Motion to Dismiss 

A motion to dismiss may be filed by either party, the plaintiff or defendant, when the party feels as though a lawsuit is not warranted or appropriate given the situation. A Motion to Dismiss may be filed at any time during the litigation process. The party must state in detail why there is enough factual evidence and legal basis to have the lawsuit dismissed. A judge will review the motion to determine its merit, and if he or she determines there is not enough evidence or any legal basis to bring the suit any further, the claim will be dismissed.

Filing a motion to dismiss

A motion to dismiss is a powerful weapon in a defendant’s arsenal. It protects clients against non-meritorious lawsuits, promotes judicial economy, and facilitates the speedy resolution of frivolous cases.  In federal court, the motion to dismiss is governed by Rule 12(b) of the Federal Rules of Civil Procedure, which provides specific grounds upon which an individual may move to dismiss a complaint. Under federal law, and in most jurisdictions, an individual may move to dismiss a complaint through a motion to dismiss for the following reasons:

  • Lack of subject matter jurisdiction;
  • Lack of personal jurisdiction;
  • Improper venue;
  • Improper service; and
  • Failure to state a claim upon which relief may be granted.

A defendant may seek to have a complaint dismissed for more than one reason, such as lack of service of process and failure to state a claim upon which relief can be granted.  An individual may also move to dismiss the entire complaint or only specific causes of action. Of course, if a defendant is only asking the Court to dismiss certain claims, those claims must be specified.

Form of drafting a motion to dismiss

After deciding to file a motion to dismiss, drafting a motion to dismiss, a defendant should adhere to the following suggestions and guidelines to write the most effective and persuasive motion possible:

  • Write a short and clear introduction;
  • Draft a factually accurate narrative;
  • Know the standard that must be met and craft an explanation of the standard;

Ultimately, a defendant should think thoroughly about the likelihood of success before filing a motion to dismiss, and should not include weak or substandard arguments, as they will likely detract from the strongest arguments. Judges review motions to dismiss with exacting scrutiny. Notwithstanding, motions to dismiss are granted regularly, demonstrating that they are clearly appropriate in some cases, and the quality of the writing directly affects the chance of success.

  1. Writing a short and clear introduction for a motion to dismiss

An introduction of a motion to dismiss does not need to be longwinded. However, it should provide some general facts and analysis and let the court know that the motion seeks dismissal of the plaintiff’s complaint. In the introduction, an individual can choose to discuss the applicable legal principles. Since a defendant will provide cites later in the motion, it is not necessary to provide them in the introduction.

Courts deal with motions to dismiss frequently, so an individual should in most instances omit a detailed explanation of “the law” in the introduction of the motion to dismiss.  However, the introduction should at least mention the applicable law. Below is an example introduction where the defendant is moving to dismiss the complaint for lack of subject matter jurisdiction:

Long Construction Company files this motion to dismiss, asking the Court to dismiss Eastern States Construction Company’s complaint for lack of subject matter jurisdiction. Eastern alleges that the Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1332, which vests a federal court with jurisdiction over state-law claims when there is diversity of citizenship. While Long admits that the amount in controversy exceeds the $75,000 statutory minimum, Long and Eastern are not citizens of different states; thus, there is no diversity of citizenship. Long and Eastern are both citizens of Virginia. Long is a Delaware corporation; however, its principal place of business is in Virginia.  And Eastern is a Virginia corporation with its principal place of business in Virginia. Because Long and Eastern are both residents of Virginia, this Court lacks subject matter jurisdiction. Thus, Long’s motion to dismiss should be granted.

This introduction tells the court that Long wants a dismissal, tells the court the facts that support Long’s motion, namely, that Long and Eastern are citizens of the same state, tells the court what law Long is relying without going into great detail about the law, since federal courts know the requirements of § 1332, and reminds the court again what Long is asking the court to do.  Introductions are extraordinarily helpful for judges and their clerks and individuals should use them in every motion.

  1. Drafting a factually accurate form for a motion to dismiss

With the very important exception of motions to dismiss for failure to state a claim, Statements of Fact in motions to dismiss are not very important. Under the Federal Rules, the court must assume the allegations in the complaint are true.  Thus, in the motion to dismiss, an individual can still briefly outline the factual contentions in the case but he cannot dispute that they are true for purposes of the motion to dismiss.

What to include in the statement of facts

What an individual must do in the statement of facts is include facts that will be used in the brief to support the motion to dismiss. Many times, these facts will have nothing to do with the substance of the complaint. For example, the necessary supporting facts might be the client’s state of incorporation or the amount in controversy if the federal court’s subject matter jurisdiction is being challenged, the client’s state of residency if lack of personal jurisdiction is the basis for the motion, or the “non-fact” that the client has not been served with process in the action if lack of service of process is the basis for the motion.  Importantly, for each fact offered in the statement of facts, an individual must cite the complaint or some other admissible evidence that supports the position.

Below is an example of an effective statement of facts.  Suppose an individual represents a defendant-corporation and wants to file a motion to dismiss the plaintiff’s personal injury action on the basis of lack of service of process.  The plaintiff attempted to perfect service on the client by serving the corporation president’s administrative assistant, but the individual has legal authority from the jurisdiction that service on an administrative assistant who is not authorized to accept service is not sufficient. How might these facts be presented?

      Case example

Dean filed this personal injury action against Jackson Management Company, Inc. on February 15, 2013, just one day before the two-year statute of limitations expired. See Personal Injury Complaint.

On February 28, 2013, Dean attempted to perfect service on Jackson by delivering a copy of the summons and complaint to Elizabeth Ronald, the administrative assistant of Jackson’s president, Ryan Winston. Affidavit of Elizabeth Ronald (“Ronald Aff.”). That day, Dean’s process server, who did not identify himself as such, entered Jackson’s headquarters and asked Ronald if she worked for Winston. When Ronald told the process server that she did work for Winston, he handed her the envelope and walked out of Jackson’s office. In fact, Ronald was not even aware that Dean’s process server was attempting service until Ronald opened the package, which bore Winston’s name, and saw the summons and complaint.

Ronald is not an officer of Jackson and is not Jackson’s registered agent for service. Affidavit of Ryan Winston (“Winston Aff.”). Ronald had no authority to accept service of process on behalf of Jackson and did not represent to the process server that she had such authority.




Out of an abundance of caution, Jackson filed an answer within 30 days of the date Jackson was purportedly served. See Answer of Defendant Jackson Management Company.

Analysis of the passage

This passage contains very little information about the underlying factual allegations; in fact, the only information the reader learns is that the suit is a personal injury action. However, that is because the allegations in the complaint are not important for purposes of Jackson’s motion to dismiss—the only “facts” that matter are those that bear on the issue of whether service on the administrative assistant was valid service, so those are the only facts the writer outlines.  And Jackson’s decision not to mention the underlying allegations also is a strategic one.  Jackson wants the court to focus on the Dean’s “bad” conduct in waiting until the last minute to file the complaint then failing to properly perfect service, not the “bad” conduct Jackson allegedly committed that injured Dean.  By declining to detail the underlying facts, Jackson seeks to avoid giving the court a reason to feel sorry for Dean and allow him another opportunity to perfect service.

If the motion to dismiss is one for failure to state a claim, however, the underlying allegations are critically important.  Why?  In filing a motion to dismiss, the filer basically says: “For purposes of the motion, I’ll concede that the plaintiff’s allegations are true. But even if they are, the plaintiff still can’t state a claim.”

  1. Standard to be met for a motion to dismiss form

The standard for granting a motion to dismiss is high. An individual must know what needs to be proved to show that the client is entitled to dismissal. In so doing, the individual must present the law honestly, but should also state the standard in a way that favors the client’s position. Below is an example of how that can be accomplished for a motion to dismiss for failure to state a claim.

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the complaint must “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A motion to dismiss should be granted when the plaintiff “can prove no set of facts in support of [the plaintiff’s] claims which would entitle [the plaintiff] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Seventh Circuit Court of Appeals, has interpreted this standard to mean that, to survive a motion to dismiss for failure to state a claim, the plaintiff’s complaint “must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101 (7th Cir. 1984)




A grant of dismissal pursuant to Rule 12(b)(6) “serves the very valuable function of saving judicial and party resources in cases where it simply would not be productive to proceed.” Worthington v. Subaru-Isuzu Auto., Inc., 868 F. Supp. 1067, 1068 (N.D. Ind. 1994). If every claim were allowed to proceed to trial, “the costs generated thereby would be enormous and there would be little benefit in the way of increased accuracy in the results.” Gomez v. Illinois State Board of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). When it is “obvious well before trial that the defending party is entitled to judgment…there is no need to expend further the resources of the parties and the court.” Id.

This is a good, defendant-friendly explanation of the general standard as interpreted by the Seventh Circuit. Instead of focusing on what the defendant must prove to get the motion granted, the author drafts the standard in terms of what the plaintiff must have done to survive the motion. This makes it appear as if the plaintiff bears the burden of proof. The author uses the following language:

  • “To survive a motion to dismiss, the complaint must…”
  • “A motion to dismiss should be granted when the plaintiff…”
  • “The plaintiff’s complaint must…”

What does that paragraph add to the explanation of the standard? A lot, for the defendant. The author uses the second paragraph to emphasize the importance of 12(b)(6) motions and is essentially saying to the court: “I’m helping you out by filing this motion. I’m trying to preserve judicial resources, avoid wasting money, and prevent this fruitless case from clogging up the court docket.”



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