Motion to Dismiss
File a Motion to Dismiss a lawsuit. Raise the right Rule 12(b) ground and meet your filing deadline.
Introduction
A Motion to Dismiss is a written request asking the court to throw out a lawsuit, or part of it, before the case ever reaches trial. Instead of answering the plaintiff's allegations one by one, the defendant argues that the case has a flaw serious enough that it should not move forward at all. The most common version argues that the complaint, even if everything in it were true, does not describe a legal wrong the court can do anything about. Others argue that the court has no authority over the defendant or the subject, that the lawsuit was filed in the wrong place, or that the defendant was never properly served. In federal court these grounds come from Rule 12(b) of the Federal Rules of Civil Procedure, and most states follow a closely related rule. Timing is what trips people up. A Rule 12(b) motion is filed in place of an answer, so it is due inside the same response window: 21 days after you are served in federal court, with state deadlines that vary, so you should check the summons you received and your local rule. If you miss that window, you can lose the right to raise some of these defenses, and the plaintiff can ask the court for a default judgment. A motion that is granted can end the case or force the plaintiff to fix and refile the complaint; a motion that is denied means you then file your answer and the case continues. DocDraft drafts a properly formatted motion to dismiss from your facts, with attorney review available before you file.
0/5000
Key Things to Know
- 1
A motion to dismiss asks the court to end the case before trial. Rather than answering each allegation, you argue the lawsuit has a defect serious enough that it should not proceed, such as the complaint failing to state a legal claim or the court lacking authority to hear it.
- 2
It is filed instead of an answer, on the same deadline. A Rule 12(b) motion takes the place of your answer and is due within the same response window: 21 days after service in federal court, with state deadlines that vary. Check your summons and local rule.
- 3
The federal grounds come from Rule 12(b). The seven defenses are lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficient process, insufficient service of process, failure to state a claim, and failure to join a required party. Most states follow a closely related rule.
- 4
Some defenses are lost if you do not raise them now. Under Rule 12(h), the defenses about personal jurisdiction, venue, process, and service are waived if you leave them out of your first motion or answer. Lack of subject-matter jurisdiction is the exception and can be raised at any time.
- 5
The most common ground is failure to state a claim. A Rule 12(b)(6) motion argues that even if every fact in the complaint were true, it still would not add up to a claim the law recognizes, so the court should dismiss it.
- 6
Winning the motion does not always end the lawsuit for good. A court can dismiss the complaint but give the plaintiff a chance to fix and refile it. A dismissal with prejudice ends it; a dismissal without prejudice lets the plaintiff try again.
- 7
If the motion is denied, you still have to answer. When the court denies a motion to dismiss, the case continues and your deadline to file an answer restarts under the rules, so the motion is a step in the case, not the last word.
Key Decisions
Choosing the Grounds for Dismissal
Federal Rule 12(b) lists the grounds for a motion to dismiss. Failure to state a claim is the most common, but you can raise jurisdiction, venue, or service defects too. Pick the ground that actually fits your facts.
Failure to state a claim (Rule 12(b)(6))
The most common ground. You argue that even if the complaint's facts are true, they do not amount to a legal claim.
Most Common OptionLack of jurisdiction over you or the subject (Rule 12(b)(1)-(2))
You argue the court has no authority over you or over this type of case.
Improper venue or defective service (Rule 12(b)(3)-(5))
You argue the case is in the wrong court or that you were not properly served.
Identify every ground that fits your facts
Recommended when more than one applies. Several Rule 12(b) defenses are waived if you leave them out of this motion.
Under Rule 12(h), the defenses about personal jurisdiction, venue, process, and service are permanently waived if they are not raised in your first motion or answer. Subject-matter jurisdiction is the exception.
Raise every available waivable defense now
Recommended. Personal jurisdiction, venue, process, and service defenses are lost if omitted from this motion.
Most Common OptionI am only raising failure to state a claim
Common. This ground is not waived the same way and can be raised later, but confirm no waivable defense applies.
Timing and Strategy
A Rule 12(b) motion is filed instead of an answer. You generally file one or the other first. If you have a clear Rule 12(b) ground, the motion can end the case or part of it before you have to answer.
File a motion to dismiss
Use when you have a valid Rule 12(b) ground. It is filed in place of an answer and can end the case early.
Most Common OptionFile an answer instead
Use when no Rule 12(b) ground fits. You respond to each allegation and raise your defenses in the answer.
The motion is due in the same window as an answer: 21 days after service in federal court, with state deadlines that vary. A missed deadline can waive defenses and lead to a default judgment.
Confirm the deadline on the summons and file on time
The safe choice. Read the response deadline on your summons and your local rule before you file.
Most Common OptionRequest more time before the deadline
Available in many courts if you ask before the deadline passes or the plaintiff agrees.
Filing and Serving the Motion
After filing, you must serve a copy of the motion on the plaintiff or their attorney and record how and when you served it in a certificate of service.
Mail a copy to the plaintiff or their attorney
The most common method. You then file a certificate of service with the court.
Most Common OptionElectronic service through the court system
Available in courts that use electronic filing.
Hand delivery
Permitted in some courts. Confirm your local rules.
Motion to Dismiss Requirements
Court Name and District
The full name of the court and judicial district where the lawsuit was filed, exactly as it appears on the summons.
Party Names
The plaintiff's and defendant's full legal names as listed in the complaint, with you named as the defendant.
Case Number
The case or docket number assigned by the court, found on the summons and the complaint.