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How to Make a Motion to Dismiss

George Simons | October 19, 2022

Judges dismissing cases like ^^

Summary: A Motion to Dismiss is a request to dismiss a court case without further debate or consideration. If you are being sued for a debt you owe, you can file a Motion to Dismiss if you have evidence that the case should be thrown out. Likewise, the person or company suing can also dismiss the case voluntarily if they realize they can't prove their claims.

If you are the subject of a legal proceeding, such as an eviction or debt collection lawsuit, you may be able to get the lawsuit thrown out of court by filing a motion to dismiss.

You may be asking yourself, what exactly does that term mean? Well, a motion to dismiss is where one side of the lawsuit asks the judge to throw out or dismiss the case without reviewing all the legal arguments and case facts. You can make a motion to dismiss at any time during the case. However, it's usually a pretrial motion that the defendant uses at the start of the case proceedings.

When you make a motion to dismiss, you're alleging that based on the allegations and facts that are in the Complaint, the claim does not have any validity. So, you are saying that the case shouldn't proceed. There can be many reasons that you would file a motion to dismiss. The most important thing to remember is that you should respond with an Answer before you file the motion to dismiss. If you do not respond first with an Answer in a debt collection case, the debt collector will receive a default judgment, and you will not get a chance to file a motion to dismiss.

The Motion to Dismiss also may be called a 'demurrer.' This is where you give a written objection to a claim in a civil case. It alleges that even if everything that the plaintiff alleges is true, there is no legal argument for the case to go further. You're making the argument that the plaintiff has not laid out a claim where relief can be provided, so the case should be dismissed.

Today, we will answer three questions we often receive; who can file a motion to dismiss? When can I file a motion to dismiss? Can you cancel a lawsuit?

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Who can file a motion to dismiss?

In a civil lawsuit, both parties can file a motion to dismiss. In a debt collection case, the plaintiff is the party that initiated the lawsuit, while the defendant is the party that is being sued. So, both the plaintiff and the defendant can file a motion to dismiss, but that motion is going to look different depending on which party filed it.

For example, a plaintiff may file a motion to dismiss in a debt lawsuit if they want to voluntarily dismiss the case. After receiving the defendant's Answer to their Complaint, the plaintiff might realize they don't want to pursue the debt any further. At this point, they can voluntarily dismiss the case—this is great news for the defendant!

On the other hand, if the defendant has grounds to file a motion to dismiss, they can do so as well. We will discuss potential reasons that a defendant's motion to dismiss would be granted later in this article.

The most common reason for a dismissal is when the plaintiff and defendant reach a settlement agreement. In fact,

When can a motion to dismiss be filed?

You can file a motion to dismiss at any time during the case. Usually, the defendant files a motion to dismiss early in the lawsuit— immediately after filing an Answer. A motion to dismiss usually alleges that the case shouldn't proceed because of a problem in the case that isn't related to the facts.

Note that you should check the rules for civil lawsuits in your state, so you know the timeline for filing a motion to dismiss after the plaintiff serves you with a lawsuit.

In a motion to dismiss, you can ask the judge to throw out any or all of the claims in the lawsuit. The judge will review your claims and issue a ruling.

Let's consider an example.

Example: Lily has a credit card debt that Discovery Collection (DC) was contracted to collect. On researching how to get a lawsuit thrown out of court, she realized DC did not have enough information about her and the debt. She first responded to the suit with an Answer and then filed a motion to dismiss without prejudice because DC did not attach the contract she had signed with the credit card company. They also did not have documents that clearly showed the debt history and that it belonged to her. The court dismissed the case without prejudice and ordered DC to file a new case with all the vital documents if they still wished to continue with the claim.


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Can you cancel a lawsuit?

If a judge rules favorably on a motion to dismiss, it effectively cancels a lawsuit. If there are grounds to get a lawsuit filed against you tossed out of court, you should do so. A common procedural mechanism to get a lawsuit tossed out of court is filing a motion to dismiss.

You need to adhere to the procedural requirements set forth by the court to properly file this type of motion. Once the motion is filed with the court, you need to prepare yourself to make an argument in court during a hearing.

Reasons to file a motion to dismiss

Filing a motion to dismiss is usually based on procedural issues in the case instead of the case merits. The most common reasons include:

  • The statute of limitations expired.
  • The court doesn't have jurisdiction over the case or the material of the case.
  • The location where the lawsuit was filed is wrong.
  • The lawsuit wasn't legally served to you.
  • The plaintiff didn't name an essential party in the lawsuit or named the wrong person or entity.

One of the most common circumstances in which a motion to dismiss is filed is when you owe back rent. The landlord will file a lawsuit and claim that you owe a certain amount of money. There are some reasons why the case may not be valid. For example, you may have paid the landlord, but he doesn't have a record of all of your payments. You could provide proof of your payments with bank records and canceled checks. You could file a motion to dismiss the case if you have all the documentation to file with the court.

You also may file this motion because the plaintiff didn't state a claim that can be offered relief. For instance, in a car accident where they claim you were negligent, the plaintiff must demonstrate all elements of negligence. If the Complaint doesn't show that the plaintiff suffered damages, then you may file a motion to dismiss because the Complaint didn't contain that essential element.

Many people think that only the defendant may file a motion to dismiss. But a plaintiff can file the motion to dismiss the lawsuit before you file your Answer. After you file your Answer, both sides can agree and ask the judge to dismiss the case. In addition, the court can make its own decision to dismiss the case, but the term in this situation is Sua Sponte, not motion to dismiss.

Sometimes, the plaintiff may dismiss the case by offering a notice of dismissal to the judge or court. But this must be done before you answer the Complaint and alleged counterclaim.

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Steps to file a motion to dismiss

The key thing to remember when you file a motion to dismiss is there is a deadline to meet. You can find this and other essential rules in the civil procedure laws in your state or county. Generally, the Federal Rules of Civil Procedure contain laws that all states must adhere to during court procedures. For example, section 12b lists the following clauses that are often used as grounds to file a motion to dismiss:

  • 12b1: Lack of subject-matter jurisdiction
  • 12b2: Lack of personal jurisdiction
  • 12b3: Improper court venue
  • 12b4: Insufficient process
  • 12b5: Insufficient service of process
  • 12b6: Failure to state a claim that can grant relief
  • 12b7: Failure to use rule 19 to join a party

As you file your motion to dismiss, determine which of the above reasons to dismiss apply to your case. List each reason in your motion, and cite the appropriate state rule of civil procedure which you can accomplish with a simple online search.

Generally, these are the steps you take to file a motion to dismiss:

  1. The motion needs to be filed after you respond to the Complaint with an Answer.
  2. You need to file it with the proper court, and it must be served to the opposing party.
  3. The other side has the chance to respond to the motion to dismiss. The deadline for this response varies by state and is listed in each state's civil procedure rules.
  4. The judge will go over the motion and the other side's response. They will review the case facts and allegations in a way that favors the plaintiff.
  5. The judge will issue a ruling if the motion is granted. The case can be dismissed with or without prejudice. When a case is dismissed with prejudice, it means that the plaintiff (person who started the lawsuit) cannot file the same claim into that court again in the future.

Now, let's take a look at another example.

Example: Mark received a lawsuit letter from Capital One for an auto loan debt of $1,845 he had defaulted from paying. He immediately went online to check if he had any chance of getting the case dismissed. Mark found out that he could use the Texas statute of limitations as his reason for requesting dismissal. He responded to the lawsuit first with an Answer. Afterward, he filed the motion to dismiss, alleging that the debt was over four years old. Capital one responded to the motion to dismiss and attached records showing that the last payment Mark made was three years and six months prior. Mark had miscalculated the dates and thought the date he started paying the debt was the correct one to use to calculate the age of the debt. The judge ruled in favor of Capital One, and the case was scheduled to proceed.


The following video gives tips on how to draft your Answer, hence improving your chances of winning the case if your motion to dismiss is denied.

How SoloSuit can help

SoloSuit helps you respond with an Answer before filing your motion to dismiss. This document is acceptable in all 50 states. Your creditor might even withdraw the case if you include compelling affirmative defenses.

We have other documents that can also help you respond to debt collectors at every stage of communication. For instance, our Debt Validation Letter requests your collector to confirm that the debt is rightfully yours. Our Motion to Compel Arbitration asks the creditor to follow the arbitration clause in your signed agreement and settle the case outside of court. Lastly, our Debt Lawsuit Settlement Letter allows you to strike a settlement deal with your creditors or debt collectors and avoid having to go to trial.

Do not lose hope if your motion to dismiss is denied. We have various resources to help you win your debt collection case. Start the legal process with us.

What is SoloSuit?

SoloSuit makes it easy to fight debt collectors.

You can use SoloSuit to respond to a debt lawsuit, to send letters to collectors, and even to settle a debt.

SoloSuit's Answer service is a step-by-step web-app that asks you all the necessary questions to complete your Answer. Upon completion, we'll have an attorney review your document and we'll file it for you.

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"First time getting sued by a debt collector and I was searching all over YouTube and ran across SoloSuit, so I decided to buy their services with their attorney reviewed documentation which cost extra but it was well worth it! SoloSuit sent the documentation to the parties and to the court which saved me time from having to go to court and in a few weeks the case got dismissed!" – James


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