How to Write a Motion to Dismiss: Ultimate Guide

Publish date

Jul 16, 2025

AI summary

To write an effective motion to dismiss, identify legal flaws in the plaintiff's complaint, such as failure to state a claim or lack of jurisdiction. Structure the motion clearly, using a persuasive argument grounded in relevant case law, and ensure compliance with local court rules. Anticipate counter-arguments and specify whether dismissal should be with or without prejudice.

Language

Before you even think about writing a motion to dismiss, you need to have a clear, strategic reason for doing so. This isn't just a procedural step; it's a powerful move that challenges a lawsuit at its very foundation, often before the expensive discovery phase even begins. Your goal is to find a critical legal flaw in the plaintiff's complaint, back it up with solid case law, and formally argue why the case has no business proceeding.

Knowing When to File a Motion to Dismiss

The first and most critical decision is whether filing a motion to dismiss is the right call. Let's be clear: this motion is not your chance to tell your side of the story or argue about who did what. It's a precise, laser-focused attack on the legal sufficiency of the complaint itself.

You're essentially standing up and telling the court, "Your Honor, even if every single thing the plaintiff says in their complaint is true, they still haven't stated a valid legal case against me." That's a high bar to clear. For the purpose of this motion, the judge must assume all the plaintiff's factual allegations are 100% true. Your job is to show why, even with those facts, the lawsuit is legally dead on arrival.

Identifying Grounds for Dismissal

The entire strength of your motion rests on the legal grounds you choose. While the specifics can differ between jurisdictions, some of the most common—and effective—reasons to seek dismissal include:

Failure to State a Claim: This is the big one. You're arguing that the complaint, even when you read it in the most generous way possible, simply doesn't allege all the required parts of a valid legal claim. For instance, if someone sues for breach of contract but their complaint never actually claims a valid contract existed in the first place, their claim is legally defective.

Lack of Jurisdiction: This means the court doesn't have the authority to hear the case. It could be a lack of subject-matter jurisdiction (the court isn't empowered to rule on this kind of legal issue) or a lack of personal jurisdiction (the court has no power over you as the defendant, usually because you don't have sufficient ties to the state).

Improper Venue: This is a simpler argument: the lawsuit was filed in the wrong courthouse. Maybe it's the wrong county or federal district.

Statute of Limitations: Every type of legal claim has a strict deadline for when it must be filed. If the plaintiff waited too long, their case is barred, and you can get it thrown out on these grounds.

Digging into the complaint to spot these weaknesses is where the real work begins. It demands a meticulous breakdown of each claim and a firm grasp of the relevant procedural rules.

The Strategic Calculation

Just because you can file a motion to dismiss doesn't always mean you should. It can be an expensive, time-consuming process. Worse, a failed motion can inadvertently teach the other side about the weak spots in their case, giving them a roadmap to fix it with an amended complaint.

A winning motion can end a lawsuit before you rack up significant costs, saving everyone time, money, and stress. But a losing one can send a signal to the judge that the case has merit, putting you on the back foot from the get-go.

You have to weigh the odds of success against the potential blowback. If you have a slam-dunk argument—like a clearly expired statute of limitations—the motion is almost always the right move. But if your argument is more nuanced, you might be better off saving those resources for a motion for summary judgment later on.

This initial analysis is everything. A careful review of legal documents is paramount. For anyone looking to sharpen their document analysis skills, there are helpful https://pdf.ai/tutorials that show you how to efficiently interact with and pull key information from legal filings. This isn't just about going through the motions; it's about making a calculated decision that will set the tone for the entire litigation.

Building Your Case Before You Start Writing

A powerful motion to dismiss isn’t won with eloquent writing alone. It’s won long before you type the first word. The real victory lies in the meticulous prep work—the legal deep dive that turns a promising theory into a case-ending argument.

This entire process starts and ends with one document: the plaintiff's complaint. Your first job is to dissect it, not as a single story, but as a collection of individual claims, or "causes of action." For every single claim—whether it's negligence, breach of contract, or something else—you have to break it down to its absolute core.

Deconstructing the Plaintiff's Claims

Think of each legal claim like a recipe. It has a specific list of required ingredients, which we call elements. If the plaintiff’s complaint forgets to include even one of these essential ingredients for a claim, that claim is legally defective and ripe for dismissal.

Let’s take a standard negligence claim as an example. The plaintiff must allege facts to support four things:

A duty of care was owed by the defendant.

The defendant breached that duty.

This breach caused the plaintiff's injury.

The plaintiff suffered actual damages.

Your mission is to read the complaint with a critical eye and ask, "Did the plaintiff actually state facts that support each and every one of these four elements?" Maybe they went on for pages about a supposed breach of duty but completely failed to mention any resulting damages. Bingo. You've just found a fatal weakness. Properly identifying these gaps is crucial, and it helps to apply effective tips for writing a problem statement to clearly articulate the deficiencies you've uncovered.

Conducting Targeted Legal Research

Once you've spotted potential flaws in the complaint, your next move is to find the legal firepower to back up your attack. This means diving headfirst into targeted research, hunting for statutes and—more importantly—case law from your specific jurisdiction that says, "Yes, this claim should be dismissed for this exact reason."

It’s not enough to find a case that was dismissed for some vague, general reason. You need a case that was dismissed for the very same reason you're arguing. This kind of laser-focused research isn't optional. Modern tools can certainly speed up the process; for example, a legal contract analyzer can help you tear through dense case law documents to pinpoint key language and precedents much faster.

A common mistake is to rely on a general understanding of the law. A judge won't be persuaded by what you think the law is; they will be persuaded by what controlling case law says it is. Your motion must be grounded in specific, binding legal authority.

The legal landscape is always shifting, and major court decisions have made this initial analysis more critical than ever. The Supreme Court's decision in Ashcroft v. Iqbal (2009), for instance, dramatically raised the pleading standards in federal courts. Research from the Federal Judicial Center revealed that after this decision, the likelihood of a motion to dismiss being filed effectively doubled. This shows just how much procedural changes can impact litigation strategy, making your pre-writing prep absolutely essential.

Master Your Local Court Rules

Finally, and this is a big one, never underestimate the power of local court rules. You could craft the most brilliant, airtight legal argument in history, but if it's in the wrong font, a page over the limit, or missing a required certificate of service, a judge can—and often will—disregard it completely.

These rules aren't just friendly suggestions; they are mandatory requirements. Before you write anything, find the specific rules of civil procedure and any local rules for your court. Look for detailed requirements on everything from formatting and page limits to filing procedures and deadlines. A simple procedural slip-up can torpedo your entire effort, making this final prep step just as vital as your legal research.

Structuring Your Motion for Maximum Persuasion

The way you structure your motion can make or break your argument. Let's be honest: judges are busy. A disorganized, meandering brief forces them to work harder to connect the dots, and that's the last thing you want.

Think of your motion as a roadmap. Your job is to create a clear, compelling path that leads the judge directly to one conclusion: dismissal is the only legally sound option. A persuasive motion isn't just a jumble of case law and facts; it’s a carefully constructed narrative. Each section has to build on the last, creating a seamless argument that's easy for the judge to follow, understand, and, ideally, adopt in their own ruling.

This infographic breaks down the workflow you should follow before you even start writing and structuring the motion itself.

As you can see, a solid structure always starts with identifying your legal grounds and gathering your support. Only then can you start organizing your thoughts into a powerful document.

The Essential Components of Your Motion

While you always need to check your local court rules for specific formatting requirements, most successful motions to dismiss share a common, universally recognized structure. Each piece plays a critical role in building your case for dismissal.

To help you visualize this, here's a quick breakdown of the key sections and what each one is meant to accomplish.

Key Sections of a Motion to Dismiss

Section of Motion	Core Purpose	Key Content to Include
Caption & Title	Identification	Court name, case number, parties. A clear, direct title like "Defendant's Motion to Dismiss."
Introduction	Executive Summary	Who you are, what you're asking for (dismissal), and a one-sentence summary of why.
Statement of Facts	Framing the Narrative	A neutral summary of the facts as alleged in the plaintiff’s complaint, highlighting their deficiencies.
Legal Standard	Setting the Rules	Citing the relevant procedural rule (e.g., Rule 12(b)(6)) and controlling case law on the standard for dismissal.
Argument	Applying Law to Facts	Applying the legal standard to the alleged facts to prove why each claim is legally insufficient.
Conclusion	Closing the Loop	A brief, one-paragraph summary of your arguments and a clear restatement of the relief you are requesting.

Getting these fundamental building blocks in the right order is the first step toward a well-reasoned and persuasive motion.

The Core of Your Argument

With the basic structure in place, it's time to build the heart of your motion. This is where you'll connect the dots for the judge, showing exactly how the facts alleged by the plaintiff fail to meet the legal requirements for their claims.

Statement of Facts

This section is critical and, frankly, often mishandled. Your goal here isn't to tell your side of the story or introduce new evidence. Instead, you're summarizing the key facts as alleged in the plaintiff's complaint.

You want to present these facts neutrally and concisely, but in a way that subtly telegraphs the weaknesses you're about to attack in your argument. Stick strictly to the allegations in the complaint and any documents it incorporates by reference. No more, no less.

Pro Tip: Your tone here should be purely objective. By faithfully reciting the plaintiff's own allegations, you build immense credibility. Later, when you show how those very facts don't support a legal claim, your argument hits with much greater force.

The Legal Standard

Before you can argue that the plaintiff’s complaint is deficient, you have to tell the judge what legal test they're supposed to use. This section is where you lay out the governing law.

You’ll need to cite the relevant rule of civil procedure (like Federal Rule of Civil Procedure 12(b)(6)) and the controlling case law from your jurisdiction that explains the standard for granting a motion to dismiss. For example, this is where you’ll state that the court must accept all factual allegations as true and draw all reasonable inferences in the plaintiff’s favor. Setting this standard up front demonstrates to the court that you understand the high bar you must clear and are prepared to do so.

The Argument Section

This is where you make your case. The Argument is the engine of your motion, applying the legal standard you just outlined to the facts from the complaint to show why the claims fail.

Use clear, descriptive headings for each distinct ground for dismissal. Something like, "I. The Complaint Fails to State a Claim for Breach of Contract Because It Does Not Allege Consideration."

Under each heading, you'll methodically walk the court through your reasoning. You'll take the facts from the complaint, marry them to the legal elements of the claim, and demonstrate precisely where the plaintiff falls short. A well-organized argument makes it incredibly easy for the judge to follow your logic—and, hopefully, use it as a blueprint for their own order dismissing the case.

Crafting a Compelling Legal Argument

This is where the real work begins—and where many motions are won or lost. A powerful legal argument isn't just a string of case citations. It's the art of weaving those legal principles into the specific, and often messy, facts the plaintiff has alleged in their own complaint.

Your mission is to connect the law to their facts so tightly that the judge is led to one inescapable conclusion: dismissal. Think of it as telling a story, but one governed by very strict rules. You're not just telling the court what the law says; you're showing them why it demands a particular result right here, right now, in this case.

Using Frameworks to Build Your Argument

To build an argument that feels logical and airtight, many of us fall back on a classic framework: IRAC. It stands for Issue, Rule, Application, and Conclusion. It’s a tried-and-true method for keeping your thoughts organized and ensuring you've covered all your bases for each claim you're attacking.

Let’s break it down:

Issue: What's the specific legal question the court has to decide? (e.g., "Has the plaintiff actually alleged the element of consideration for their breach of contract claim?")

Rule: What's the governing law for that issue? (e.g., "In this jurisdiction, a valid contract demands an offer, acceptance, and consideration.")

Application: Here's the core of your argument. How does that rule apply to the facts laid out in the complaint? This is where you connect the dots for the judge.

Conclusion: What's the only logical outcome when you apply that rule to those facts? (e.g., "Because the complaint fails to allege any consideration, it cannot state a valid claim for breach of contract.")

This methodical approach stops you from just jumping to conclusions. It forces you to construct your argument brick by brick, making it far more persuasive and much harder for your opponent to tear down.

The real magic happens in the 'Application' step. It’s not enough to vaguely state, "The plaintiff didn't plead damages." You have to be surgical. Say something like, "The law requires a showing of actual damages, and a close review of paragraphs 15-20 of the complaint—the only paragraphs that even mention harm—reveals no factual allegation of a quantifiable loss."

That level of detail is what separates a motion that gets glossed over from one that gets granted.

The Power of Proactive Counter-Arguments

A truly great motion to dismiss does more than just present your case. It anticipates and dismantles the plaintiff's likely counter-arguments before they ever get the chance to write them in an opposition brief. Put on your opponent's hat for a moment. Read the complaint and think, "How will they try to get around this?"

For example, if you're arguing a claim is barred by the statute of limitations, you should fully expect them to argue that a "discovery rule" saves them. Don't wait. Address it head-on in your opening motion. Explain precisely why, even if the court were to apply the discovery rule, their claim is still untimely based on the facts they themselves have pleaded. This shows the judge you’ve considered every angle and makes your position look that much stronger.

This gets incredibly specific in certain areas of law. In securities fraud, for instance, the "scienter" requirement—pleading the defendant acted with intent to deceive—is a notorious battleground. One study of 80 cases found that motions targeting the scienter element succeeded about 53% of the time, and a staggering 94% of all motions to dismiss were granted at least in part. This just goes to show how effective it is to zero in on the most difficult-to-prove elements of a claim. You can read the full research about these findings to dig into the data yourself.

Arguing for Dismissal With or Without Prejudice

Finally, you need to be strategic about the type of dismissal you request. This isn't a minor detail; it has huge consequences.

Dismissal Without Prejudice: This is more of a temporary victory. The court agrees the complaint is deficient but gives the plaintiff another shot to fix the mistakes and file an amended complaint. This is the common result for curable defects, like simply forgetting to plead a key element of a claim.

Dismissal With Prejudice: This is the knockout punch. The court's dismissal is final, and the plaintiff is permanently barred from ever bringing that claim again. This outcome is reserved for incurable defects, like when a claim is obviously blown by the statute of limitations or when a plaintiff has already had multiple chances to get it right and has failed.

Your conclusion should always explicitly state which type of dismissal you're seeking and, crucially, why it’s the appropriate remedy here. If the defect is incurable, explain why, and argue forcefully that dismissal with prejudice is the only way to bring the litigation to a just and final end.

Finalizing, Filing, and Serving Your Motion

A brilliantly crafted argument can fall completely flat if the delivery is clumsy. The final steps—proofreading, filing, and serving—aren't just procedural hoops to jump through. Think of them as the final layer of quality control that shows your professionalism and respect for the court. A sloppy finish can torpedo your credibility and undo all the hard work you put into building your case.

Before you do anything else, you have to ruthlessly proofread your motion and every single supporting document. I've found that reading the entire thing out loud is a surprisingly effective trick. It forces you to slow down and helps you catch awkward phrasing, grammatical mistakes, and typos that your eyes might otherwise just glide over.

Preparing Companion Documents

Your motion almost never travels alone. It's usually part of a package that includes a few other key documents, and you need to prepare each one with the same meticulous attention to detail.

Notice of Motion: This is a simple but critical document. It officially tells the court and the opposing party that you're filing the motion and gives them the date and time of the hearing.

Proposed Order: This is a document you draft for the judge to sign. It should clearly state the relief you want—that the motion is granted and the case (or specific claims) is dismissed. Your goal is to make it as easy as possible for the judge to say yes.

Certificate of Service: This is a sworn statement confirming you've sent a copy of the motion and all related documents to the opposing party, following the court's rules to the letter.

Many of these documents, especially if you're representing yourself (pro se), will require your signature. It’s important to use a secure tool for this; our guide on how to sign a PDF document can walk you through adding a legally binding electronic signature.

Filing and Serving With Precision

Once your package is assembled and double-checked, it's time to file it with the court and serve it on your opponent. These days, most federal and many state courts require or strongly prefer electronic filing through a dedicated portal. Get familiar with the court's e-filing system well before your deadline to avoid any last-minute technical snafus.

Properly serving the other party is just as critical. "Service" is the formal process of delivering the documents to them. For proper service of your motion, especially if you're in the UK, understanding the process of hiring a process server can offer valuable insights to make sure your documents are delivered correctly and on time.

A noteworthy 2022 report from the Federal Judicial Center provides a valuable perspective on why these efforts matter. It found that approximately 20% to 25% of Rule 12(b)(6) motions to dismiss for failure to state a claim were fully granted, with another 10% to 15% granted in part. This means that a well-executed motion can have up to a 40% chance of achieving some level of dismissal, a significant opportunity to end litigation early. You can discover more insights about these findings on Expert Legal Outsourcing.

Taking care with these final steps ensures your motion to dismiss isn't just well-written, but is also presented to the court and opposing counsel in a procedurally perfect way.

Common Questions About Motions to Dismiss

Even with a solid grasp of the basics, a few key questions always seem to pop up when you're in the trenches, planning or drafting a motion to dismiss. It's one thing to know the theory, but another to navigate the practical realities.

Let's clear the air on some of the most frequent points of confusion. Getting these details right is critical because a motion to dismiss isn’t just a procedural step—it's a major strategic crossroad with very different potential outcomes.

Motion to Dismiss vs. Motion for Summary Judgment

One of the first things young litigators get mixed up is the difference between a motion to dismiss and a motion for summary judgment. It’s an easy mistake to make. Both are "dispositive" motions, meaning they can end a lawsuit before it ever sees a trial. But that's where the similarity ends. They serve entirely different purposes, are filed at different times, and rely on completely different information.

A motion to dismiss is an opening move, filed right after the plaintiff serves their complaint. Its focus is narrow and entirely legal. You're essentially telling the court, "Your Honor, even if we assume every single fact in the plaintiff's complaint is 100% true, they still haven't stated a valid legal claim." The court is only allowed to look at the complaint itself and any documents attached to it. No outside evidence, no "he said, she said."

On the other hand, a motion for summary judgment comes much later in the game, after discovery. By this point, both sides have exchanged documents, taken depositions, and gathered evidence. Now, you can present that evidence to the court and argue, "Your Honor, based on all the undisputed facts we've gathered, there's no need for a trial because the law is clearly on our side."

Here’s a table that breaks down the key distinctions between these two powerful motions.

Motion to Dismiss vs. Motion for Summary Judgment

Aspect	Motion to Dismiss	Motion for Summary Judgment
Timing	Filed early, in response to the complaint.	Filed later, after discovery.
Court Considers	Only the complaint and attached documents.	The entire record, including evidence from discovery (depositions, affidavits, etc.).
Core Question	Are the legal claims in the complaint valid on their face?	Are there any genuine disputes of material fact for a trial?
Purpose	To attack legal flaws in the initial pleading.	To show that the evidence gathered makes a trial unnecessary.

Understanding this distinction is fundamental. One attacks the story as it's written; the other attacks the evidence (or lack thereof) behind the story.

What Happens If My Motion to Dismiss Is Granted?

Getting your motion granted is a big win, but what it means for the case depends on two crucial words: "with prejudice" or "without prejudice."

Dismissal Without Prejudice: This is the most common result, especially for technical defects. The court agrees the complaint has flaws but gives the plaintiff another shot to fix them. They can file an "amended complaint." So, while you've won the battle, the war might not be over.

Dismissal With Prejudice: This is the knockout punch. A dismissal "with prejudice" is final and absolute. The plaintiff cannot refile the lawsuit or bring those claims against you ever again. This is usually reserved for fatal, incurable flaws, like suing long after the statute of limitations has run out.

What Happens If My Motion to Dismiss Is Denied?

A denial means the lawsuit moves forward. The judge has looked at the complaint and decided that, on its face, the plaintiff has stated a plausible enough claim to proceed.

This is far from a loss for your entire case. It just means you can't win on this specific, early-stage challenge. Now, you’ll be required to file an "Answer" to the complaint, formally responding to each allegation. The case then proceeds into the discovery phase.

This is where you can start building your factual defense. All the evidence, counter-arguments, and facts that contradict the plaintiff's story—the things you couldn't bring up in your motion to dismiss—can now be developed and used to support a motion for summary judgment down the road.

If you have more procedural questions, our extensive Frequently Asked Questions page offers more in-depth answers on a variety of legal topics to help you feel more prepared. Knowing these potential outcomes is key to managing expectations—both for yourself and your client—as you map out your litigation strategy.

At PDF.ai, we understand that legal work involves immense document analysis. Our AI-powered tool allows you to chat directly with your legal documents, from complaints to case law, helping you find critical information, pinpoint weaknesses, and draft more effective arguments in a fraction of the time. Transform your legal research process by visiting https://pdf.ai today.