How to Answer a Motion to Dismiss

By Terry Walcott
All factual allegations must be accepted as true.

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You initiated a lawsuit against a party by filing a complaint with the clerk of court and serving a copy on the defendant. But instead of answering the complaint by admitting or denying its individual allegations, the defendant has responded by filing a motion to dismiss. The reason: for failure to state a claim upon which relief could be granted. Defeating this motion to dismiss is critical because your entire lawsuit can be thrown out of court if you lose. Therefore, your written response to the motion to dismiss will be critical.

Answering the motion

Review the motion to dismiss and the supporting memorandum of law. Focus on the arguments offered by the defendant in support of his claim that your complaint fails to state a claim upon which relief may be granted.

Research the applicable law in your jurisdiction relating to motions to dismiss and the applicable legal standards.

Create a case caption listing the court in which the case is filed, the names of the parties, the case file number, and the motion you are opposing. You should use the same caption used on the face of the complaint.

Draft an introduction to your memorandum to oppose to the defendant’s motion to dismiss. This section should briefly state the grounds for the defendant’s motion to dismiss and summarize your opposing arguments for denial of the motion.

Write a section outlining the applicable law you found while conducting the research suggested in Step 2 above. Under the law of most states, the court considering a motion to dismiss must accept the facts alleged in the complaint as true. The court may dismiss the case only if it determines that the plaintiff can prove “no set of facts” in support of his claim. For cases filed in federal court, the allegations of the complaint must also be accepted as true, but the “no set of facts” requirement is no longer the law in federal courts. Instead, federal courts are permitted to analyze whether the plaintiff has alleged “enough facts to state a claim to relief that is plausible on its face.” In other words, federal courts may examine inferences from the facts that support the plaintiff’s claims and inferences from the facts that support the defendant defenses.

Draft an arguments section in which you summarize and address each of the arguments put forward by the plaintiff in support of his motion to dismiss. If the motion to dismiss is attacking a breach of contract claim, you should point out that the complaint alleges the elements of a contract, and that the contract was breached resulting in harm or damages to you. Whatever the legal claim under attack, you should outline in the argument section that the complaint alleges sufficient facts that, if proven at trial, would amount to a violation of law.

Sign your memorandum in opposition to the motion to dismiss. Serve it on the opposing party and file a copy with the clerk of court within the time allowed by the relevant rules of civil procedure.

About the Author

Originally from the Caribbean, raised in New York City, and now based in Orlando, Florida, Terry Walcott has spent over 20 years performing analysis and writing on issues relating to antitrust and other complex legal matters. He holds a Bachelor of Arts in political science from Columbia University and a Juris Doctor degree from Harvard Law School.