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Virginia Motion to Dismiss

In Virginia you challenge a complaint by demurrer under Va. Code 8.01-273 within 21 days of service.

Introduction

In Virginia you do not file a "motion to dismiss for failure to state a claim." The vehicle for challenging a complaint's legal sufficiency is the demurrer under Va. Code section 8.01-273. A demurrer asserts that the pleading does not state a cause of action or fails to state facts upon which the relief demanded can be granted. It admits the truth of all facts properly pleaded and tests only their legal sufficiency. The statute requires every demurrer to be in writing and to state specifically the grounds on which the pleading is insufficient at law, and the court will consider no grounds other than those stated. Under Va. Sup. Ct. R. 3:8 a demurrer is a permitted responsive pleading, so you file it within the same 21-day window as an answer: within 21 calendar days after service of the summons and complaint, in lieu of an answer. If the court overrules the demurrer, Rule 3:8(b) requires you to file an answer within 21 days after entry of that order. Virginia also recognizes the plea in bar, raising a single dispositive issue such as the statute of limitations or res judicata, and the motion craving oyer, compelling production of a document the complaint relies on. You file in the Circuit Court named in the summons, and missing the 21-day window risks a default. DocDraft drafts a Virginia-formatted demurrer from your facts, with attorney review available before you file.

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Key Things to Know

  1. 1

    Virginia's pre-answer challenge to a complaint's legal sufficiency is a demurrer under Va. Code section 8.01-273, not a federal-style motion to dismiss. The statute provides that the contention that a pleading does not state a cause of action, or fails to state facts upon which the relief demanded can be granted, may be made by demurrer.

  2. 2

    A demurrer tests legal sufficiency only: it admits the truth of all facts properly pleaded and reasonable inferences, and argues those facts state no cause of action. Va. Sup. Ct. R. 3:8 lists related but distinct pre-answer responsive pleadings, including the plea or plea in bar, the motion craving oyer, the motion to dismiss, and the motion for a bill of particulars.

  3. 3

    A demurrer is a responsive pleading filed within the same 21-day window as an answer: a defendant must file pleadings in response within 21 calendar days after service of the summons and complaint, under Va. Sup. Ct. R. 3:8. Filing a demurrer satisfies that responsive-pleading obligation in lieu of an answer.

  4. 4

    If the court overrules the demurrer, Rule 3:8(b) requires the defendant to file an answer within 21 days after entry of the order overruling it. The case then proceeds on the schedule the court sets.

  5. 5

    Va. Code section 8.01-273 requires every demurrer to be in writing and to state specifically the grounds on which the pleading is claimed to be insufficient at law. The court will consider no grounds other than those stated specifically in the demurrer, so unstated grounds are waived for that ruling.

  6. 6

    The most common ground is that the pleading does not state a cause of action, or fails to state facts upon which the relief demanded can be granted, which is the core of Va. Code section 8.01-273. A demurrer may be amended as other pleadings are amended.

  7. 7

    You file the demurrer in the Circuit Court, Virginia's trial court of general jurisdiction, with the clerk of the court named in the summons. Virginia separately recognizes the plea in bar for a single dispositive factual issue, and the motion craving oyer to compel production of a document the complaint relies on, as distinct responsive pleadings under Rule 3:8.

Key Decisions

Choosing the Grounds for Dismissal

Timing and Strategy

Filing and Serving the Motion

Customize your Motion to Dismiss Template with DocDraft

VIRGINIA: IN THE CIRCUIT COURT OF [CITY/COUNTY]

[PLAINTIFF NAME], Plaintiff,

 v.

[DEFENDANT NAME], Defendant.

Case No.: [CASE NUMBER]

DEMURRER

[Va. Code § 8.01-273; Va. Sup. Ct. R. 3:8]

Defendant [DEFENDANT NAME], by counsel or appearing pro se, demurs to the Complaint filed by Plaintiff [PLAINTIFF NAME] pursuant to Va. Code § 8.01-273 and Va. Sup. Ct. R. 3:8, and states as follows.

This demurrer is in writing and states specifically the grounds on which the Defendant concludes that the Complaint is insufficient at law, as Va. Code § 8.01-273 requires. The court is asked to consider only the grounds stated below.

GROUNDS OF DEMURRER

  1. The Complaint does not state a cause of action against the Defendant. (Va. Code § 8.01-273.)

  2. The Complaint fails to state facts upon which the relief demanded can be granted. (Va. Code § 8.01-273.)

[State each additional ground specifically. The court will consider no grounds other than those stated specifically in this demurrer.]

MEMORANDUM IN SUPPORT

I. NATURE OF THE DEMURRER A demurrer tests the legal sufficiency of the Complaint. It admits the truth of all facts properly pleaded, and all reasonable inferences from those facts, and argues only that those facts state no cause of action and fail to state facts upon which the relief demanded can be granted.

II. STATEMENT OF THE ALLEGATIONS [Summarize the allegations of the Complaint as relevant to the grounds raised.]

III. ARGUMENT [State the legal basis for each ground. Explain why, taking the well-pleaded facts as true, the Complaint states no cause of action.]

IV. CONCLUSION For the foregoing reasons, the Defendant respectfully requests that the Court sustain this demurrer.

WHEREFORE, the Defendant respectfully requests that the Court:

  1. Sustain the demurrer to the Complaint;
  2. Grant such other and further relief as the Court deems just and proper.

If the demurrer is overruled, the Defendant will file an answer within 21 days after entry of that order, as Va. Sup. Ct. R. 3:8(b) provides.

Dated: [DATE]

[ATTORNEY OR SELF-REPRESENTED PARTY NAME] [Virginia State Bar No., if applicable] [Address] [Telephone] Counsel for Defendant / Defendant pro se

CERTIFICATE OF SERVICE

I certify that on [DATE] a true copy of the foregoing Demurrer was served on Plaintiff or Plaintiff's counsel by [method of service] in accordance with the Rules of the Supreme Court of Virginia.

[NAME OF PERSON SERVING]

[Caption and pleading format follow Va. Sup. Ct. R. 1:4. Local circuit courts commonly set their own rules on supporting memoranda, page limits, and proposed orders; check your court's local rules.]

Virginia Requirements for Motion to Dismiss

File the demurrer within 21 days of service

A demurrer is a responsive pleading filed within 21 calendar days after service of the summons and complaint, under Va. Sup. Ct. R. 3:8. Filing the demurrer in that window satisfies the responsive-pleading obligation in lieu of an answer.

File an answer within 21 days if the demurrer is overruled

Under Va. Sup. Ct. R. 3:8(b), if all demurrers, pleas, and motions are overruled, the defendant must file an answer within 21 days after entry of the order overruling them.

Assert the legal-sufficiency grounds under Va. Code 8.01-273

A demurrer asserts that the pleading does not state a cause of action, or fails to state facts upon which the relief demanded can be granted, under Va. Code section 8.01-273. The demurrer admits the truth of facts properly pleaded and tests only their legal sufficiency.

State the grounds in writing with specificity

Va. Code section 8.01-273 requires every demurrer to be in writing and to state specifically the grounds on which the pleading is claimed to be insufficient at law. The court will consider no grounds other than those stated specifically in the demurrer.

Follow the Virginia pleading-format rule

Caption and pleading format follow Va. Sup. Ct. R. 1:4. No statewide supporting-memorandum requirement or page limit appears in Va. Code section 8.01-273 or Rule 3:8; briefing of demurrers is commonly set by local circuit court rules, so check your court's local rules.

Confirm any proposed-order requirement with the circuit

No statewide rule requiring a proposed order to accompany a demurrer appears in Va. Code section 8.01-273 or Rule 3:8. Proposed-order practice is typically governed by local circuit court rules and varies by jurisdiction, so confirm against your specific circuit's local rules.

File in the Circuit Court named in the summons

File the demurrer in the Circuit Court, Virginia's trial court of general jurisdiction, where the action is pending, with the clerk of the court named in the summons. Part Three of the Rules of the Supreme Court of Virginia governs civil practice in the Circuit Courts.

Serve the demurrer and complete a certificate of service

Serve the demurrer on the plaintiff or plaintiff's counsel and complete a certificate of service. Virginia separately recognizes the plea in bar for a single dispositive issue and the motion craving oyer to compel production of a document the complaint relies on as distinct responsive pleadings under Rule 3:8.

Frequently Asked Questions

In Virginia the pre-answer challenge to a complaint's legal sufficiency is a demurrer under Va. Code section 8.01-273, not a motion to dismiss. You file a written demurrer that states specifically the grounds on which the pleading is insufficient at law, with the clerk of the Circuit Court named in the summons, within 21 days of service and in lieu of an answer.

A demurrer is a responsive pleading filed within the same 21-day window as an answer. Under Va. Sup. Ct. R. 3:8, a defendant must file pleadings in response within 21 calendar days after service of the summons and complaint. Filing the demurrer in that window satisfies the responsive-pleading obligation in lieu of an answer.

Under Va. Code section 8.01-273 a demurrer asserts that the pleading does not state a cause of action, or fails to state facts upon which the relief demanded can be granted. The demurrer admits the truth of all facts properly pleaded and tests only their legal sufficiency. It must be in writing and state specifically the grounds claimed to make the pleading insufficient at law.

No statewide meet-and-confer requirement applies before filing a demurrer in Virginia. Va. Sup. Ct. R. 3:8 imposes no pre-filing conferral obligation. It conditions only second-round responsive pleadings, filed after an initial response, on leave of court for good cause shown. Briefing practice is commonly set by local circuit court rules, so check your court's local rules.

If the court overrules the demurrer, Va. Sup. Ct. R. 3:8(b) requires the defendant to file an answer within 21 days after entry of the order overruling it. The case then proceeds on the merits. Under Va. Code section 8.01-273, a demurrer may also be amended as other pleadings are amended.

You file the demurrer in the Circuit Court, Virginia's trial court of general jurisdiction, where the action is pending, with the clerk of the court named in the summons. Part Three of the Rules of the Supreme Court of Virginia governs practice and procedure in civil actions in the Circuit Courts.