Motions to Dismiss

by Will Newman

Litigation can be long and expensive. As a result, many defendants want to take the first available opportunity to get out of litigation. This is usually by filing a motion to dismiss, asking the court to end the lawsuit for certain reasons that do not require further discovery or a trial.

Why should you read this post about motions to dismiss?

  • You are a defendant and you do not want to be one anymore.

  • You want to know how a ridiculous lawsuit somehow had a victory in court.

  • You want to know why a lawsuit is proceeding even though the judge already wrote a lengthy opinion about it.

Image credit: https://en.wikipedia.org/wiki/Editing#/media/File:Editorial_office_of_Bild_newspaper,_West_Berlin,_1977.jpg

What a Motion to Dismiss Means

When a defendant moves to dismiss, she asks the court to dismiss the case (usually in its entirety, but sometimes just in part) generally for one of four reasons:

  • The first reason is that the court cannot hear the claim, either because the defendant is not subject to jurisdiction in the court or because the claim belongs in a different kind of court.

  • The second reason is that the complaint does not contain the necessary allegations to support a claim.

  • The third is that the claims in the complaint are subject to an affirmative defense like the statute of limitations.

  • And the fourth reason is that the plaintiff has already waived the right to sue by signing a release or has already litigated the claims at issue.

Because these grounds for a motion to dismiss can be technical, motions to dismiss do not usually address whether the allegations in the lawsuit are true. In fact, when deciding a motion to dismiss, courts usually assume that the allegations in the complaint are true.

This can be very confusing for non-lawyers because a defendant who disputes the allegations may wonder why the motion to dismiss focuses on technical issues in the allegations instead of a broad denial of the allegations. (If the motion to dismiss fails or the defendant chooses not to file one, the denial of allegations usually comes in the answer.). Similarly, a plaintiff who wins a motion to dismiss may think she has won the case, but really the judge has just decided that the court will hear the case and that the complaint properly alleges claims, but not that the plaintiff has met her burden in proving the case.

How a Motion to Dismiss Works

Different courts have different rules for motions to dismiss. In federal court, these motions are governed by Rule 12(b). In New York State Courts, they are governed by CPLR 3211.

Often, motions to dismiss proceed like a regular motion. The rules usually require the defendant to file a legal brief with the court, explaining why the complaint should be dismissed. They usually must do so within a few weeks of receiving the complaint, although it is common for the plaintiff and defendant to agree on a more lenient schedule. And some judges require the parties to file letters with the court first, explaining what they intend to say in their motion to dismiss and opposition. The defendant may submit evidence with her motion, but the grounds for them to do so are usually limited. If a defendant does submit evidence, it may be a contract that is relevant to the claims or a release that establishes that the plaintiff has already given up her claim.

If the basis for the motion is that the defendant claims she is not subject to jurisdiction in the court, the defendant is still usually allowed to have her counsel litigate the motion in court without accepting the court’s jurisdiction.

Ultimately, after the court receives written submissions from both sides and, if it wants, hears oral argument, it decides whether to dismiss the case or let it proceed in court.

Some cases in some courts wait until a motion to dismiss is decided to permit discovery. This gives a party an additional reason to move to dismiss: it presents the chance to delay or even avoid discovery. But often, like in New Jersey State court, a court may insist on discovery proceeding, even when a motion to dismiss is pending.

What Happens After a Motion to Dismiss

If a defendant loses a motion to dismiss, she files an answer and proceeds with the case as if she had never filed the motion to dismiss at all. The only real loss is the time and expense of the motion.

But if the plaintiff loses, her options depend on the grounds for the dismissal. If the court dismissed the case “on the merits,” she may have no option but to move for reargument or to appeal. But if the court dismissed the case because it was filed in the wrong court, the plaintiff may simply re-file the same case in the correct court. And if the court dismissed the case on certain technical grounds, statutes like New York’s CPLR 205 may permit the plaintiff to re-file the case with a corrected complaint.

Litigation law