Motion to Dismiss

A request to end a case at the outset on the basis that, even if everything alleged is true, it does not amount to a legal claim.

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What it means

A motion to dismiss asks the court to throw out a case before any evidence is examined. Its defining feature is the assumption it makes: for the purposes of the motion, the court treats the facts alleged in the complaint as true. The argument is not "that did not happen" - it is "even if all of that happened, the law gives no remedy for it." A defendant who wants to dispute the facts is in the wrong procedural place and is usually looking for summary judgment instead, which comes later and looks at evidence.

The grounds fall into two families. The first attacks the claim itself: the complaint does not state a legally recognized claim, or it states one that is barred on its face. The second attacks the court rather than the claim - that this court has no authority over the subject matter or over this defendant, that the case is in the wrong location, or that the papers were never validly served. That second family matters because several of those objections are lost permanently if not raised at the first opportunity.

Dismissal comes in two flavors and the difference is the whole outcome. Dismissal without prejudice ends this version of the case and usually allows the claimant to fix the defect and refile. Dismissal with prejudice ends the claim for good. Courts commonly grant leave to amend on a first motion, so an early dismissal is frequently a redrafting instruction rather than a defeat - though a claimant who cannot cure the defect will meet a second motion that does end it.

Partial outcomes are normal. A court can dismiss some claims and let others proceed, which narrows a case rather than resolving it, and that narrowing is often the motion's real purpose.

Where this comes from

When people hire a lawyer for this

This is one of the least suitable stages for self-representation on either side, because it is argued almost entirely on law rather than facts and the standard differs sharply between federal and state court. If you have been served and believe the claim is legally baseless, the response is time-limited and drafting it is specialized work. If you are the claimant and your complaint has been dismissed with leave to amend, the opinion is effectively a list of what to fix, and the second attempt is usually the last one you get.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• AppealThe review of a trial court's decision by a higher court - what can be appealed and when (the final-judgment rule and its exceptions), the notice of appeal and why missing it is fatal, what "standard of review" means and why most appeals are lost on it, preserving error at trial, the record and briefs, and what an appellate court can and cannot do with the result.
• Attorney-Client Privilege and Work ProductThe two protections that keep what a client tells a lawyer, and what a lawyer prepares for a case, from being forced into evidence - what the privilege covers and what it does not, who holds it and how it is waived, the crime-fraud exception, the separate and narrower work-product doctrine, and how each is asserted in discovery.
• Burden of Proof (Standards of Proof)Who has to prove what, and how convincingly, before a court will rule for them - the difference between the burden of production and the burden of persuasion, the three standards (preponderance of the evidence, clear and convincing evidence, beyond a reasonable doubt) and where each applies, presumptions that shift the burden, and why the burden decides cases where the evidence is in balance.
• Complaint and Answer (Pleadings)The documents that start a civil case and frame what it is about - what a complaint must contain, how a defendant answers it, what an admission, denial and affirmative defense each do, counterclaims and cross-claims, and what happens when a pleading is late, deficient or needs to be amended.
• Contempt of CourtThe court's power to punish disobedience of its own orders - the mechanism that makes a court order more than a piece of paper.
• Court Fee Waiver (In Forma Pauperis)How a person who cannot afford court filing fees asks the court to excuse them - the federal and state procedures, who usually qualifies, and what a waiver does not cover.
• Default JudgmentA judgment entered because the person sued did not respond in time - the way most consumer debt lawsuits actually end.
• DepositionSworn, recorded, out-of-court questioning of a witness by the opposing lawyer, before any trial.
• DiscoveryThe pre-trial process in which each side must hand over relevant evidence to the other.
• Expert Witness (Daubert and Frye)A witness allowed to give opinions rather than only facts because of specialized knowledge - who qualifies, the gatekeeping test a judge applies to the reliability of the method (Daubert in federal court and most states, Frye in the rest), the written report and deposition that precede trial, the difference between a retained expert and a treating professional, and why a case can be lost when its expert is excluded.
• Fee Agreement and RetainerThe engagement letter that sets what a lawyer will do and how they are paid - hourly, flat or contingent fees, retainers held in trust, costs, and what to do about a fee dispute.
• Injunction and Temporary Restraining OrderThe court orders that require a party to do or stop doing something rather than pay money - the three stages (temporary restraining order, preliminary injunction, permanent injunction), the four-factor test for emergency relief, the bond the applicant must post, how an order is enforced through contempt, and why a violated order is obeyed first and challenged second.
• Jurisdiction and VenueThe three questions every lawsuit has to answer before its merits can be heard - whether the court has power over this kind of case (subject-matter jurisdiction), power over this defendant (personal jurisdiction), and whether this is the right place within the system to bring it (venue) - what each requires, how each is challenged, and why a judgment entered without jurisdiction is void.
• Limited-Scope Representation (Unbundled Legal Services)Hiring a lawyer for one defined part of a legal matter - advice, drafting a document, or a single hearing - instead of the whole case, and the written agreement that sets the boundary.
• Mediation and ArbitrationTwo ways of resolving a dispute outside a trial that are constantly confused - one produces an agreement you can walk away from, the other a decision you generally cannot appeal.
• Pro Bono Legal HelpFree legal work by volunteer lawyers - what the professional rules ask of lawyers, how people of limited means are matched with a volunteer, and why it is not the same as legal aid.
• Release and Settlement AgreementThe document that ends a claim by giving up the right to bring it - normally final, and normally broader than people expect.
• Representing Yourself (Pro Se)The right to conduct your own case without a lawyer - available in almost every civil court, and held to almost the same standards as a lawyer.
• Res Judicata and Collateral Estoppel (Preclusion)The rules that stop a dispute from being litigated twice - claim preclusion, which bars a second suit on a claim that was or could have been decided, and issue preclusion, which bars re-arguing a specific issue actually decided, the elements of each, who is bound, the exceptions, and why "could have been raised" is the part that surprises people.
• Service of ProcessThe formal delivery of court papers that gives a court power over the person sued - and the step whose failure undoes more judgments than any other.
• Small Claims CourtA simplified court for lower-value disputes, designed to be used without a lawyer - and in some states lawyers are not allowed in it at all.
• Statute of LimitationsA deadline, set by statute, after which a legal claim can no longer be brought at all.
• SubpoenaA court-backed order to give evidence or hand over documents - enforceable against people who are not parties to the case at all.
• Summary JudgmentA ruling that decides a case, or part of one, without a trial because the essential facts are not genuinely in dispute.

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