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Louisiana Motion to Dismiss

In Louisiana you raise the peremptory exception of no cause of action under La. C.C.P. art. 927.

Introduction

Louisiana is the only civil-law state, with no "motion to dismiss" and no "demurrer." The vehicle for challenging a petition's legal sufficiency is the peremptory exception, and the objection that maps to the federal "failure to state a claim" is no cause of action under La. C.C.P. art. 927. The civil-law signature is the pairing of two distinct objections in art. 927: no cause of action tests whether the petition states a legally cognizable claim on its face with no evidence admitted, while no right of action tests whether this particular plaintiff has a real and actual interest to sue. The timing is broader than any pre-answer window. Under art. 928(B), the peremptory exception may be pleaded at any stage in the trial court before the case is submitted for a decision, so it is not lost by answering. The answer is a separate clock, generally 21 calendar days after service of citation under art. 1001(A). Two state mechanics govern filing: every exception needs a proposed order setting it for hearing under District Court Rule 9.8(a), and a supporting memorandum must reach the parties at least 15 calendar days before the hearing under Rule 9.9(b). It is filed in the District Court for the parish. DocDraft drafts a Louisiana-formatted peremptory exception from your facts, with attorney review available before you file.

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Key Things to Know

  1. 1

    Louisiana does not use a motion to dismiss or a demurrer. As the only civil-law state, its pre-answer challenge to a petition is the peremptory exception, and the objection of no cause of action is governed by La. C.C.P. art. 927.

  2. 2

    Article 927 lists the objections the peremptory exception may raise: (1) prescription, (2) peremption, (3) res judicata, (4) nonjoinder of a party under Articles 641 and 642, (5) no cause of action, (6) no right of action or no interest in the plaintiff to institute the suit, (7) discharge in bankruptcy, and (8) the court's lack of jurisdiction over the subject matter. The peremptory exception is distinct from the declinatory exception (jurisdiction, venue, process) under art. 925 and the dilatory exception (vagueness and procedural defects) under art. 926.

  3. 3

    The peremptory exception has its own timing, separate from the answer deadline. Under La. C.C.P. art. 928(B), it may be pleaded at any stage of the proceeding in the trial court before the case is submitted for a decision. The answer is generally due 21 calendar days after service of citation under art. 1001(A).

  4. 4

    Because art. 928(B) allows the peremptory exception at any stage before submission, answering does not waive it, and the court may notice the objection of no cause of action on its own motion. The declinatory and dilatory exceptions, by contrast, must be pleaded before or in the answer under art. 928(A).

  5. 5

    There is no statewide pre-filing meet-and-confer requirement for the peremptory exception, and no Louisiana analog to California's CCP 430.41. A supporting memorandum is required under District Court Rule 9.9(b) and must reach the other parties at least 15 calendar days before the hearing. Check your judicial district's local rules, which may add conference or page-limit requirements.

  6. 6

    The "failure to state a claim" analog is the objection of no cause of action under art. 927(5), which tests whether the petition states a legally cognizable claim on its face with no evidence admitted. It is distinct from no right of action under art. 927(6), which tests whether this particular plaintiff has a real and actual interest to sue and permits evidence.

  7. 7

    The peremptory exception is filed in the District Court for the parish where the action is pending, with the clerk of that district court. Every exception must be accompanied by a proposed order requesting that it be set for hearing under District Court Rule 9.8(a), and the court may strike an exception filed without one. Louisiana organizes its trial courts by parish, not county.

Key decisions before you file

Before you file a Motion to Dismiss in Louisiana, a few decisions shape the document: which option to choose and what each one means. The Motion to Dismiss guide walks through them.

Open the Motion to Dismiss guide

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____ JUDICIAL DISTRICT COURT PARISH OF ______________ STATE OF LOUISIANA

____________________________, Plaintiff,

  versus                                NO. ____________________
                                        DIVISION "____"

____________________________, Defendant.

PEREMPTORY EXCEPTION OF NO CAUSE OF ACTION

NOW INTO COURT, through undersigned counsel, comes Defendant, ____________________, who respectfully files this Peremptory Exception raising the objection of No Cause of Action pursuant to La. C.C.P. art. 927, and in support states:

  1. This Peremptory Exception is authorized by La. C.C.P. art. 927, which provides that the objection of no cause of action may be raised by the peremptory exception.

  2. Under La. C.C.P. art. 928(B), the peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision.

  3. The objection of no cause of action tests the legal sufficiency of the Petition on its face, accepting the well-pleaded facts as true and admitting no evidence. The Petition fails to state a cause of action because ____________________________.

[SELECT AND PLEAD ALL APPLICABLE ADDITIONAL OBJECTIONS UNDER La. C.C.P. art. 927:] ( ) Prescription (art. 927(1)). ( ) Peremption (art. 927(2)). ( ) Res judicata (art. 927(3)). ( ) Nonjoinder of a party under Articles 641 and 642 (art. 927(4)). ( ) No right of action, or no interest in the plaintiff to institute the suit (art. 927(6)). ( ) Discharge in bankruptcy (art. 927(7)). ( ) Lack of jurisdiction over the subject matter of the action (art. 927(8)).

WHEREFORE, Defendant respectfully prays that this Peremptory Exception of No Cause of Action be maintained and that Plaintiff's Petition be dismissed, and for all other relief the Court deems just and equitable.

MEMORANDUM IN SUPPORT OF PEREMPTORY EXCEPTION OF NO CAUSE OF ACTION [Required under District Court Rule 9.9(b). Cite the relevant facts and applicable law, and set forth the standard for the objection of no cause of action. The memorandum must be served on all other parties so that it is received at least fifteen calendar days before the hearing, unless the court sets a shorter time (Rule 9.9(b)). The hearing may not be scheduled until at least fifteen calendar days after filing (Rule 9.8(c)).]

Respectfully submitted,

[Name] [Address] [Telephone] [Counsel for Defendant, if represented / Defendant, in proper person]

Date: ________________

PROPOSED ORDER [Required under District Court Rule 9.8(a). Every exception must be accompanied by a proposed order requesting that the exception be set for hearing; if the exceptor fails to attach one, the court may strike the exception.]

CONSIDERING the foregoing Peremptory Exception of No Cause of Action:

IT IS ORDERED that the Peremptory Exception be set for hearing on the ____ day of _________, 20, at ____ o'clock __.m.

______________, Louisiana, this ____ day of _________, 20.

JUDGE, ____ Judicial District Court

CERTIFICATE OF SERVICE

I certify that on the ____ day of _________, 20, a copy of the foregoing Peremptory Exception of No Cause of Action, supporting memorandum, and proposed order was served upon all parties of record in the manner provided by law.

[Name]

Louisiana Requirements for Motion to Dismiss

The peremptory exception may be filed at any stage before submission

Under La. C.C.P. art. 928(B), the peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision. It need not be filed before the answer and is not lost by answering.

The answer deadline is a separate 21-day clock

The answer is a separate deadline from the peremptory exception. Under La. C.C.P. art. 1001(A), the answer is generally due 21 calendar days after service of citation in a general civil district-court case. The eviction and small-claims tracks use a shorter window under art. 4903.

Use the peremptory exception, not a motion to dismiss

As the only civil-law state, Louisiana has no motion to dismiss and no demurrer. The pre-answer challenge to a petition's legal sufficiency is the peremptory exception raising the objection of no cause of action under La. C.C.P. art. 927.

Select objections from those listed in art. 927

Article 927 lists the objections raised by the peremptory exception: prescription (1), peremption (2), res judicata (3), nonjoinder of a party under Articles 641 and 642 (4), no cause of action (5), no right of action or no interest in the plaintiff to institute the suit (6), discharge in bankruptcy (7), and lack of subject-matter jurisdiction (8).

Raise no cause of action for legal insufficiency

The federal "failure to state a claim" analog is the objection of no cause of action under art. 927(5), which tests whether the petition states a legally cognizable claim on its face with no evidence admitted. It is distinct from no right of action under art. 927(6), which tests whether this plaintiff has a real and actual interest to sue and permits evidence.

Furnish a supporting memorandum at least 15 days before the hearing

Under District Court Rule 9.9(b), a party filing an exception must concurrently furnish the trial judge and serve on all parties a supporting memorandum citing the relevant facts and applicable law, received at least 15 calendar days before the hearing. An opposing memorandum is due at least 8 calendar days before under Rule 9.9(c). The hearing cannot be set until at least 15 calendar days after filing under Rule 9.8(c). No statewide page limit is set; check your district's local rules.

Attach a proposed order setting the exception for hearing

Under District Court Rule 9.8(a), every exception, including one incorporated into an answer, must be accompanied by a proposed order requesting that it be set for hearing. If the exceptor fails to attach one, the court may strike the exception, set the matter on its own motion, or take other action. This is a hard filing requirement, not optional.

File in the District Court for the parish and serve all parties

The peremptory exception is filed in the District Court for the parish where the action is pending, with the clerk of that district court, since art. 928(B) names the trial court as the forum. Louisiana organizes its trial courts by parish, not county. City Courts and Parish or Justice of the Peace Courts may entertain exceptions in matters within their limits. Serve all parties of record.

Frequently Asked Questions

Louisiana does not use a motion to dismiss. You file a peremptory exception raising the objection of no cause of action under La. C.C.P. art. 927. Attach a proposed order setting it for hearing under District Court Rule 9.8(a), furnish a supporting memorandum under Rule 9.9(b), and file it with the clerk of the District Court for the parish where the suit is pending.

The peremptory exception has no fixed pre-answer deadline. Under La. C.C.P. art. 928(B), it may be pleaded at any stage of the proceeding in the trial court before the case is submitted for a decision, so it is not lost by answering. The answer itself is generally due 21 calendar days after service of citation under art. 1001(A), a separate clock from the exception.

Article 927 lists the objections raised by the peremptory exception: prescription, peremption, res judicata, nonjoinder of a party under Articles 641 and 642, no cause of action, no right of action, discharge in bankruptcy, and lack of subject-matter jurisdiction. No cause of action tests the legal sufficiency of the petition on its face with no evidence, while no right of action tests whether the plaintiff has a real and actual interest to sue.

No statewide rule requires a pre-filing meet-and-confer for the peremptory exception, and Louisiana has no analog to California's CCP 430.41. District Court Rule 9.8(f) requires contacting all affected parties only to certify a motion as unopposed, not before a contested exception. A supporting memorandum is required under Rule 9.9(b). Check your judicial district's local rules, which may add a conference requirement.

If the peremptory exception of no cause of action is overruled, the case proceeds. Because La. C.C.P. art. 928(B) allows the peremptory exception at any stage before the case is submitted for a decision, it is not waived by answering, and the objection of no cause of action may even be noticed by the court on its own motion later in the proceeding. Any time to answer is set by the court.

The peremptory exception is filed in the District Court for the parish where the action is pending, with the clerk of that district court, since art. 928(B) names the trial court as the forum. Louisiana organizes its trial courts by parish, not county. City Courts and Parish or Justice of the Peace Courts may entertain exceptions in matters within their limits.