What is a “motion to dismiss”?

A motion to dismiss is a legal document that asks the court to “throw out” a case. The motion is usually filed by the defendant immediately after the plaintiff files a complaint. A defendant can file a motion to dismiss instead of filing an answer; if the defendant files a motion to dismiss, most courts assume the defendant denies the allegations in the complaint, even though the defendant hasn’t filed an answer that specifically denies the allegations in the complaint.

For the court to grant a motion to dismiss, the arguments raised in the motion to dismiss must be issues that the parties can argue about and that the court can address without needing any evidence that doesn’t already appear in the complaint and the motion itself. If more evidence is needed, the court will generally deny the motion to dismiss and ask the defendant to bring up the issues again in a motion for summary judgment after both parties have had a chance to investigate by conducting discovery.

Motions to dismiss usually concern procedural issues, like whether the case has been filed in the correct venue or whether the court has jurisdiction over the case. Other possible bases for a motion to dismiss include: (1) the complaint was not served correctly, or (2) the plaintiff did not include a party who must participate in the case in order to reach a fair result.

Often, a motion to dismiss is filed because the defendant believes that one or more affirmative defenses apply to the case, and a motion to dismiss is an appropriate way to get the court to consider those defenses. For example, a motion to dismiss is often filed when the defendant believes the plaintiff has failed to state a claim. A motion to dismiss for failure to state a claim (sometimes called a “12(b)(6) motion,” after the specific Federal Rule of Civil Procedure that allows these motions to be filed) basically states that, even if every fact listed in the plaintiff’s complaint is true, the case is not one a court has the power to deal with.

Suppose, for instance, that the complaint states that the defendant passed the plaintiff on the stairs at their workplace one morning, but the defendant didn’t say hello. Even if these facts are completely true, the court can do nothing to help the plaintiff because no law requires the defendant to say hello to the plaintiff, and no law creates a right for the plaintiff to receive damages, an injunction, or another legal remedy as a result of the defendant’s failure to say hello.

Another affirmative defense that is often raised in a motion to dismiss is the defense that the statute of limitations has passed. This defense claims that the plaintiff cannot sue the defendant because the time period for bringing the suit has passed. For instance, if the time limit set by law for bringing an negligence case is two years from the date the plaintiff was injured, and the plaintiff waits two years and 10 days to file the case, the defendant may win on a motion to dismiss because the statute of limitations has expired.

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