LawyerLandLegal Glossary

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.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

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 recognised 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 flavours 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

In federal court the motion is Federal Rule of Civil Procedure 12(b), with 12(b)(6) covering failure to state a claim, 12(b)(1) subject-matter jurisdiction, 12(b)(2) personal jurisdiction, 12(b)(3) venue and 12(b)(5) insufficient service; Rule 12(h) sets out which of those defences are waived if not raised at the first opportunity, and Rule 15 governs amendment. The pleading standard a complaint must meet in federal court comes from Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). State courts apply their own rules, and several apply a materially different and more permissive pleading standard. The time allowed to file or respond is set by those rules and this page states none.

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 specialised 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.

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.
If you cannot afford a lawyer, civil legal aid programmes provide free help with many of these problems: civil legal aid programmes by state.