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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 pled within the complaint, which is a formal document filed at the beginning of a civil lawsuit. A complaint is considered a pleading. A pleading is a formal document that starts or defends a lawsuit. The defendant’s answer, in which the defendant admits or denies the allegations in the plaintiff's complaint, 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 be argued only at the beginning of the case before the defendant's answer to the complaint or any other motion. However, a Motion to Dismiss may sometimes be filed 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 why the defendant believes the court should grant the motion. 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:

You are generally not allowed to argue about whether a fact pled in the Complaint is true or false in a Motion to Dismiss.

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

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 be raised in a Motion to Dismiss include:

Below are some of the more common reasons argued 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 personal jurisdiction

A Motion to Dismiss for lack of personal jurisdiction challenges where the case is filed. If the plaintiff files the case in a state where the defendant has never lived and that has no connection to the events or circumstances at issue in the case, 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. Without the defendant's agreement to litigate the case in Illinois, the plaintiff can’t file the case in Illinois because the court doesn’t have personal jurisdiction over the defendant. If a defendant does not challenge personal jurisdiction in a Motion to Dismiss before the Answer is filed, the defendant most likely will not be able to get the case dismissed for personal jurisdiction reasons at a later time.

Failure to state a claim

A Motion to Dismiss for failure to state a claim argues that even if all the facts in the complaint are true, the plaintiff still has not stated an actionable claim, 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 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 must 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.

Passing of statute of limitations

A statute of limitations sets a period in which the plaintiff must file a lawsuit or else lose the right to do so. The period depends on the type of case. For many common causes of action, like breach of contract or negligence, the statute of limitation is determined by state law. If the statute of limitations has expired, the plaintiff can no longer 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.