A written motion to dismiss asks the judge to throw a case out of court due to one or more fundamental flaws in the plaintiff's filing. Motions to dismiss can be filed because the plaintiff's complaint didn't allege sufficient facts to support the claim, or because of jurisdictional or statute of limitations issues, or for various other reasons. How to write a motion to dismiss will substantively depend on why you're filing it.
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 the case of a motion to dismiss, to throw out the case altogether. A motion to dismiss is a way of attacking a filed complaint without first filing an answer; it's a motion you can file in response to a lawsuit to try to get rid of it before it even hits the ground.
Timing of Motions to Dismiss
Most motions to dismiss can be made at any time during a lawsuit; however, 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. Most early motions to dismiss take the form of a demurrer, which means that the motion is saying that, even if everything in the complaint is taken as true, the plaintiff still hasn't stated a cause of action. This is filed right away, and the court can either dismiss the complaint, allow the plaintiff time to amend the complaint or tell the plaintiff the complaint is fine and force you to file an answer.
Read More: How to Answer a Motion to Dismiss
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 - the demurrer, as described above. For instance, a plaintiff may sue someone for personal injury on a theory of negligence. To claim negligence, the plaintiff must show that the defendant (the person he's suing) had a duty, and he breached that duty, and his breach of that duty cased plaintiff's injuries and plaintiff suffered damages as a result. The plaintiff's complaint must show facts indicating that there was a duty, that it was breached, that the breach caused his injuries and that he was damaged. So he could say that defendant owned a store and as the owner, he had a duty to keep the sidewalk free from ice, but he didn't bother to de-ice the sidewalk (thus breaching the duty), and plaintiff slipped on the ice and fell, breaking his arm and causing him to incur $1,500 in medical bills. If plaintiff pleads those things, he has pled sufficiently. However, if the complaint only says "I broke my arm and it was his fault," it could be dismissed on demurrer.
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 may need to include a brief in support depending on the rules of your court, and you'll need a proposed order, which is the order you want the judge to sign if he finds in your favor.
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." Self-represented people are also sometimes called pro se.
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.
To write a motion to dismiss, figure out the basis for the motion - why the case should be dismissed - and then look for examples or forms online. Check your state or county's local rules to make sure the motion is properly formatted.