What happens after a motion to dismiss is denied?

You were in a car accident a while ago, which didn’t seem to result in that much damage to the other car or driver; but, now you’ve been sued by the other driver. Although you don’t deny that you were involved in the accident, you don’t believe that the claims in the lawsuit are valid. While you can fight the court case, it will take a considerable amount of your time and money to do so. So, you may wonder, do you have another option? Enter the motion. While this is not a viable option for all defendants and there’s no guarantee that it will be granted, there are a variety of reasons why you may want to file a motion to dismiss.

Motion to dismiss: the basics

A motion to dismiss can be filed by either party in a case at any time during the proceedings, but it’s usually filed by a defendant at the beginning of a lawsuit. This type of motion may focus on the facts and allegations in the complaint and any documents – called “exhibits” – that are submitted in support of the complaint.

A motion is filed when a party believes that the complaint is legally invalid, which can be based on a variety of grounds. For example, before disgraced comedian Bill Cosby’s retrial, his defense team filed a motion arguing that the sexual assault alleged in the criminal complaint had happened outside of the “statute of limitations.” However, the judge dismissed the motion stating that the argument over the date of the alleged assault was a disputed issue for trial and could not be decided on the motion.

What a motion to dismiss means

When a defendant moves to dismiss, she asks the court to dismiss the case (usually in its entirety, but sometimes just in part) generally for one of four reasons:

  • The first reason is that the court cannot hear the claim, either because the defendant is not subject to jurisdiction in the court or because the claim belongs in a different kind of court.
  • The second reason is that the complaint does not contain the necessary allegations to support a claim.
  • The third is that the claims in the complaint are subject to an affirmative defense like the statute of limitations.
  • And the fourth reason is that the plaintiff has already waived the right to sue by signing a release or has already litigated the claims at issue.

Because these grounds for a motion can be technical, motions to dismiss do not usually address whether the allegations in the lawsuit are true.  In fact, when deciding a motion to dismiss, courts usually assume that the allegations in the complaint are true.


This can be very confusing for non-lawyers because a defendant who disputes the allegations may wonder why the motion to dismiss focuses on technical issues in the allegations instead of a broad denial of the allegations.  (If the motion to dismiss fails or the defendant chooses not to file one, the denial of allegations usually comes in the answer.).  Similarly, a plaintiff who wins a motion to dismiss may think she has won the case, but really the judge has just decided that the court will hear the case and that the complaint properly alleges claims, but not that the plaintiff has met her burden in proving the case.

Grounds for filing a motion to dismiss

A motion can be filed on a variety of grounds, which are based on legal deficiencies. Some common grounds for filing a motion include:

  • Insufficient Service of Process: The complaint and summons weren’t served properly.
  • Statute of Limitations Has Expired: Each state has “statutes of limitations,” or time limits in which certain lawsuits can be filed.
  • Lack of Subject Matter Jurisdiction: In order for a court to rule on a case, it must have “subject matter jurisdiction,” the authority to hear a particular type of case.
  • Lack of Personal Jurisdiction: Similarly, a court must have “personal jurisdiction” over a defendant in order to make a decision involving the defendant. A court has personal jurisdiction over a party when he or she is a resident or has “sufficient minimum contacts” with the jurisdiction where the lawsuit has been filed.
  • Improper Venue: Even when a court may have personal jurisdiction over the parties, it may be the improper “venue,” which refers to the specific location of the court (based on state laws).
  • Failure to State a Claim for Which Relief Can Be Granted: There are a variety of requirements with which a plaintiff must comply when filing a complaint, including a valid cause of action. A motion may be granted if the plaintiff’s complaint fails to adequately allege all of the elements of a claim or if the complaint fails to allege a measurable injury.

How to File a motion to dismiss

As previously mentioned, the procedure for filing a motion will depend on the jurisdiction in which the lawsuit is filed. Generally, however, a defendant must file a motion to dismiss before filing an “answer” to the complaint. If the motion is denied, the defendant must still file their answer, usually within a shortened amount of time. It’s important to be aware that specific reasons for a case dismissal must be in the first document filed with the court, otherwise that issue is considered waived.

The motion must be filed with the court and served on the other party. The other party then has the opportunity to respond to the motion, usually within a couple of weeks. The judge will then review each side’s motion, and give the court’s decision at a predetermined hearing date.

Ruling on a motion to dismiss

When ruling on a motion, courts generally assume that the facts and allegations in the complaint are true and will view them in the light most favorable to the plaintiff. Thus, it’s generally difficult to prevail on a motion. If it’s granted, the case can be dismissed “without prejudice” or “with prejudice.” If the case is dismissed without prejudice, the case can be filed again at a later time. However, if a case is dismissed with prejudice, the case is over and cannot be refiled.

It’s also possible for the court to dismiss a case “sua sponte,” meaning without being prompted by either party. The court has this option when grounds for a case dismissal exist. For example, if neither party has an issue with venue where the case was filed, the court may still dismiss the case for improper venue.

Should you file a motion? speak to a lawyer to learn more

Lawsuits have several procedural rules that plaintiffs and defendants must both follow. The failure to do so can have a negative impact on your case. As seen above, certain errors can even result in a case dismissal. Whether you’re thinking about filing a lawsuit or you’ve had a lawsuit filed against you, the best course of action is to get in touch with a local litigation attorney to learn about all of your options going forward.

What happens when a judge denies a defendant’s motion to dismiss?

When a judge denies a defendant’s motion to dismiss, the case will continue because the defendant did not convince the judge to terminate the case. The plaintiff has not won (yet).

When students read a U.S. court decision where a judge “denies a motion,” it may appear that the judge is ruling that the plaintiff won her case.  That’s not accurate. In a civil litigation, when a judge denies a defendant’s motion, the case continues instead of ending early.   The plaintiff did not win the case, however, the defendant failed to convince the judge that the case (or at least one of the claims in the case) must end.

In a motion, a defendant asks a judge to end all or part of plaintiff’s case. A defendant typically brings a motion early in the litigation.  The defendant is asking the judge to end plaintiff’s case because there is a defect in plaintiff’s claim or because of another issue that requires the case to end. For example, a defendant may argue that the plaintiff’s complaint is meritless on its face.  The defendant also might argue that the court lacks personal or subject matter jurisdiction, meaning that plaintiff brought the case in the wrong court. But if the judge denies the motion, it does not mean that either the plaintiff or the defendant won.  The case will simply continue.

Case example

Let’s say Patty sues David for fraud in a United States federal court. Rule 9 of the Federal Rules of Civil Procedure requires Patty to include certain details in her complaint because she is alleging fraud. Patty must allege when, where, and how the fraud took place.

If Patty’s complaint does not include these details, David could ask the judge to dismiss the fraud claim. But if the judge denies David’s motion, then Patty’s case will continue to the next stage of the litigation.  Patty has not won her case yet. The case is not over – Patty must still prove her claims if the case goes to trial.

What happens when the court grants a defendant’s motion to dismiss?

The answer depends on whether the court granted the motion to dismiss with prejudice or not.  If a court grants the motion to dismiss with prejudice, then plaintiff’s claim is terminated. For instance, let’s say Patty sues David for fraud in federal court and fails to satisfy the particularity requirements of Rule 9(b) because she does not allege when or how the fraud occurred.  If David moves to dismiss Patty’s complaint and the court grants the motion to dismiss without prejudice, then Patty will have an opportunity to amend her complaint and try again.

On the other hand, if the judge grants the motion to dismiss with prejudice, then Patty’s case is over.  She can appeal if she thinks the judge made a mistake but otherwise her fraud case is done. Also, keep in mind, that if the court grants the motion to dismiss on jurisdictional grounds, then the plaintiff will probably be allowed to sue defendant again, but in a different court.

How a motion to dismiss works

Different courts have different rules for motions to dismiss.  In federal court, these motions are governed by Rule 12(b).  In New York State Courts, they are governed by CPLR 3211.Often, motions to dismiss proceed like a regular motion.  The rules usually require the defendant to file a legal brief with the court, explaining why the complaint should be dismissed.  They usually must do so within a few weeks of receiving the complaint, although it is common for the plaintiff and defendant to agree on a more lenient schedule.  And some judges require the parties to file letters with the court first, explaining what they intend to say in their motion to dismiss and opposition.  The defendant may submit evidence with her motion, but the grounds for them to do so are usually limited.  If a defendant does submit evidence, it may be a contract that is relevant to the claims or a release that establishes that the plaintiff has already given up her claim.

If the basis for the motion is that the defendant claims she is not subject to jurisdiction in the court, the defendant is still usually allowed to have her counsel litigate the motion in court without accepting the court’s jurisdiction. Ultimately, after the court receives written submissions from both sides and, if it wants, hears oral argument, it decides whether to dismiss the case or let it proceed in court.

Some cases in some courts wait until a motion to dismiss is decided to permit discovery.  This gives a party an additional reason to move to dismiss: it presents the chance to delay or even avoid discovery.  But often, like in New Jersey State court, a court may insist on discovery proceeding, even when a motion to dismiss is pending.

What happens after a motion to dismiss

If a defendant loses a motion to dismiss, she files answer and proceeds with the case as if she had never filed the motion to dismiss at all.  The only real loss is the time and expense of the motion. But if the plaintiff loses, her options depend on the grounds for the dismissal.  If the court dismissed the case “on the merits,” she may have no option but to move for re-argument or to appeal.  But if the court dismissed the case because it was filed in the wrong court, the plaintiff may simply re-file the same case in the correct court.  And if the court dismissed the case on certain technical grounds, statutes like New York’s CPLR 205 may permit the plaintiff to re-file the case with a corrected complaint.










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