Motion to Dismiss: What It Is, When to File, and How to Respond

11 min • Court Procedures

A motion to dismiss is a request asking the court to throw out a case — or specific claims within it — usually before the defendant files an answer. Under Federal Rule of Civil Procedure 12(b), a party can move to dismiss for: lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficient process, insufficient service of process, failure to state a claim, and failure to join a necessary party.

The most common ground is Rule 12(b)(6) — "failure to state a claim upon which relief can be granted." This means that even if everything the plaintiff says is true, the law doesn't provide a remedy. The Supreme Court established the modern pleading standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), requiring complaints to allege "enough facts to state a claim to relief that is plausible on its face."

If you're the plaintiff facing a motion to dismiss, you have the right to file an opposition brief explaining why your complaint meets the legal standard. You can also amend your complaint once as a matter of course within 21 days after service of the motion to dismiss. If the court grants the motion with prejudice, the case is over. Without prejudice means you can fix the problems and refile.

Timing matters: Rule 12(b) motions must be made before pleading if a responsive pleading is allowed. Most defenses must be raised in the first responsive filing or they're waived. A motion to dismiss also tolls the time to answer: if the motion is denied, the defendant typically has 14 days to file an answer.

For self-represented litigants, responding to a motion to dismiss can be intimidating, but the key is addressing each ground the defendant raised. Don't just argue the facts — explain why your complaint meets the legal pleading standard. Cite cases that support your position. If needed, ask for leave to amend so you can fix any technical deficiencies.

Key Takeaways

• Rule 12(b) lists 7 grounds for dismissal — 12(b)(6) (failure to state a claim) is most common
• The Twombly/Iqbal standard requires 'plausible' factual allegations, not just legal conclusions
• Plaintiffs can amend once as a matter of course within 21 days of a motion to dismiss
• Dismissal with prejudice ends the case; without prejudice allows refiling
• Address each ground raised and explain why your complaint meets the legal standard

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