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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.

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Key Things to Know

  1. 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. 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. 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. 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. 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. 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. 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

Timing and Strategy

Filing and Serving the Motion

Customize your Motion to Dismiss Template with DocDraft

[COURT NAME AND JUDICIAL DISTRICT]

[PLAINTIFF NAME], Plaintiff, v. Case No. [CASE NUMBER] [DEFENDANT NAME], Defendant.

DEFENDANT'S MOTION TO DISMISS

NOTICE OF MOTION PLEASE TAKE NOTICE that on [HEARING DATE], or as soon thereafter as the matter may be heard, Defendant [DEFENDANT NAME] will move this Court, at [COURT ADDRESS], for an order dismissing the Complaint of Plaintiff [PLAINTIFF NAME] under Rule 12(b) of the [Federal Rules of Civil Procedure / applicable state rule].

MOTION Defendant [DEFENDANT NAME] respectfully moves the Court to dismiss the Complaint, in whole or in part, on the following ground(s): [ ] Lack of subject-matter jurisdiction (Rule 12(b)(1)). [ ] Lack of personal jurisdiction (Rule 12(b)(2)). [ ] Improper venue (Rule 12(b)(3)). [ ] Insufficient process or insufficient service of process (Rule 12(b)(4)-(5)). [ ] Failure to state a claim upon which relief can be granted (Rule 12(b)(6)). [ ] Failure to join a required party (Rule 12(b)(7)). [State each ground you are raising and check only those that apply.]

MEMORANDUM OF POINTS AND AUTHORITIES

I. STATEMENT OF FACTS [Briefly summarize the facts the Court needs to decide this motion, drawn from the Complaint and the record.]

II. LEGAL ARGUMENT [For each ground, state the rule and explain why it requires dismissal. For a Rule 12(b)(6) motion, explain that even if the allegations are taken as true, the Complaint does not state a claim on which relief can be granted. Cite the rule and any controlling authority you rely on.]

III. RELIEF REQUESTED For these reasons, Defendant respectfully requests that the Court dismiss the Complaint [with / without] prejudice, and grant any further relief the Court deems just.

Dated: [DATE] [SIGNATURE] [DEFENDANT NAME], Defendant [Pro Se] [ADDRESS / PHONE / EMAIL]

[PROPOSED] ORDER This matter came before the Court on Defendant's Motion to Dismiss. Having considered the motion, the Court orders that the motion is GRANTED and the Complaint is dismissed [with / without] prejudice. Dated: [DATE] ______________________________ Judge

CERTIFICATE OF SERVICE I certify that on [DATE] I served a copy of this Motion to Dismiss on [PLAINTIFF / PLAINTIFF'S ATTORNEY] at [ADDRESS] by [mail / electronic service / hand delivery]. [SIGNATURE]

Frequently Asked Questions

A motion to dismiss is a request asking the court to throw out a lawsuit, or specific claims in it, before trial. Instead of answering the allegations, you argue the case has a defect that should stop it, such as the complaint not stating a valid legal claim, the court lacking authority, improper venue, or defective service. In federal court these grounds are listed in Rule 12(b), and most states have a closely related rule.

A Rule 12(b) motion is filed in place of an answer, so it is due in the same response window. In federal court that is 21 days after you are served with the summons and complaint, or 60 days if you waived service or you are a United States defendant. State deadlines vary, so check the summons you were served and your local court rule. Missing the window can cost you the right to raise some defenses and expose you to a default judgment.

Federal Rule 12(b) lists seven: lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficient process, insufficient service of process, failure to state a claim upon which relief can be granted, and failure to join a required party under Rule 19. The most common is failure to state a claim under Rule 12(b)(6). Most state courts follow a closely related list.

A 12(b)(6) motion argues failure to state a claim. It tells the court that even if every fact in the complaint were assumed true, those facts still would not amount to a legal claim the court can grant relief on. If the court agrees, it dismisses the claim, sometimes with permission for the plaintiff to amend and refile.

Yes. You have the right to represent yourself, and self-represented defendants do file motions to dismiss. The motion has to identify a valid ground, follow your court's format, be supported by a memorandum of legal argument, and be filed and served on time. DocDraft drafts a properly formatted motion from your facts, and attorney review is available before you file.

If it is granted, the court dismisses the complaint or the targeted claims. A dismissal without prejudice lets the plaintiff fix and refile; a dismissal with prejudice ends those claims for good. If it is denied, the case continues and you then file your answer within the time the rules allow after the court rules.

You generally file one or the other first, not both. A motion to dismiss is filed instead of an answer and pauses your answer deadline while the court considers it. If the motion is denied, or granted only in part, you then file an answer to whatever remains. If you have no Rule 12(b) ground, you file an answer.

A complete motion has the case caption, a notice of motion, a clear statement of the Rule 12(b) ground or grounds you are raising, and a supporting memorandum of points and authorities that lays out the facts and the legal argument. Most courts also expect a proposed order for the judge to sign and a certificate of service showing you sent a copy to the plaintiff.