Motion to Dismiss

A document filed with the court asking the judge to throw out certain claims in a civil or criminal case, or to throw out the case altogether, is called a “Motion to Dismiss.” A Motion to Dismiss is often filed by a defendant immediately after the lawsuit has been served, but may be filed at any time during the proceedings. If a Motion to Dismiss a civil lawsuit is granted by the judge, the lawsuit is immediately ended. Grounds for dismissal upon a motion are governed in each jurisdiction’s laws. To explore this concept, consider the following Motion to Dismiss definition.

Definition of Motion to Dismiss


  1. A motion filed by either party in a lawsuit asking the court to throw out part of the case, or the case in its entirety.

Reasons for Filing a Motion to Dismiss

A Motion to Dismiss is often filed with the court at the earliest stages of the lawsuit, typically before either party has conducted their discovery. This is done when the defendant believes a claim in the lawsuit is legally invalid, or there are legitimate grounds for throwing the case out of court. When a Motion to Dismiss is filed, information supporting the grounds for dismissal must be included in the motion. There are different reasons for filing a Motion to Dismiss, many of which revolve around the following legal deficiencies:

Lack of Subject Matter Jurisdiction

The court in which the lawsuit was filed does not have jurisdiction, or the authority, to rule on the matter at hand. For example, a suit requesting enforcement of a child support order cannot be heard in small claims court.

Lack of Personal Jurisdiction

The court does not have the authority to rule on matters that affect one or all of the parties. For example, if Bob is in a car accident in Florida, and the other party involved in the accident files a lawsuit in California, the court would not be able to hear the case.

Improper Venue

The court, or “venue,” in which the matter has been fined is the wrong court to hear the case. For example, Amanda’s accountant, Charlie, siphoned money out of her account for his personal use. Charlie is charged with the crime of embezzlement in criminal court. Amanda wants to sue Charlie for her financial losses, but the criminal court cannot hear that part of the case, as it is not the proper venue. Amanda must file a lawsuit in civil court for damages related to the crime.

Failure to State a Claim for Which Relief Can be Granted

If the plaintiff fails to provide sufficient facts to, if taken on face value as being true, indicate that the defendant violated a law, or caused harm or loss due to negligence, he has failed to state a claim for which relief can be granted. In other words, if the complaint does not clearly say what the defendant did wrong, the court cannot grant any form of relief, and so the case does not need to be heard. For example, there is a company policy that employees greet one another in a friendly manner at work. Joe files a lawsuit claiming that Bob failed to say hello in passing. Bob can file a Motion to Dismiss, as failing to greet another person is not illegal, therefore there is no claim for which relief can be granted.

Insufficient Service of Process

According to the law, a copy of the Summons and Complaint must be personally delivered to the defendant. This is referred to “service of process,” and may be done by a registered process server, the sheriff’s department, or a Constable. In most jurisdictions, service of process may also be accomplished by an individual over the age of majority, who is not involved in the case. Personally delivering the lawsuit to the defendant ensures he or she has been notified of the lawsuit, and has an opportunity to provide an answer to the complaint. A sworn, written statement of when, where, and how the documents were delivered must be filed with the court. In the event the defendant is not properly served, he or she can file a Motion to Dismiss based on insufficient service of process.

Passing of Statute of Limitations

Each state has a statute of limitations, which is a set timeframe in which a plaintiff has to file a lawsuit. The timeframes vary by the type of case, as well as by jurisdiction. In any case, if the statute of limitations timeframe has expired, the plaintiff no longer has grounds to sue the defendant.

For example, if state law requires a plaintiff to bring a negligence case within two years of the date of the injury, and the plaintiff waits two years and two weeks, the defendant can file a Motion to Dismiss, asking the entire case be thrown out. If the court grants the motion, the plaintiff cannot be granted relief on the matter.

How to File a Motion to Dismiss

A Motion to Dismiss is prepared through a Motion to Dismiss form. The Motion to Dismiss form is contains the information about the case and the reason that the defendant is asking for the case at hand to be dismissed. During a pretrial conference called by either party or the judge, a Motion to Dismiss can be presented. This meeting of the parties is in place in order to settle minor issues and help the trial run smoothly. Other pretrial motions can also be brought up at this time. Other types of motions include:

Motion for Summary Judgment

A Motion for Summary Judgment expresses to the court that there are no material facts in dispute, and so there is not need for a trial. The Motion for Summary Judgment asks the judge to simply render a decision based on the facts presented in the documents already filed with the court. The other party may argue that they do indeed dispute certain facts, and that they will present some evidence at trial that disputes those facts. If the summary judgment is granted, the lawsuit is ended, and the court will make an order.

Motion for Default Judgment

When a defendant to a civil lawsuit fails to file an answer to the complaint within the time limit specified by law, the plaintiff may file a Motion for Default Judgment. In rendering a default judgment, the judge ends the case, often awarding whatever relief the plaintiff has requested.

Requirements for Filing a Motion to Dismiss

The basic requirements necessary for filing a Motion to Dismiss are outlined in each jurisdiction’s statutes, and rules of civil procedure. Filing a Motion to Dismiss requires a written document be filed with the court, stating the reason the dismissal is requested. The written motion should be supported by evidence, such as police reports, affidavits, or other pertinent evidence.

After a Motion to Dismiss has been filed, the opposing party can file an Answer to Motion to Dismiss. This response disputes the claims made in the motion. Once the motion and answer have been filed, a hearing will be held in which the judge will decide if a dismissal is warranted. If the judge does not agree, the case proceeds normally.

Withdrawal of Motion to Dismiss

Once a Motion to Dismiss has been filed, the only way to withdraw it is for the filing party to formally requesting that the court remove the previously filed motion. A request for withdrawal of a motion must include the party’s reason for the withdrawal, and the decision of whether to do so is left with the judge. Withdrawals are most commonly done if the parties reach a settlement prior to a decision on the matter. Once the judge has ruled on a Motion to Dismiss, however, the order remains in place, regardless of the request for withdrawal.

Sua Sponte Dismissal

A sua sponte dismissal is a voluntary dismissal, based on the court’s own motion. The court may enter a sua sponte dismissal of certain aspects of a case, or of the case in its entirety. A judge may order a sua sponte dismissal if he finds major problems with the case. For example, if the judge realizes, on review of the pleadings, that the court lacks jurisdiction over the subject matter, he will order a sua sponte dismissal.

Dismissal With Prejudice or Without Prejudice

When a case is dismissed, it can be done so with prejudice, or without prejudice. Dismissing a case with prejudice means that the matter has been considered, and dismissed permanently, so that the plaintiff cannot bring the matter back before the court. The dismissal of a case without prejudice sometimes occurs when the plaintiff has either filed the case in the wrong court, has come to the court unprepared due to no fault of his own, or there is some other issue that needs to be taken care of before the case can be heard. A dismissal without prejudice enables the plaintiff to re-file the lawsuit at a later time.

Real Life Motion to Dismiss Defamation Lawsuit

In February 2015, comedian Bill Cosby and his legal team filed a Motion to Dismiss a defamation lawsuit brought against him by three women, after he called them “liars” for claiming that he sexually assaulted them. Cosby makes the Motion to Dismiss based on the fact that such comments were made by his publicist and attorneys, not himself. Additionally, Cosby points out that the comments were made in self-defense, and could therefore not be considered defamation.

In his Motion to Dismiss, Cosby points out that he need not stand idly by while his accusers publicly attack him. Rather, any individual accused of serious wrongdoing has the right to deny allegations, and to question the integrity of the accusers, without fear of defamation charges. Cosby’s legal team makes the point that “statements made in self-defense are privileged, and cannot form the basis of a defamation action.” In this case, the judge must determine, from the pleadings filed with the court, whether the plaintiffs have stated a claim for which relief can be granted.

Related Legal Terms and Issues

  • Answer – A pleading in which a defendant responds to a charge or complaint made by a plaintiff.
  • Authority – The right or power to make decisions, give orders, or to control something or someone.
  • Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • Complaint – The initial pleading made by the plaintiff to being a civil lawsuit. It can also refer to documentation that details criminal charges against a defendant.
  • 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.
  • Discovery – The process used by the plaintiff and defendants in court cases share information or facts possessed by the opposite party.
  • Judgment – A formal decision made by a court in a lawsuit.
  • Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
  • Material Fact – A fact that a reasonable person would conclude is pertinent to the decision to be made, or which, if left out, would reasonably result in a different decision being made.
  • Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
  • Summons – An order or citation to appear in court, or to appear before a judge or magistrate.