A motion to dismiss or motion for dismissal is a motion made in a civil case, where one party asks the court to dismiss or “throw out” the case without reviewing all of the facts and legal arguments of the case. A motion to dismiss can be filed at any time, though it is usually a pretrial motion used by the defendant at the beginning of the proceedings.A motion to dismiss will allege that based on the facts and allegations contained in the complaint, as well as any exhibits that have been filed with the complaint, the claim is not valid. Therefore the claim should not proceed any further.A motion to dismiss might also be known as a “demurrer.” A demurrer is a written objection to a claim or claims in a complaint which alleges that even if all of the facts are true, there is no legal basis for the claim to proceed. Essentially the defendant makes the argument that the plaintiff has failed to state a claim for which relief can be granted, therefore it should be dismissed.

When Can a Motion to Dismiss be Filed?

A motion to dismiss can be filed at any time. They are usually filed by defendants early on in the lawsuit, before they have filed an answer. Often a motion to dismiss is alleging that the claim should not proceed because of an issue unrelated to the facts.

If the defendant answers the complaint they have waived their right to file a motion to dismiss based on the allegations in the complaint. It is important to check the rules for civil procedure in the jurisdiction where the lawsuit was filed to know how long you have to file a motion to dismiss after being served with a complaint.

A motion to dismiss can ask the court to throw out all or some of the claims contained in the complaint.