How to Write a Motion to Dismiss

By Patrick Gleeson, Ph. D., Registered Investment Adv ; Updated June 05, 2017
Judge

A written motion to dismiss asks the judge to throw your case out of court due to one or more fundamental flaws in the plaintiff's filing. Here are some common reasons for the request and a sample form you can follow when writing your own motion.

Motions to Dismiss

Legal motions are formal requests made to judges. They all ask the judge to do something: to change some earlier order (for child support, for instance); to postpone a trial date; to get an award for attorney fees or, in this case, to throw out the case altogether. Motions are sometimes referred to as "petitions," a term that emphasizes that you aren't just asking the judge to dismiss the case because that's your preference; you're presenting him with facts and arguments.

Timing of Motions to Dismiss

Most motions to dismiss can be made at any time during a trial. In practice, they tend to occur at the beginning because the most common reason for such a petition is that the plaintiff's initial filing contains fundamental invalidating errors.

Arguments for Motions to Dismiss

The most common reason for filing a motion to dismiss is that the plaintiff has "failed to state a claim upon which relief can be granted," meaning that the filing fails to state a claim on which the judge can act. For instance, the plaintiff might argue that you owe money and haven't paid it, but the plaintiff then failed to present the contract that specifies this obligation.

Here are several other likely reasons for a motion to dismiss:

  • The plaintiffs have presented arguments that contradict existing law.
  • The plaintiffs lack capacity to sue (for example, they are not the allegedly injured parties). 
  • The suit is in violation of the statute of limitations

    meaning that it's too late to file the suit.
    The plaintiffs have not presented any documentary evidence of the assertions made in the filing. The alleged injury has already been adjudicated or settled. A prior pending action prevents this case from moving forward. The plaintiffs have signed an agreement to arbitrate, not to sue.

Structure of the Motion to Dismiss

Your motion to dismiss begins with the request for dismissal and then presents each reason for the request. These reasons are often called "points and authorities," which simply means that you will present arguments in support of your claim, and you will back up your arguments with "authorities," such as citations of existing laws. You can use the sample Motion to Dismiss form in this article's Resources to get started.

Tips for Writing a Motion to Dismiss

Courts of law can be frustrating for non-lawyers who are representing themselves in pro per – the common abbreviation of in propria persona, which translates roughly as "on your own behalf."

It's always a good idea to visit the court in other proceedings before your own begins to familiarize yourself with the process – and especially the court of the judge scheduled to hear your case. You'll get a better idea of how the court works and how the judge relates to the parties. Some judges like a little back-and-forth; others want to do the talking while you listen.

In general, keep your written arguments (and any presentations in court) as brief as possible. Judges hate wordiness, and they've visited each of the issues and arguments you're presenting many times before. Don't try their patience!

In the process of researching and writing your motion to dismiss, you're going to learn a lot about legal jargon. That's good, but avoid using it yourself as much as you can. Judges are usually initially sympathetic to pro per defendants, but quickly get put off by a defendant who's trying to show how much she knows.

About the Author

Patrick Gleeson received a doctorate in 18th century English literature at the University of Washington. He served as a professor of English at the University of Victoria and was head of freshman English at San Francisco State University. Gleeson is the director of technical publications for McClarie Group and manages an investment fund. He is a Registered Investment Advisor.