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Motion to Dismiss
Practical Law UK Glossary 3-525-7178 (Approx. 2 pages)
Glossary
Motion to Dismiss
A procedural device that enables defendants to try to dispose of some or all of a plaintiff's claims at the beginning of a case. Federal Rule of Civil Procedure (FRCP) 12 governs federal motions to dismiss. A defendant making a motion to dismiss must do so before filing an answer or other responsive pleading, and the motion is generally due when the defendant's answer would have been due (see FRCP 12(b)). Defendants may move to dismiss on the following grounds:
- Lack of subject matter jurisdiction (FRCP 12(b)(1)).
- Lack of personal jurisdiction (FRCP 12(b)(2)).
- Improper venue (FRCP 12(b)(3)).
- Insufficient process (FRCP 12(b)(4)).
- Insufficient service of process (FRCP 12(b)(5)).
- Failure to state a claim on which relief can be granted (FRCP 12(b)(6)).
- Failure to join the necessary party (FRCP 12(b)(7)).
Defendants may move to dismiss some or all claims but can only make one motion to dismiss, asserting all defenses (other than those in FRCP 8(c)) that were available when the motion was made (FRCP 12(g)). FRCP 12(h) sets out the defenses that are waived if not raised in a motion to dismiss.
For additional information on motions to dismiss, see Practice Notes, Motion to Dismiss: Overview and Motion to Dismiss: Drafting and Filing a Motion to Dismiss, Opposition and Reply.