Motion to Dismiss: Grounds, Timing and What Happens Next

Last updated: 6 November 2026. Rule text is from Cornell’s Legal Information Institute and the Ministry of Justice site. State courts and individual federal judges have their own rules, so check those before you file.

Short answer: A motion to dismiss asks a court to end some or all of a case before any answer is filed, usually under Federal Rule of Civil Procedure 12(b). A defendant normally has 21 days after service, or 60 days after a waiver request was sent. The court assumes the pleaded facts are true and asks whether the claim is plausible, not whether it will win.

Key takeaways

• File before you answer, and put every available Rule 12 defence in the first motion. Personal jurisdiction, venue, process and service defences are lost if you leave them out.
• Serving a Rule 12 motion pauses the answer deadline. If the court denies it, the answer is normally due 14 days after notice of the ruling.
• After Twombly and Iqbal, the court sets aside legal conclusions and tests the remaining facts for plausibility.
• A plaintiff can usually amend once without permission within 21 days of a Rule 12(b) motion. A dismissal for failure to state a claim counts as a merits ruling unless the order says otherwise.

What is a motion to dismiss and when should you file one?

In federal court a motion to dismiss rests on Rule 12(b), which lets a party raise seven defences by motion. The motion must be made before pleading if a responsive pleading is allowed. On a docket it often appears as MTD, one of the court docket abbreviations worth knowing.

A motion earns its cost when winning changes the case: no jurisdiction, a claim the law does not recognise, or a time bar visible on the face of the complaint. It is weaker when the plaintiff can fix the problem by adding facts, because your motion then becomes a guide to a better complaint.

Older figures support that caution. A Federal Judicial Center study from November 2011 found that 35% of the 2010 orders it reviewed granted motions with leave to amend at least some claims, up from 21% in 2006. Plaintiffs filed amended complaints in 64% of cases where leave was given. The authors warned that some orders were missing from their data.

What are the grounds for a motion to dismiss under Rule 12(b)?

A 12(b)(1) motion comes in two forms. As the Ninth Circuit put it in Safe Air for Everyone v. Meyer (2004), a facial attack says the allegations are insufficient on their face, while a factual attack disputes the truth of allegations that would otherwise invoke jurisdiction. Related tools include Rule 12(e) for a more definite statement, 12(f) to strike material and 12(c) for judgment on the pleadings.

How long do you have to file a motion to dismiss?

The motion must come before the answer, so the answer deadline sets the limit.

Partial motions need care. The rule does not say whether a motion against some claims pauses the answer on the rest. A 2020 Butler Snow note says limited authority favours a full pause, but at least one court disagreed. Get a stipulation or order.

What do Twombly and Iqbal require?

Rule 8(a)(2) asks for a short and plain statement showing the pleader is entitled to relief. In Bell Atlantic v. Twombly (2007) the Supreme Court said the old “no set of facts” phrase had earned its retirement. A complaint now needs enough facts to state a claim that is plausible on its face, and labels, conclusions and a formulaic recital of the elements will not do.

Ashcroft v. Iqbal (2009) confirmed that this applies to all civil actions and gave courts two working principles:

1. Legal conclusions get no presumption of truth. Threadbare recitals of elements, backed by conclusory statements, do not suffice.
2. The facts that remain must state a plausible claim. That is a context-specific task in which the court draws on judicial experience and common sense.

Plausibility is not probability. It sits above a sheer possibility of wrongdoing, and Twombly says it calls for enough fact to raise a reasonable expectation that discovery will reveal evidence. Fraud is pleaded to a higher standard, with particularity under Rule 9(b).

How do you draft a motion to dismiss?

1. Start with the local rules and standing orders. In the Central District of California, for example, Local Rule 7-3 requires counsel to confer at least 7 days before filing.
2. Bring every Rule 12 defence together. Rule 12(g)(2) bars a second Rule 12 motion raising a defence that was available the first time, with limited exceptions.
3. State the facts from the complaint. Cite paragraph numbers and save your own version for later.
4. Work claim by claim, element by element. Lead with jurisdiction, then identify the conclusions, show what facts remain and apply the law.
5. Stay within the pleadings. Under Rule 12(d), outside material that the court does not exclude turns the motion into one for summary judgment. Tellabs v. Makor (2007) allows documents incorporated by reference and matters open to judicial notice, but in Khoja v. Orexigen (2018) the Ninth Circuit warned against overusing both.
6. Say what you want. If you seek dismissal with prejudice, explain why amendment is futile.
7. Plan for discovery. Rule 12 has no automatic stay. Rule 26(d)(1) generally blocks discovery until the Rule 26(f) conference, and 15 U.S.C. 78u-4(b)(3)(B) stays it in securities cases. Elsewhere you ask for a stay. A pending motion gives no reason to relax a legal hold, and third parties can still receive a subpoena once discovery opens.

How do you oppose a motion to dismiss?

1. Diary the local response date, then decide whether to amend. Under Rule 15(a)(1)(B) you may amend once as a matter of course within 21 days after service of a Rule 12(b) motion. If you can fill the gap the motion exposes, this usually beats defending the weak version.
2. Argue from your facts. Point to specific allegations and the inferences they support. If the key evidence is in the defendant’s hands, say so.
3. Object to outside material. Ask the court to exclude it under Rule 12(d), or to let you respond if it converts the motion.
4. Ask for leave to amend in the alternative. After the free amendment, Rule 15(a)(2) requires consent or leave, and the court should freely give leave when justice so requires. Foman v. Davis (1962) lists the reasons to refuse: undue delay, bad faith, repeated failure to cure, undue prejudice and futility. Tell the court what you would add.
5. Consider leaving voluntarily. Rule 41(a)(1)(A)(i) lets a plaintiff dismiss by notice until the other side serves an answer or a summary judgment motion. A motion to dismiss is neither. A first dismissal is without prejudice unless it says otherwise, but a second can count as a ruling on the merits. Our guide on how to sue someone covers the earlier stages.

Which defences are waived under Rule 12(h)?

• Waived if not raised early. Personal jurisdiction, venue, process and service are lost if left out of a first Rule 12 motion. If you file no motion, you must put them in your answer or in an amendment allowed as of course under Rule 15(a)(1).
• Preserved for later. Failure to state a claim, failure to join a Rule 19 party and failure to state a legal defence may be raised in a pleading, by Rule 12(c) motion or at trial.
• Never waived. If the court finds at any time that it lacks subject-matter jurisdiction, it must dismiss.

The trap is the partial first motion. A defendant who files only a 12(b)(6) motion gives up any available service or personal jurisdiction objection, and the answer cannot revive it.

What happens next, and what do with and without prejudice mean?

Under Rule 41(b), a dismissal counts as an adjudication on the merits unless the order states otherwise, except one for lack of jurisdiction, improper venue or failure to join a Rule 19 party. The Supreme Court called a 12(b)(6) dismissal a judgment on the merits in Federated Department Stores v. Moitie (1981). Semtek v. Lockheed Martin (2001) adds a limit: that language bars refiling in the same court, but it does not settle the effect in other courts.

“Without prejudice” is not always safe. In Elmore v. Henderson (2000) the Seventh Circuit said a suit dismissed without prejudice is treated for limitation purposes as if it had never been filed, so a dismissal after the period has run can work like one with prejudice. Equitable tolling or a state savings rule may help. For wrong venue, 28 U.S.C. 1406(a) also allows transfer in the interest of justice.

Denials are rarely appealable at once, because 28 U.S.C. 1291 covers final decisions. Qualified immunity is the familiar exception, as in Iqbal itself. For more of the Court’s key rulings, see our list of landmark Supreme Court cases.

How does this compare with strike-out and summary judgment in England and Wales?

There is no single equivalent. A defendant in England and Wales has two main tools, and jurisdiction disputes go under Civil Procedure Rules (CPR) Part 11, within 14 days after an acknowledgment of service.

A claimant can use the English test against a defence too. Judges ask whether a case has a realistic rather than fanciful prospect of success, a phrase from Swain v Hillman repeated in Easyair v Opal Telecom. Older cases cite the grounds as rule 24.2, because Part 24 has been renumbered. Scotland and Northern Ireland have separate rules.

Frequently asked questions

What is the deadline to file a motion to dismiss in federal court?

Usually 21 days after service, or 60 days after a waiver request was sent. The United States and its agencies get 60 days. Removed cases follow Rule 81(c)(2). Check for any order or local rule that changes the date.

What is the difference between a motion to dismiss and summary judgment?

A motion to dismiss tests the complaint and assumes its facts are true. Summary judgment under Rule 56 looks at evidence and asks whether there is a genuine dispute of material fact.

Can you file a motion to dismiss after answering?

Not under Rule 12(b), which requires the motion before pleading. But Rule 12(h)(2) lets you raise failure to state a claim by Rule 12(c) motion or at trial, and lack of subject-matter jurisdiction can be raised at any time.

Does a motion to dismiss stop discovery?

Not automatically, except in securities cases under 15 U.S.C. 78u-4(b)(3)(B). Discovery generally cannot start until the Rule 26(f) conference. After that you need a court order or agreement to pause it.

What does dismissed without prejudice mean?

The ruling does not bar the plaintiff from bringing the claim again. In practice the limitation period may still end it, because courts can treat the first suit as if it was never filed.

Can you appeal a motion to dismiss ruling?

A final dismissal can be appealed, normally within 30 days of entry, or 60 if the United States is a party. A denial usually cannot be appealed until the case ends.

This article is general information as of 6 November 2026 and is not legal advice. Check the current rules for your court, or speak to a qualified lawyer, before filing or responding.

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