A motion is a request for a judge to do something. A Motion to Dismiss asks the judge to dismiss the plaintiff’s case. 

The plaintiff’s case is within the complaint, which is considered a pleading.  A pleading is a formal document that starts or defends a lawsuit.  The defendant’s answer is also considered a pleading.

A Motion to Dismiss is often filed by the defendant right after the plaintiff serves the defendant with the complaint.  Many of the reasons for dismissing a case may only be argued at the beginning of the case before the defendant answers the complaint or files any other motion.  However, a motion to dismiss sometimes may be filed for some reasons at other times during the case, such as if the plaintiff amends the complaint to add a new claim. If a Motion to Dismiss is granted on all claims, the case is ended, and the defendant wins. 

A case can be dismissed with prejudice or without prejudice. When a case is dismissed with prejudice, it means the plaintiff cannot file the same case against the same defendant again.

When a case is dismissed without prejudice, the plaintiff is allowed to start over and file the lawsuit again.

Reasons to file a Motion to Dismiss

When a Motion to Dismiss is filed, the defendant must include information that explains their request. If the defendant’s reasons are not listed in the pleadings, the defendant must attach an affidavit.

There are two different ways that a Motion to Dismiss can attack the plaintiff’s case and lead to the case being dismissed:

• Even if everything in the complaint is true, the plaintiff should lose the case which means the pleading is defective from the start, or
• Something outside of the complaint prevents the plaintiff from winning and requires the case be dismissed which is known as “affirmative defenses.”

Some reasons that a Motion to Dismiss can be filed include:

• The pleading does not have all of the required parts. For example, the plaintiff did not attach a copy of the contract to the complaint;
• The complaint needs more detail;
• The complaint contains irrelevant information that should be taken out;
• Necessary parties should be added; or
• Unnecessary parties should be dismissed.

Usually, if a judge grants a Motion to Dismiss because of one of these types of defects in the complaint, the case will be dismissed without prejudice. This means the plaintiff can amend the complaint and bring the lawsuit a second time. This also gives the defendant some extra time to prepare to defend against the case in other ways.

Other defects and defenses that can cause a Motion to Dismiss  include:

• Lack of jurisdiction
• Lack of legal capacity of plaintiff or defendant
• Another case is pending between the same parties for the same thing
• This case was already decided between the parties
• Statute of limitations
• Discharge in bankruptcy
• Satisfied or released judgment
• The defendant is a minor, or under disability

Below are some of the most likely reasons used by a defendant in a Motion to Dismiss.

Lack of subject matter jurisdiction
If the plaintiff files the case in the wrong court, then the court doesn’t have the authority to handle the lawsuit. For example, a lawsuit asking for enforcement of a child support order cannot be filed in a bankruptcy court.

Lack of [no-lexicon]personal jurisdiction[/no-lexicon]
If the plaintiff files the case in a state where the defendant has never lived, the court might not have authority over that person. For example, a plaintiff lives in Illinois, and a defendant lives in California. They get in a car accident in Texas. The plaintiff can’t file the case in Illinois because the court doesn’t have personal jurisdiction over the defendant.

Failure to state a claim
If the plaintiff’s complaint does not clearly say something that the defendant did that is actionable/ the court can’t give the plaintiff a judgment, so the case doesn’t need to be heard. 

For example, Joe files a lawsuit claiming that Bob didn’t say hello at work. Bob can file a Motion to Dismiss the case because failing to say hello is not illegal.

In the complaint, the plaintiff must also allege all of the elements of the claim.  Failure to allege all elements of the claim is a reason for a Motion to Dismiss.  For example, in a car accident, the plaintiff may claim that the defendant was negligent.  The plaintiff would need to allege all elements of a negligence claim, including that the defendant had a duty to the plaintiff, which the defendant breached that duty, which the defendant’s breach of duty caused the plaintiff harm and damages. If the plaintiff’s complaint does not allege any damage, then the plaintiff has not alleged all elements of the claim, and the defendant may move to dismiss because the complaint fails to state a claim.

Bad service of process

The plaintiff has to make sure that a copy of the summons and the complaint are given to the defendant. This is called service of process. If the plaintiff does not serve the defendant in the right way, the defendant can file a Motion to Dismiss based on insufficient service of process.

Learn more about Serving a summons and Motion to Quash.

Passing of statute of limitations 

A statute of limitations sets a period in which the plaintiff has to file a lawsuit. The period depends on the type of case. If the statute of limitations has expired, the plaintiff cannot sue the defendant.

For example, say a plaintiff was injured 5 years ago. The plaintiff files a negligence case against the defendant 5 years after the defendant injured the plaintiff. The statute of limitations requires a plaintiff to bring a negligence case within 2 years of the injury. The defendant can file a Motion to Dismiss and ask the court to throw out the entire case. The defendant’s motion would be granted because the plaintiff failed to file the lawsuit within the 2-year statute of limitations.

How to file a Motion to Dismiss

Learn more about Preparing, filing, and presenting motions in court.