Motion to Dismiss
MTDmoh-shun too dis-MISS
A defendant's request that the court throw out the lawsuit before reaching the evidence, on the ground that the complaint fails as a matter of law.
Governing rule: Fed. R. Civ. P. 12(b)
Plain-English definition
A motion to dismiss is filed by the defendant in the early stages of a lawsuit, asking the court to throw the case out without ever reaching the evidence. Even if everything the plaintiff says were true, the defendant argues, the case still fails. Most often filed within 21 days of being served with the complaint.
In a sentence Defendant filed a 12(b)(6) motion arguing that even accepting all of plaintiff's allegations as true, the complaint failed to plead facts plausibly establishing intent.
How it works
Filed within 21 days of service of the complaint, before the answer is due. Filing the motion suspends the deadline to answer until the court rules. Common subsections: 12(b)(1) lack of subject-matter jurisdiction, 12(b)(2) lack of personal jurisdiction, 12(b)(3) improper venue, 12(b)(6) failure to state a claim, 12(b)(7) failure to join an indispensable party.
Why it matters
The motion to dismiss is the highest-stakes early ruling in most civil cases. A win for the defendant ends the case; a loss launches discovery, which is where 80% of litigation costs live.
Notable cases
-
Bell Atlantic Corp. v. Twombly (U.S. Sup. Ct., 2007)
Set the modern plausibility standard for 12(b)(6) motions.
-
Ashcroft v. Iqbal (U.S. Sup. Ct., 2009)
Extended Twombly to all civil cases; clarified plausibility analysis.
Frequently asked
- When is a motion to dismiss usually filed?
- Within 21 days of service of the complaint, before the defendant files an answer.
- What happens if it's denied?
- The defendant must file an answer within 14 days. The case proceeds to discovery.
- Is a motion to dismiss the same as summary judgment?
- No. A motion to dismiss tests the sufficiency of the complaint on its face. Summary judgment, filed later, tests whether actual evidence supports the claims.