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, provides general template structures used in courts across the United States, and walks through a fully worked example of a finished motion on invented facts.
⚠️ 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]
Worked Example: A Complete Motion to Dismiss
The templates further down show the skeleton. This section shows what a finished motion to dismiss looks like from caption to certificate of service, using an invented case so that every part can be filled in rather than left as a blank. The court, the parties, the dates, and the facts are all fictional, and nothing here is drafted for any real dispute.
The scenario. Northgate Equipment Leasing, LLC has sued Jordan Ellis for breach of contract in federal court (the parties are citizens of different states and the claim is over $75,000, so the court has diversity jurisdiction). The complaint says Ellis signed an "Equipment Lease Agreement" in 2024, that Ellis "breached the Agreement," and that Northgate is owed $96,500. It does not say which term was broken, what Ellis did or failed to do, or when. It never alleges that Northgate delivered the equipment or otherwise performed its side, and no copy of the agreement is attached. Ellis, representing himself, moves to dismiss under Rule 12(b)(6) for failure to state a claim.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF [STATE]
NORTHGATE EQUIPMENT LEASING, LLC, )
) Case No. 2:26-cv-01187
Plaintiff, )
) DEFENDANT'S MOTION TO DISMISS
v. ) PLAINTIFF'S COMPLAINT UNDER
) FED. R. CIV. P. 12(b)(6), AND
JORDAN ELLIS, ) MEMORANDUM IN SUPPORT
)
Defendant. )
_______________________________________)
Defendant Jordan Ellis, appearing pro se, moves under Federal Rule of Civil
Procedure 12(b)(6) to dismiss the Complaint (ECF No. 1) for failure to state
a claim upon which relief can be granted. In the alternative, Defendant moves
under Rule 12(e) for a more definite statement. This motion is supported by
the following memorandum.
MEMORANDUM IN SUPPORT
I. INTRODUCTION
Plaintiff's Complaint contains a single count for breach of contract. It
alleges that Defendant signed an "Equipment Lease Agreement" and that
Defendant "breached the Agreement." Compl. ¶¶ 6, 9. It does not say which
provision was breached, what Defendant did or failed to do, or when. It does
not allege that Plaintiff delivered any equipment or performed its own
obligations, and it does not attach the Agreement. A complaint that recites
the word "breach" without any facts showing one does not state a claim.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
II. ALLEGATIONS OF THE COMPLAINT
For purposes of this motion only, Defendant accepts the Complaint's factual
allegations as true. The Complaint alleges:
1. Plaintiff is a limited liability company that leases commercial
equipment. Compl. ¶ 1.
2. On or about March 3, 2024, Defendant "entered into an Equipment Lease
Agreement" with Plaintiff. Compl. ¶ 6.
3. "Defendant breached the Agreement." Compl. ¶ 9.
4. "As a result of Defendant's breach, Plaintiff has been damaged in the
amount of $96,500." Compl. ¶ 10.
The Complaint contains no other allegations about the Agreement's terms,
Defendant's conduct, or Plaintiff's performance. No copy of the Agreement is
attached or quoted.
III. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain
"enough facts to state a claim to relief that is plausible on its face."
Twombly, 550 U.S. at 570. A claim is facially plausible when the pleaded
facts allow the court to draw a reasonable inference that the defendant is
liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The court accepts well-pleaded factual allegations as true, but
"[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice." Id. A pleading that offers
"labels and conclusions" or "a formulaic recitation of the elements of a
cause of action will not do." Twombly, 550 U.S. at 555.
IV. ARGUMENT
A. The Complaint Does Not Allege Facts Showing a Breach.
Under [State] law, a claim for breach of contract requires (1) a valid
contract, (2) the plaintiff's performance or a valid excuse for
nonperformance, (3) the defendant's breach, and (4) resulting damages.
[Cite your state's controlling case on the elements of breach of contract.]
The only allegation of breach is the sentence "Defendant breached the
Agreement." Compl. ¶ 9. That is the element itself, restated as a
conclusion. The Complaint does not identify the provision at issue, the
obligation Defendant supposedly owed, the act or omission that violated it,
or the date on which it occurred. Without those facts the Court cannot draw
a reasonable inference that a breach took place, as opposed to a payment
dispute, a disputed return, or a disagreement about the lease term. This is
precisely the "formulaic recitation" that Twombly and Iqbal hold
insufficient. Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678.
B. The Complaint Does Not Allege That Plaintiff Performed.
The Complaint never alleges that Plaintiff delivered the leased equipment,
that the equipment conformed to the Agreement, or that Plaintiff otherwise
did what the Agreement required of it. Plaintiff's own performance is an
element of the claim, and its absence is not a technicality: a lessor that
never delivered has nothing to collect. Because this element is missing
entirely, the claim fails for a second, independent reason.
C. In the Alternative, a More Definite Statement Is Warranted.
If the Court does not dismiss, Defendant asks in the alternative that
Plaintiff be ordered under Rule 12(e) to identify the provision of the
Agreement allegedly breached, the conduct constituting the breach, and the
date of the breach, and to attach the Agreement. Defendant cannot reasonably
frame an answer to a breach allegation that does not say what was breached.
V. CONCLUSION
For these reasons, Defendant respectfully requests that the Court dismiss
the Complaint under Rule 12(b)(6). In the alternative, Defendant requests an
order under Rule 12(e) directing Plaintiff to file a more definite statement
within 14 days.
Dated: September 12, 2026 Respectfully submitted,
/s/ Jordan Ellis
Jordan Ellis, Defendant, pro se
[Street address]
[City, State ZIP]
[Telephone]
[Email]
CERTIFICATE OF SERVICE
I certify that on September 12, 2026, I filed the foregoing with the Clerk
of Court and served a copy on Plaintiff's counsel of record, [Name], by
[first-class mail / email as agreed / the court's electronic filing system]
at [address].
/s/ Jordan Ellis
Jordan Ellis
What to notice in this example:
- It attacks the pleading, not the truth. A 12(b)(6) motion assumes every fact in the complaint is true and argues that, even so, the complaint does not state a claim. The motion never says "I did not breach"; it says "the complaint does not say what the breach was."
- Every fact points to a paragraph. "Compl. ¶ 9" tells the judge exactly where to look. A motion that paraphrases the complaint without pin cites is far easier to deny.
- Two citations, both verified. Twombly and Iqbal are the Supreme Court cases that set the federal pleading standard, and the pin cites above are to the pages where the quoted language appears. The state-law elements carry a placeholder on purpose: they differ by state, and some states also require the plaintiff to plead the contract's terms or attach it.
- It offers the court a middle path. Asking for a more definite statement in the alternative gives a judge who is reluctant to dismiss outright an easy way to grant partial relief.
- A first dismissal is usually without prejudice. On a first 12(b)(6) motion, courts commonly dismiss with leave to file an amended complaint. A motion like this one often produces a better-pleaded complaint rather than the end of the case, which is still useful: it forces the plaintiff to commit to specific facts early.
What changes before this could be filed in a real case:
- The court name and case number from the summons, and the party names exactly as they appear on the complaint.
- The state-law elements and their citation. This is the placeholder that carries real weight.
- Every paragraph cite, checked against the complaint that was actually served.
- The local rules: many courts require a separate notice of motion, a proposed order, a specific font and page limit, or a certificate that the parties conferred before filing.
- The deadline. In federal court an answer is generally due 21 days after service (Rule 12(a)(1)(A)(i)), and a Rule 12 motion filed within that window suspends the answer deadline until the court rules (Rule 12(a)(4)). State courts have their own deadlines and, in some states, a different procedure altogether: California's demurrer, Texas Rule 91a, and New York CPLR 3211 are covered in the state-specific section below.
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.
Example: Motion for Voluntary Dismissal Without Prejudice
"Motion to dismiss without prejudice" describes two different documents, depending on who is filing:
- A defendant asking the court to throw out the plaintiff's case. Whether that dismissal ends up with or without prejudice is up to the court, and the worked example above is this kind of motion.
- A plaintiff ending their own case for now while keeping the right to refile. In federal court that is a voluntary dismissal under Rule 41(a). Before the defendant serves an answer or a motion for summary judgment, the plaintiff can file a one-paragraph notice of dismissal and no motion or court order is needed (Rule 41(a)(1)(A)(i)); unless the notice says otherwise, that dismissal is without prejudice (Rule 41(a)(1)(B)). Once an answer has been filed, dismissal requires a court order "on terms that the court considers proper" (Rule 41(a)(2)), which means a short motion like the one below.
The scenario. Dana Whitfield sued a former landlord, Marcus Okafor, over a withheld security deposit. Okafor answered. Whitfield has since learned that the property is owned and managed by a company that collected and still holds the deposit, and that company is not a party. Rather than litigate against the wrong defendant, Whitfield asks to dismiss without prejudice so a single case can be refiled against both. Everything here is invented.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF [STATE]
DANA WHITFIELD, )
) Case No. 2:26-cv-00942
Plaintiff, )
) PLAINTIFF'S MOTION FOR
v. ) VOLUNTARY DISMISSAL WITHOUT
) PREJUDICE UNDER
MARCUS OKAFOR, ) FED. R. CIV. P. 41(a)(2)
)
Defendant. )
_______________________________________)
Plaintiff Dana Whitfield, appearing pro se, moves under Federal Rule of Civil
Procedure 41(a)(2) for an order dismissing this action without prejudice. In
support, Plaintiff states:
1. Plaintiff filed the Complaint on May 4, 2026, seeking the return of a
residential security deposit. Defendant answered on June 1, 2026.
Because an answer has been served, dismissal requires a court order
under Rule 41(a)(2).
2. Through documents produced on August 20, 2026, Plaintiff learned that
the property is owned and managed by Harbor Line Property Management,
LLC, which collected and holds the deposit and is not a party to this
action.
3. Plaintiff intends to refile a single action naming both Defendant and
Harbor Line Property Management, LLC, so that the claim can be resolved
in one proceeding.
4. No trial date has been set, no dispositive motion is pending, and
discovery is at an early stage. Defendant will not suffer plain legal
prejudice from dismissal, and any expense incurred to date will be
equally useful in the refiled action.
5. Plaintiff conferred with Defendant's counsel on September 8, 2026.
Defendant does not oppose dismissal without prejudice.
WHEREFORE, Plaintiff respectfully requests that the Court dismiss this action
without prejudice, with each party to bear its own costs.
Dated: September 12, 2026 Respectfully submitted,
/s/ Dana Whitfield
Dana Whitfield, Plaintiff, pro se
[Street address]
[City, State ZIP]
[Telephone]
[Email]
CERTIFICATE OF SERVICE
I certify that on September 12, 2026, I served a copy of this motion on
Defendant's counsel of record, [Name], by [method] at [address].
/s/ Dana Whitfield
Two things are worth knowing before using a voluntary dismissal. First, Rule 41(a)(1)(B) contains a "two-dismissal rule": if a plaintiff has already dismissed an action on the same claim once by notice, a second notice of dismissal counts as a judgment on the merits, which is a dismissal with prejudice. Second, a dismissal without prejudice does not stop the statute of limitations. Whether a refiled case is timely depends on the limitations period and on whether the state has a "savings statute" that allows refiling within a set time after a dismissal, which is a common reason to talk to an attorney before dismissing anything.
Example Language: Asking for Dismissal With Prejudice
Searches for a "motion to dismiss with prejudice example" usually want the sentences that make the request, not a full brief. The wording below is invented placeholder text, to be adapted to a real complaint and the rule that applies in the court where the case is pending.
Opening paragraph:
Defendant [Your Name] moves to dismiss Plaintiff's Complaint with
prejudice under [Rule or statute] because the claim is barred by
[the statute of limitations / another legal defect that no amendment
could cure].
Request in the conclusion:
Because the defect appears on the face of the Complaint and cannot be
cured by additional factual allegations, Defendant respectfully requests
that the Complaint be dismissed with prejudice. In the alternative,
Defendant requests dismissal without prejudice.
Two drafting points follow from how the examples in this guide are built:
- Say why amendment would not help. The worked example earlier in this guide, by contrast, attacks missing facts, which is why it is framed as a request that the court dismiss and, in the alternative, order a more definite statement.
- Leave the blank in the proposed order honest. The proposed order in Step 4 below has a "[with/without] prejudice" blank. Fill it in to match what the motion actually asks for, and check the court's local rules to see whether a proposed order is required.
The text of the Federal Rules of Civil Procedure is published on the U.S. Courts rules page. Rules and deadlines vary by court, so check the local rules where the case is pending.
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.
Is there an official motion to dismiss form?
In most courts, no. Federal courts and most state courts publish fill-in forms for a few routine filings (fee waivers, summonses, some answers) but not for a motion to dismiss, because the motion has to argue a specific legal defect in a specific complaint. The "form" is the structure shown in the worked example above: caption, the motion itself, a memorandum with an introduction, the complaint's allegations, the legal standard, the argument and a conclusion, a signature block, and a certificate of service. A few state self-help centers do offer motion forms for limited situations, so the court's self-help page is worth checking first.
How do I file a motion to dismiss without a lawyer?
The steps are the same for a self-represented party as for an attorney:
- Confirm the deadline. In federal court the motion is due before the answer, generally within 21 days of being served with the complaint (Rule 12(a)(1)(A)(i)). State deadlines differ.
- Identify the ground. The most common are failure to state a claim, lack of jurisdiction, improper service, and an expired statute of limitations.
- Draft the motion and memorandum following the structure in the worked example, citing the complaint by paragraph and verifying every legal citation.
- Check the local rules for page limits, formatting, a separate notice of motion, a proposed order, a meet-and-confer requirement, and whether a hearing has to be requested.
- File and serve. File with the clerk (electronically where the court allows it, otherwise in person or by mail), serve every other party, and file the certificate of service.
- Calendar what comes next: the opposition deadline, any reply deadline, and the hearing date if one is set.
Many self-represented litigants have an attorney review the draft in a single limited-scope session before filing; the "Limited Scope Representation Options" section above explains how that works.
What does "motion to dismiss without prejudice" mean?
It can refer to either of two things. When a court grants a defendant's motion to dismiss "without prejudice," the case is over for now but the plaintiff can fix the problem and file again, usually by filing an amended complaint. When a plaintiff files a "motion for voluntary dismissal without prejudice," the plaintiff is ending the case on their own initiative while keeping the right to refile, and the example above shows what that looks like. A dismissal "with prejudice" is final: the same claim cannot be brought again.
What are some examples of court motions?
A motion is any written request asking the court to order something. Beyond the motion to dismiss, the motions self-represented litigants run into most often are:
- Motion for an extension of time, or for a continuance of a hearing
- Motion to compel discovery responses
- Motion for a protective order
- Motion for summary judgment
- Motion for default judgment
- Motion to amend a pleading
- Motion in limine, to exclude evidence at trial
- Motion for reconsideration, and motion for a new trial
- In family cases, motions for temporary orders and motions to modify custody or support
Templates and plain-language explanations for these are collected on the motion templates page.
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.