Not every lawsuit goes to trial. If someone has filed a complaint against you, it does not mean that you must go before the court – but it does mean that you must respond.

A “Motion to Dismiss” is one such response. It is usually filed immediately after the complaint has been served upon the defendant. In simple terms, it is asking the court that the case be “thrown out,” and that nothing goes further.

Filing a motion to dismiss is an opportunity for the defendant to defeat claims against them before a lot of evidence has been marshalled. Motions to dismiss often address either problems with the procedure of how the complaint was filed or weaknesses in the complaint itself.

Procedural reasons for a Motion to Dismiss

Various flaws in the initial complaint can render a lawsuit susceptible to a Motion to Dismiss. Here are some examples:

  • The summons was incorrect, or the summons and complaint were not served properly. Of the two, the second is the most likely. If you have been served, it is important that you keep accurate notes of how it happened. An attorney will be able to review this to identify any problems.
  • If there is a lack of jurisdiction. It’s possible that the person filing the complaint did not do so in the correct court. If the circumstances require that it be filed in the county in which the defendant resides, and it was filed in a completely different county, there is no legal jurisdiction and the case must be dismissed.
  • The statute of limitations has expired. This defense claims that the plaintiff cannot sue the defendant because it is now outside the time limit for filing the case. For instance, the time limit set by law for bringing a personal injury case is two years from the date the plaintiff was injured and the plaintiff waits three years to file the case.
  • There is a lack of subject matter jurisdiction. Example: If the case involves federal jurisdiction and the claim is filed in a state court, the judge will not have the authority to pass judgment on the case.

Motions to dismiss based on the merits

When a complaint is legally insufficient, it may be dismissed for failure to present a claim for which relief can be granted.

Anyone can file a claim, but there may not be a law to back it up. For example, one neighbor can file a claim against another neighbor for eating ice cream on their own front porch. For whatever reason, the person filing the complaint finds this to be intolerable. However, there is no law against eating ice cream on your own front porch – and the offended neighbor’s lawsuit will be dismissed.

When, as in the above example, the plaintiff’s claim does not have a legal basis, it may be disposed of early through a Motion to Dismiss.