Demurrer

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The legal term demurrer refers to a written response to a civil lawsuit which asks the judge to dismiss the case as, even if the facts complained of by the Plaintiff in the lawsuit were true, there is no legal basis for a lawsuit. A demurrer requires that a hearing be held so that both sides to the dispute may present their rationale for the continuation or dismissal of the lawsuit, after which the judge will make a determination. To explore this concept, consider the following demurrer definition.

Definition of Demurrer

Noun

  1. A response in a civil lawsuit which, while not disputing the truth of the allegations made by the plaintiff, claims there are no grounds to justify a lawsuit, or a cause of action within the lawsuit.
  2. A legal pleading that admits an opposing party’s point, but denies that it is a relevant or valid argument.

Origin

1175-1225 Middle English demuren

What is a Demurrer

The word demur means “to object,” and in the U.S. legal system, a demurrer is a legal pleading that objects to a legal action filed by an opposing party, and asks the judge to dismiss it. In effect, a demurrer says to the judge, even if we do not dispute the facts as provided by the other party, there is no legal basis for this lawsuit. In most cases, a demurrer is filed by a defendant in a civil lawsuit, in response to the complaint filed by the plaintiff. In some cases, however, a plaintiff may file a demurrer in response to the defendant’s answer to the complaint.

If, in the complaint, the plaintiff fails to clearly state his claim, or fails to state all of the required elements of his claim, the defendant may challenge the adequacy of the complaint, or a specific cause of action. In such cases, a deficient cause of action, or perhaps even the entire complaint, may be thrown out as a result of a demurrer. It is common, however, for a demurrer to be sustained by a judge, with “leave to amend,” which gives the party who has filed an inadequate complaint or answer to re-write it, correcting the errors.

Demurrer vs. Motion to Dismiss

Federal courts in the U.S. abolished the use of demurrer when the Federal Rules of Civil Procedure (“FRCP”) went into effect in 1938. This occurred because attorneys came to feel that the demurrer, which requires an immediate hearing and decision, at a point in a case where nothing else triggered a hearing, was irrational. When a case is initiated, the petition (or “complaint”) outlines the issues of the case from the plaintiff’s point of view, and the response (or “answer”) provides the defendant’s view of the matter. Once both of these documents have been filed, the case is considered to be “at issue,” and proceeds through well established procedures.

Prior to the trial itself, either party may ask the judge to make a decision regarding urgent matters within the case by filing a motion. The federal court system decided that a written assault on the fabric of a complaint, which requires a response by the opposing party, a hearing, and a ruling by a judge, the same way a motion would, should be referred to, and treated as, a motion. As a result, Federal Rule 12(b)(6) replaced the demurrer with the motion to dismiss for failure to state a claim.

Demurrer in State Courts

Most state court systems have modeled their rules of civil procedure after the FRCP, replacing the demurrer with the motion to dismiss for failure to state a claim. Demurrers are still used in a minority of states, including California, where a demurrer must take the stance of assuming the truth of the facts stated in the complaint, while it challenges the complaint itself, or a cause of action within the complaint, as a matter of law.

If the court sustains a demurrer because of the form of the complaint, the plaintiff is given an opportunity to amend the complaint. Failing to allow such an amendment may be deemed an abuse of the court’s discretion. Generally, a sustained or granted demurrer cannot be appealed, unless it dismisses an entire action, and ends in a judgment.

Motion to Dismiss

The motion to dismiss, which has replaced the demurrer in the federal court system, as well as a majority of the state courts, proposes to the court that, even if all of the facts stated in the complaint were true, there is no legal issue for which the court might provide a remedy.

For example:

Margaret goes to her local grocery store to do her weekly shopping. She discovers, much to her dismay, that the store no longer carries her favorite brand of plastic wrap. Margaret has been using that brand of wrap for 50 years, and files a civil lawsuit against the store, requesting damages for pain and suffering.

The defendant files a response to Margaret’s complaint, then files a motion to dismiss for failure to state a claim. In its motion to dismiss, the store points out that, even if every fact stated in the plaintiff’s complaint were true, there is no legal basis for a civil lawsuit, as there is no law or regulation that requires the store to carry any specific products. Therefore, there is no basis for the court to offer a remedy. A hearing would be held on the motion, and it is likely that the case would be dismissed.

Related Legal Terms and Issues

  • Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Hearing – A proceeding before the court at which an issue of fact or law is heard, evidence presented, and a decision made.
  • Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
  • Pleading – The specific papers presented to the court describing allegations or denials, asking the court to grant some specific relief or decide a pertinent point. Pleadings are the written documents filed with the court in any lawsuit.