’s receipt of the lawsuit.
Some grounds for dismissal may not be possible if you don’t immediately raise them.
For example, if there is a ground for raising the argument of improper venue and you don’t raise it, you can be deemed to have implicitly accepted the venue.
Grounds for filing a motion to dismiss
There are many legal arguments based on which a party may file a motion to dismiss.
The grounds for the filing of a motion to dismiss are generally found in the court’s rules of civil procedure.
Depending on your jurisdiction, you may have varying grounds.
Here are some grounds we see parties invoke to request the dismissal of a complaint:
- The court not having subject-matter jurisdiction
- The court not having personal jurisdiction
- Insufficient service of process
- Improper venue
- Plaintiff’s failure to state a claim requiring remedy
- Statute of limitation expiration
- Lis pendens, meaning that another case is pending between the same parties for the same object before another court
- Res judicata, meaning that the case has already been decided between the parties
Lack of subject-matter jurisdiction
Lack of subject-matter jurisdiction is when the plaintiff has filed an application before the wrong court.
The court will dismiss the case as it does not have the authority to decide on the matter.
For example, a commercial dispute is filed before a criminal court.
The criminal court will dismiss the case for lack of subject-matter jurisdiction.
Lack of personal jurisdiction
The lack of personal jurisdiction is when the plaintiff files a complaint before a court in a jurisdiction where the defendant did not live or there is no connection with the court.
For example, generally, the plaintiff must pursue the defendant before the courts in the jurisdiction where the defendant lives.
If the defendant lives in New York, the plaintiff cannot file a lawsuit in Florida.
The Florida court will not have personal jurisdiction over the matter.
Insufficient service of process
To proceed against a defendant, the law requires that the plaintiff serve a copy of the complaint or lawsuit to the defendant.
Generally, that’s done through a process server.
If there is a defect with the service of the process, the court may not proceed with the case.
Often, the courts do not dismiss the case but allow the plaintiff another opportunity to properly serve the defendant.
Improper venue
Improper venue is not the same thing as personal jurisdiction.
In some cases, a court may have personal jurisdiction over a matter but the venue may be improper.
For example, if a person has signed a promissory note stating that any dispute must be filed in a specific county and the plaintiff files a complaint in another county, although the court may have personal jurisdiction to hear the case but it will dismiss the case for improper venue.
Failure to state a claim
The failure to state a claim is when a lawsuit does not state an actual claim.
In other words, it’s not clear what is the plaintiff’s request or relief sought.
What is the remedy?
What does the plaintiff want from the defendant?
If the court does not see a clear and actionable claim that it can render a judgment upon, the case may be dismissed.
Statute of limitations
A court can dismiss a case, upon demand or even of its own volition when a claim is filed outside of the statute of limitations.
In many jurisdictions, to file a lawsuit for breach of contract, a party has three years to file his or her complaint from the moment an injury was suffered.
If an application is filed five years later, then it will be dismissed.
Lis pendens
Lis pendens means that a court will dismiss a case because there is another lawsuit pending before the same parties for the same thing before another court.
For example, a party files a lawsuit for breach of contract in New York will the other party files a lawsuit for breach of contract in Chicago.
The second court seized on the matter will most likely dismiss the case on the ground of lis pendens.
Res judicata
Res judicata means that a case has already been decided between the parties.
For example, a plaintiff files a lawsuit for breach of contract, the court ultimately rejects the case.
If the plaintiff files a lawsuit a second time for breach of contract against the same defendant, the court will dismiss the matter upfront.
How does the court rule on a motion to dismiss?
For a motion to dismiss to succeed, the moving party must present arguments based on the allegations, petition and exhibits submitted by the plaintiff.
In most cases, the courts will assume that the allegations in the complaint are true and will consider the grounds for dismissal in light of the most favourable outcome for the plaintiff.
For example, if a motion to dismiss is filed because a party believes that the court does not have subject-matter jurisdiction, the defendant will bring the court’s attention to the subject-matter as alleged by the plaintiff in the complaint.
Another example is a motion to dismiss filed on the basis that the complaint is filed outside of the statute of limitations.
As a side note, having a case dismissed right at the beginning of a case is not easy.
Litigation lawyers are generally familiar with the rules applicable to a motion to dismiss and will draft their complaints in such a way as to close any possible doors for the defendant to succeed with a dismissal motion.
“With Prejudice” or “Without Prejudice” dismissal
If a court dismisses a case, it can dismiss the case on “without prejudice” basis.
In other words, the plaintiff has the ability to file his or her motion again in the future and may probably correct any deficiencies leading to the dismissal the first time around.
The court may also dismiss the case on a “with prejudice” basis.
That’s when the claim is entirely dismissed on its merits.
As a result, the plaintiff’s right to file a complaint on the same facts, against the same party on the same object is extinguished.
Sua sponte dismissal
A court has the power to dismiss a case sua sponte, Latin for “of one’s own will”.
In some instances, the parties do not file an application for the dismissal of a motion but the court raises the issue of its own will.
For example, if the court believes that the action is filed outside of the statute of limitations, it can dismiss the case even though a party did not raise that as a ground for dismissal.
Affirmative defenses
Some legal actions are dismissed because even when the court assumes that all the allegations invoked by the plaintiff were to be true, the case does not have any chance of success.
In other words, the plaintiff’s case is defective to a point that it must be dismissed.
In other instances, the court may consider factors outside of the allegations raised by the plaintiff to determine if a case should be dismissed or not.
That’s what is typically referred to as an “affirmative defense”.
A very good example is a case to be dismissed based on the rule of the statute of limitations.
The court can dismiss the case on the basis of a legal consideration irrespective of the actual content of the plaintiff’s complaint but related to the timing of when the claim was formally filed.
How do you stop a motion to dismiss?
To stop or defend against a motion to dismiss, the plaintiff must be able to demonstrate that if all the allegations were held to be true, the court has jurisdiction to hear the case or that the service was done properly.
When a plaintiff files a complaint, he or she is committed to the content of the allegation, the exhibits and the claim.
In other words, the court will consider the content of the complaint, the allegations and exhibits filed to determine if a dismissal should be granted or not.
The most effective way to stop a motion to dismiss for succeeding is to demonstrate that if the facts alleged by the plaintiff were held to be true, there are no deficiencies or legal basis based on which the plaintiff can have the matter dismissed.
What happens after a motion to dismiss?
When a motion to dismiss is filed, the parties will have an opportunity to be heard by the court.
At the hearing, the defendant will present his or her arguments as to why the court should dismiss the plaintiff’s application.
The plaintiff will also have the opportunity to demonstrate why the defects invoked by the defendant cannot justify a dismissal of the application.
Once the parties are heard, then the court will render a decision on the motion to dismiss.
The court will either grant the motion to dismiss or reject it.
If the court grants the motion, the legal proceeding ends there.
If the court rejects the motion to dismiss, the legal proceedings take its normal course.
Rules of civil procedure
A motion to dismiss must be filed in accordance with the court’s civil rules of procedure.
The courts in every jurisdiction operate based on a set of rules governing the filing, presentation and hearing of motions to dismiss.
For example, in the United States federal courts, the Federal Rules of Civil Procedure (FRCP) provides the guidelines as to how a party must file and present a motion to dismiss.
Takeaways
A motion to dismiss is a formal request filed by one party in a lawsuit against another to have the court dismiss the other party’s application or petition.
Generally, the motion to dismiss is filed by the defendant shortly after receiving the service of a complaint.
The grounds invoked will depend on the applicable rules of civil procedure.
Often, we will see the following arguments raised against a motion to dismiss:
- The court not having subject-matter jurisdiction
- The court not having personal jurisdiction
- Insufficient service of process
- Improper venue
- Plaintiff’s failure to state a claim requiring remedy
- Statute of limitation expiration
- Lis pendens, meaning that another case is pending between the same parties for the same object before another court
- Res judicata, meaning that the case has already been decided between the parties
If the court dismisses the plaintiff’s motion, then the legal proceedings end there!
If not, the lawsuit will take its normal course.
