On What Grounds Can You File a Motion to Dismiss?

By Audrey Farley
A motion to dismiss must be filed within so many days upon service of the complaint.

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A motion to dismiss is filed against a complaint instead of an answer. If you file an answer, you may waive your right to file a motion to dismiss. The grounds for a motion to dismiss depend upon the jurisdiction. However, federal and state courts follow a similar rubric for establishing grounds for the motion.

Lack of Personal Jurisdiction

The court in which the complaint has been filed must have authority to bind the defendant to the lawsuit. The court's authority depends upon the specific laws of the jurisdiction, but generally a state court has jurisdiction to bind persons who reside within the state or who have a connection to the state (such as owning property or conducting business activity within the state). Federal district courts exercise the same jurisdictional reach as the states in which they sit, when it comes to personal jurisdiction.

Lack of Subject Matter Jurisdiction

Courts can only exercise jurisdiction over suits that they are empowered to hear. For instance, United States district courts (federal courts) have federal question jurisdiction, which is jurisdiction over constitutional matters and federal laws. U.S. district courts also have diversity jurisdiction, which is jurisdiction over matters that are interstate or that have a matter in question that exceeds $75,000 and admiralty jurisdiction (over the waters). State courts have residual jurisdiction over all other matters. Within each state, court levels (circuit, general district, small claims) are granted jurisdiction according to that state's constitution.

Improper Service

A complaint is legitimated by proper service. Proper service is effected when a person who is competent, a non-party and over the age of 18 years, serves the complaint or summons upon the defendant (normally at his home or place of business) who is also competent and over 18 years of age. The defendant need not sign any documents (such as a return of service, which verifies service) in order for service to be effected.

Failure to State a Claim

A motion to dismiss has grounds if the complaint fails to state a claim upon which relief may be granted. Even if all of the claims stated in the complaint are accurate and not contestable, the facts do not necessarily entitle the plaintiff to relief or legal recourse. The plaintiff must have a legitimate claim to action.

About the Author

Audrey Farley began writing professionally in 2007. She has been featured in various issues of "The Mountain Echo" and "The Messenger." Farley has a Bachelor of Arts in English from the University of Richmond and a Master of Arts in English literature from Virginia Commonwealth University. She teaches English composition at a community college.

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