A motion to dismiss can end a lawsuit before trial if the plaintiff's case has legal deficiencies. This guide explains what a motion to dismiss is, when it's appropriate, and provides general template structures used in courts across the United States.
⚠️ CRITICAL DISCLAIMER: The templates and examples in this article are for educational purposes only and are not tailored to your specific case. Motion to dismiss requirements vary significantly by jurisdiction. All legal citations must be independently verified. We strongly recommend consulting with a licensed attorney before filing any motion. This is not legal advice.
Reading time: 20 minutes
What is a Motion to Dismiss?
A motion to dismiss is a formal request asking the court to end a case without going to trial because the plaintiff's complaint has legal problems.
Common Grounds for Dismissal
Federal Rule of Civil Procedure 12(b) lists several grounds:
12(b)(1) - Lack of Subject Matter Jurisdiction
- Court doesn't have authority to hear this type of case
- Example: Filing federal civil rights claim in state court
12(b)(2) - Lack of Personal Jurisdiction
- Court doesn't have authority over the defendant
- Example: Defendant has no connection to the state
12(b)(3) - Improper Venue
- Case filed in wrong location
- Example: Should be filed in different county/district
12(b)(4) - Insufficient Process
- Technical defect in summons
- Usually can be corrected
12(b)(5) - Insufficient Service of Process
- Defendant wasn't properly served
- Example: Process server served wrong person
12(b)(6) - Failure to State a Claim
- Complaint doesn't allege facts that could support legal claim
- Most common dismissal ground
- Example: Plaintiff claims breach of contract but doesn't allege contract existed
12(b)(7) - Failure to Join Necessary Party
- Case can't proceed without including another party
- Example: Contract dispute but co-signer not included
State Court Equivalents
Each state has similar rules:
- California: CCP § 430.10 (Demurrer)
- New York: CPLR § 3211 (Motion to Dismiss)
- Texas: TRCP Rule 91a (Motion to Dismiss)
- Florida: Fla. R. Civ. P. 1.140 (Motion to Dismiss)
- Illinois: 735 ILCS 5/2-615 (Motion to Dismiss)
Check your state's civil procedure rules for exact requirements.
When to File a Motion to Dismiss
Timing
Federal court:
- Must file before Answer (typically 21 days after being served)
- Or file Answer and motion simultaneously
State court:
- Varies by state (10-30 days after being served)
- Check local rules
Strategic Considerations
Consider filing motion to dismiss when:
- Obvious legal deficiency in complaint
- Clear jurisdictional problem
- Plaintiff can't cure defect even if given chance
- Early dismissal would save significant time and money
May NOT want to file when:
- Dismissal unlikely (wastes time and money)
- Better to file Answer and proceed to summary judgment
- Risk of plaintiff amending to fix defect
- Weak grounds could annoy judge
Cost-benefit analysis:
- Attorney fees to file motion: $1,500-$5,000
- Pro se: Just your time
- If successful: Case ends immediately
- If unsuccessful: Delayed proceeding, may strengthen plaintiff's case
Required Elements of Motion to Dismiss
Standard Components
1. Notice of Motion
- Tells court and other party what you're requesting
- States hearing date (if required)
2. Memorandum of Law
- Legal argument with citations
- Analysis of why complaint should be dismissed
- Case law supporting your position
3. Proposed Order
- What you want judge to sign
- Makes judge's job easier
4. Certificate of Service
- Proof you served the motion on plaintiff
- Required for all motions
Format Requirements
Check local rules for:
- Page limits (typically 15-25 pages for motion to dismiss)
- Font requirements (usually 12-point Times New Roman)
- Margin requirements (usually 1-inch margins)
- Line spacing (usually double-spaced)
- Caption format
- Signature requirements
Standard Motion to Dismiss Format
Caption
All motions must include case caption:
[NAME OF COURT]
[COUNTY/DISTRICT]
[PLAINTIFF NAME], ) Case No. [XX-XXXX]
Plaintiff, )
) DEFENDANT'S MOTION TO
v. ) DISMISS PURSUANT TO
) [RULE/STATUTE]
[YOUR NAME], )
Defendant. )
____________________________)
Notice of Motion
NOTICE OF MOTION
TO: [Plaintiff's Name and Address]
PLEASE TAKE NOTICE that on [Date] at [Time], or as soon thereafter as
the matter may be heard, Defendant will appear before the Honorable
[Judge's Name], [Court Name], located at [Court Address], and move
the Court for an order dismissing Plaintiff's Complaint pursuant to
[Cite Rule/Statute].
This motion is based on this Notice of Motion, the attached Memorandum
of Law, the pleadings and papers on file in this action, and any oral
argument presented at the hearing.
Dated: [Date]
Respectfully submitted,
/s/ [Your Name]
[Your Name]
[Address]
[Phone]
[Email]
Memorandum of Law - Standard Structure
MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT'S MOTION TO DISMISS
INTRODUCTION
[2-3 paragraphs explaining what you're requesting and why]
STATEMENT OF FACTS
[Numbered paragraphs stating relevant facts from complaint]
LEGAL STANDARD
[Explain the legal standard for dismissal under applicable rule]
ARGUMENT
I. [FIRST GROUND FOR DISMISSAL]
A. [Sub-argument]
B. [Sub-argument]
II. [SECOND GROUND FOR DISMISSAL]
A. [Sub-argument]
B. [Sub-argument]
CONCLUSION
For the foregoing reasons, Defendant respectfully requests this Court
grant Defendant's Motion to Dismiss.
Dated: [Date]
Respectfully submitted,
/s/ [Your Name]
Sample Motion to Dismiss Templates
⚠️ WARNING: These are general examples only. They must be customized for your specific case, jurisdiction, and situation. All case citations must be verified. Consult an attorney before use.
Template #1: Failure to State a Claim (12(b)(6))
Sample Structure - NOT Legal Advice:
MEMORANDUM OF LAW
INTRODUCTION
Defendant [Your Name] moves this Court to dismiss Plaintiff's Complaint
for failure to state a claim upon which relief can be granted pursuant to
Federal Rule of Civil Procedure 12(b)(6). Plaintiff's Complaint fails to
allege facts sufficient to support [the legal claim asserted].
LEGAL STANDARD
"To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
[Note: This is a real case citation that should be verified. Laws and
citations change. This example is for educational purposes only.]
ARGUMENT
I. PLAINTIFF'S COMPLAINT FAILS TO STATE A CLAIM FOR [CLAIM TYPE]
To state a claim for [claim type], Plaintiff must allege:
1. [Element 1]
2. [Element 2]
3. [Element 3]
Plaintiff's Complaint fails to allege [missing element]. [Explain why
complaint doesn't meet required elements, citing specific paragraphs].
Courts have dismissed similar claims where [cite case law examples].
CONCLUSION
Plaintiff's Complaint fails to state a claim for which relief can be
granted. Defendant respectfully requests this Court dismiss Plaintiff's
Complaint with prejudice.
⚠️ TEMPLATE WARNING: This is a general structure only. Actual legal
arguments depend on your specific facts, jurisdiction, and applicable law.
Consult attorney before filing.
Template #2: Lack of Personal Jurisdiction (12(b)(2))
Sample Structure - NOT Legal Advice:
ARGUMENT
I. THIS COURT LACKS PERSONAL JURISDICTION OVER DEFENDANT
A. Defendant Has Insufficient Contacts with [State]
Personal jurisdiction requires that defendant have "minimum contacts"
with the forum state such that maintenance of the suit does not offend
"traditional notions of fair play and substantial justice."
International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
[Note: This is a landmark case but should be verified with current law]
Defendant:
- Does not reside in [State]
- Has never conducted business in [State]
- Has no property in [State]
- Has never been physically present in [State]
- Has not purposefully availed [himself/herself] of [State] law
[Explain specific facts showing lack of contacts]
B. Exercise of Jurisdiction Would Violate Due Process
[Explain why requiring defendant to defend in this state would be
unfair given lack of contacts]
CONCLUSION
This Court lacks personal jurisdiction over Defendant. Defendant
respectfully requests dismissal for lack of personal jurisdiction.
⚠️ TEMPLATE WARNING: Personal jurisdiction is highly fact-specific and
varies significantly by state. This template is for educational purposes
only. Consult attorney.
Template #3: Statute of Limitations
Sample Structure - NOT Legal Advice:
ARGUMENT
I. PLAINTIFF'S CLAIMS ARE BARRED BY THE STATUTE OF LIMITATIONS
A. The Applicable Statute of Limitations
[State] law provides a [X]-year statute of limitations for [type of
claim]. [Cite specific statute].
[Note: Statutes vary by state and claim type. Verify current law.]
B. Plaintiff's Claims Are Time-Barred
Plaintiff alleges that [event] occurred on [date]. [Complaint ¶ X].
Plaintiff filed this action on [date], which is more than [X] years
after the alleged [event].
Therefore, Plaintiff's claims are time-barred.
C. No Exception to the Statute of Limitations Applies
Plaintiff cannot rely on [common exception] because [explain why
exception doesn't apply].
CONCLUSION
Plaintiff's claims are barred by the applicable statute of limitations.
Defendant respectfully requests dismissal with prejudice.
⚠️ TEMPLATE WARNING: Statute of limitations has many exceptions
(tolling, discovery rule, etc.). Consult attorney to determine if
exceptions apply.
How to Draft Your Motion to Dismiss
Step 1: Research Legal Grounds
Before drafting:
- Read plaintiff's complaint carefully
- Identify specific legal deficiencies
- Research applicable law (rule/statute)
- Find case law supporting dismissal
- Check if dismissal should be with or without prejudice
Research resources:
- Google Scholar - Free case law
- CourtListener - Free legal research
- Your state's statutes (usually free online)
- Law library (free access)
Step 2: Analyze the Complaint
Ask these questions:
Jurisdictional:
- Does this court have subject matter jurisdiction?
- Does this court have personal jurisdiction over me?
- Is venue proper in this court?
Procedural:
- Was I properly served?
- Is the complaint properly formatted?
- Does complaint include required elements?
Substantive:
- Does complaint state a valid legal claim?
- Are all required elements alleged?
- Are claims time-barred (statute of limitations)?
- Are there other legal deficiencies?
Document your analysis:
- Make notes on each potential ground
- Cite specific complaint paragraphs
- Find supporting case law
- Assess likelihood of success
Step 3: Draft the Motion
Writing tips:
Organization:
- Start with strongest argument
- One issue per section
- Use headings and subheadings
- Number all paragraphs
Style:
- Professional, respectful tone
- Clear, concise language
- Active voice
- Short sentences and paragraphs
Citations:
- Cite all cases, statutes, and rules
- Use proper legal citation format (Bluebook or state rules)
- Include page numbers and relevant quotes
- Verify all citations are current and accurate
⚠️ CRITICAL: Do not rely on case citations without verifying them. AI-generated text and online templates can contain fake citations. Always independently verify using:
- Official reporter (books at law library)
- Westlaw or LexisNexis
- Google Scholar
- CourtListener
Step 4: Draft Supporting Documents
Proposed Order:
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
Having considered Defendant's Motion to Dismiss, Plaintiff's Response,
and the arguments of counsel, and good cause appearing,
IT IS HEREBY ORDERED:
1. Defendant's Motion to Dismiss is GRANTED.
2. Plaintiff's Complaint is dismissed [with/without] prejudice.
3. [Any other relief requested]
Dated: ______________
_____________________________
Honorable [Judge's Name]
[Court Name]
Certificate of Service:
CERTIFICATE OF SERVICE
I hereby certify that on [Date], I served a true and correct copy of
the foregoing Motion to Dismiss on Plaintiff by:
[ ] Hand delivery
[ ] U.S. Mail, first class, postage prepaid
[ ] Email
[ ] [Other method allowed by local rules]
to:
[Plaintiff's Name]
[Address]
[Email if applicable]
/s/ [Your Name]
Step 5: Review and Edit
Before filing, check:
- All facts are accurate
- All citations are verified and correct
- No typos or grammatical errors
- Meets page limit
- Proper format (font, spacing, margins)
- All required components included
- Caption matches case exactly
- Signed and dated
- Certificate of service completed
Have someone else review:
- Friend or family member (check for clarity)
- Attorney (if possible - highly recommended)
- Self-help center staff (for procedural compliance)
Step 6: File and Serve
Filing:
- Make copies (original + 3 copies typical)
- File with court clerk
- Pay filing fee (if required)
- Get file-stamped copies
Service:
- Serve plaintiff within required time (often 5 days after filing)
- Use method allowed by rules
- File proof of service
Hearing (if required):
- Some courts schedule automatic hearings
- Others require you to request hearing
- Check local rules
Opposing a Motion to Dismiss
If plaintiff files motion to dismiss your counterclaim, or you're the plaintiff:
Response deadline:
- Federal: 21 days typically
- State: Varies (10-21 days)
Response structure:
- Introduction
- Legal standard
- Argument (address each ground raised)
- Conclusion
Key points:
- Complaint's allegations are accepted as true
- Court cannot consider evidence outside pleadings (usually)
- Dismissal granted only if no set of facts could support claim
- You may request leave to amend if dismissal granted
Common Mistakes to Avoid
1. Filing Too Late
Mistake: Missing deadline to file motion before Answer due
Consequence: Waived right to raise certain defenses
Solution: Mark deadline on calendar immediately when served. File motion within required time.
2. Wrong Standard of Review
Mistake: Arguing facts rather than legal sufficiency
Example: "Plaintiff's allegations are false"
Correct: "Even accepting Plaintiff's allegations as true, they fail to state a claim because..."
3. Fake or Incorrect Citations
Mistake: Using citations from online templates without verification
Consequence: Sanctions, loss of credibility, possible malpractice (for attorneys)
Solution: Verify EVERY citation independently using official sources
4. Wrong Rule/Statute
Mistake: Citing federal rule in state court or vice versa
Consequence: Motion denied, looks unprofessional
Solution: Confirm you're citing the correct rule for your court
5. Too Long or Too Complicated
Mistake: 50-page brief arguing every possible ground
Consequence: Judge won't read it all, dilutes strong arguments
Solution: Focus on 1-3 strongest grounds, be concise
6. No Proposed Order
Mistake: Forgetting to include proposed order
Consequence: Delays, judge annoyed
Solution: Always include proposed order
7. Not Serving Properly
Mistake: Forgetting to serve plaintiff or filing proof of service
Consequence: Motion may be denied
Solution: Serve promptly and file proof of service
After Filing Motion to Dismiss
Plaintiff's Response
Plaintiff typically has 10-21 days to file response:
Plaintiff may:
- Oppose motion (file response brief)
- Agree to voluntary dismissal
- Request leave to amend complaint
- Do nothing (default)
If plaintiff opposes:
- Read response carefully
- Prepare for hearing (if scheduled)
- Consider filing reply brief (if allowed)
The Hearing
Not all motions have hearings:
- Some courts decide on briefs only
- Others require oral argument
- Check local rules
If hearing scheduled:
Prepare:
- Review all briefs and complaint
- Prepare 5-10 minute oral argument
- Anticipate judge's questions
- Organize exhibits/documents
- Practice
At hearing:
- Dress professionally
- Arrive early
- Introduce yourself to judge
- Present argument clearly
- Answer questions directly
- Don't interrupt plaintiff
- Be respectful
Possible Outcomes
1. Motion Granted with Prejudice
- Case dismissed permanently
- Plaintiff cannot refile
- You win
2. Motion Granted without Prejudice
- Case dismissed but plaintiff can amend complaint
- Gives plaintiff chance to fix defects
- Partial win
3. Motion Granted in Part
- Some claims dismissed, others proceed
- Case continues on remaining claims
4. Motion Denied
- All claims proceed
- You must file Answer (typically 14 days)
- Case continues
5. Taken Under Advisement
- Judge will issue written ruling later
- Typical wait: 30-60 days
State-Specific Considerations
California - Demurrer
California uses "demurrer" instead of motion to dismiss:
- CCP § 430.10 lists grounds
- Must meet and confer before filing
- Different procedural rules
- "Sustained" = granted, "Overruled" = denied
New York - CPLR § 3211
- Broader grounds than federal court
- Can raise affirmative defenses
- Different timing rules
- Often decided on papers, no hearing
Texas - Rule 91a
- Specific to baseless cases
- Sanctions available
- Strict requirements
- Different standard than federal court
Florida - Rule 1.140
- Similar to federal rules
- Face of complaint standard
- Can attach exhibits in some cases
⚠️ ALWAYS check your state's specific rules and recent case law
Resources for Drafting Motions
Free Resources
Court resources:
- Court website (forms, local rules)
- Self-help center (procedural guidance)
- Law library (free research and computers)
Legal research:
- Google Scholar - Case law
- CourtListener - Opinions and dockets
- Justia - Legal information
- State court websites (recent opinions)
Educational:
- Court's self-help videos
- YouTube tutorials
- Legal blogs and articles
- CLE materials (sometimes free)
Paid Resources (If Needed)
Legal research:
- Westlaw ($100-$200/month)
- LexisNexis ($100-$200/month)
- Casetext ($65/month)
Legal help:
- Document preparation services ($300-$800)
- Limited scope attorney review ($500-$1,500)
- Full attorney representation ($3,000-$10,000+)
Software:
- Prosei AI - Motion drafting assistance ($39.99/month)
- Browse our motion templates for additional motion types and guided formatting
- Template services ($50-$200)
When to Hire an Attorney
Situations Where Attorney is Highly Recommended
Complex legal issues:
- Novel or unsettled areas of law
- Multiple jurisdictions involved
- Constitutional questions
- Conflicting case law
High stakes:
- Large money judgment claimed
- Serious consequences (business closure, property loss)
- Important precedent for your industry
- Potential sanctions
Procedural complexity:
- Federal court (more complex than state)
- First time in litigation
- Other party has attorney
- Multiple parties involved
Strategic considerations:
- You're not confident in legal analysis
- Motion likely to be opposed vigorously
- Case could settle if motion succeeds
- Risk of sanctions if motion is frivolous
Limited Scope Representation Options
Attorney can:
- Review your draft motion ($500-$1,000)
- Draft motion for you to file ($1,500-$3,000)
- Coach you on oral argument ($300-$600)
- Appear for hearing only ($1,500-$3,000)
- Handle entire motion ($3,000-$5,000)
Benefits:
- Professional quality
- Correct legal analysis
- Verified citations
- Better chance of success
- Less stress
Find limited scope attorney:
- State bar modest means program
- Local bar association
- Avvo.com or Lawyers.com
- Ask self-help center for referrals
Frequently Asked Questions
Can I file a motion to dismiss pro se?
Yes. You have the right to represent yourself and file any motion. However, motions to dismiss involve complex legal analysis and are often better handled by attorneys.
How long does it take to get a ruling?
Varies widely:
- Some judges rule from bench (same day)
- Others take under advisement (30-60 days)
- Complex motions may take 60-90 days
What if my motion is denied?
You must file an Answer (usually within 14 days). The case continues on all claims. You can raise the same issues later in summary judgment motion or at trial.
Can I file multiple grounds for dismissal?
Yes. You can raise all applicable grounds in one motion. Courts address each ground separately.
What does "with prejudice" mean?
Dismissal "with prejudice" = permanent, plaintiff cannot refile same claims
Dismissal "without prejudice" = temporary, plaintiff can amend complaint or refile
Can I file a motion to dismiss after filing an Answer?
Generally no for most grounds (waived). But subject matter jurisdiction can be raised anytime.
Do I need to attend a hearing?
Depends on court's rules. Some decide on briefs only. If hearing scheduled, strongly recommend attending.
Can I settle after filing motion to dismiss?
Yes. Cases often settle after motion to dismiss is filed but before ruling. Motion gives leverage in settlement negotiations.
Conclusion
A motion to dismiss can be an effective tool to end litigation early, but requires careful legal analysis and proper procedure. Key takeaways:
✅ Before filing:
- Thoroughly research grounds for dismissal
- Verify all case citations independently
- Check local court rules for format/timing
- Consider consulting attorney
✅ When drafting:
- Use proper format and legal citations
- Focus on legal sufficiency, not facts
- Be clear, concise, professional
- Include all required documents
✅ After filing:
- Serve plaintiff properly
- Prepare for hearing (if required)
- Be ready to file Answer if denied
- Consider settlement
⚠️ Remember:
- Templates must be customized to your case
- All citations must be verified
- Motion to dismiss is complex legal document
- Consult attorney before filing
A motion to dismiss is a powerful legal tool, but also carries risks. Careful preparation and, ideally, attorney assistance will maximize your chances of success.
Need help drafting a motion to dismiss? Try Prosei AI - AI-assisted motion drafting with templates and legal research tools.
⚠️ CRITICAL: AI tools can make mistakes and hallucinate citations. Always have an attorney review before filing.
Want attorney review of your motion? Find a litigation attorney
Disclaimer: This article provides general information about motions to dismiss and is not legal advice. Motion to dismiss requirements, procedures, and standards vary significantly by jurisdiction and case type. The templates provided are educational examples only and are not tailored to your specific situation. All legal citations must be independently verified, as case law and statutes change over time. We strongly recommend consulting with a licensed attorney before filing any motion to dismiss. Use of these templates is at your own risk.