How to Write a Motion to Dismiss: Template + Step by Step Guide
Sahar Syed··7 min read·LitigationIf you want to learn how to write a motion to dismiss, you are likely looking for a simple, reliable guide that explains the format, common grounds for dismissal, legal standard, and filing steps. This article gives you all of that, plus a practical template you can adapt to your case.
What is a motion to dismiss?
A motion to dismiss is a formal request asking the court to throw out all or part of a complaint before the case moves deeper into litigation. In simple terms, the moving party argues that the case should not continue because the claim is legally defective, the court lacks authority, or some procedural rule has not been satisfied.
This is one of the most important early tools in civil procedure. A well written motion can narrow the case, save time, lower costs, and sometimes end the lawsuit before expensive discovery begins. A weak motion, however, can waste time and damage credibility.
That is why lawyers need to understand both the substance and the structure of the motion. The court is not looking for drama. It is looking for a clear legal argument, proper support, and a clean explanation of why the complaint fails under the applicable court rules.
When should you file a motion to dismiss?
A motion to dismiss is usually filed early in the case, often before the answer. In many courts, it is one of the first responsive steps a defendant can take after being served with the complaint. Timing matters. If the motion is filed too late, the court may reject it or treat some defenses as waived.
You should always check:
the applicable federal rules of civil procedure or state rules
local court rules
filing deadlines
service requirements
whether a meet and confer is required
whether the judge has standing orders on motion practice
The exact timing depends on the court and the type of case. Still, the general idea is the same. If there is a strong legal defect at the pleading stage, raise it early and raise it clearly.
Common grounds for dismissal
A strong guide on how to write a motion to dismiss must explain the most common grounds for dismissal. This is where the motion gets its force. If the legal ground is weak, the motion will usually fail no matter how polished the writing looks.
Failure to state a claim
This is one of the most common grounds. Under Rule 12(b)(6) in federal court, the defendant argues that even if the plaintiff’s factual allegations are accepted as true, the complaint still does not state a legally valid claim for relief.
This is where the court looks at:
whether the complaint identifies a valid cause of action
whether the plaintiff alleges enough facts
whether those facts, taken as true, make the claim plausible
whether the complaint goes beyond legal conclusions and labels
This is where the Twombly Iqbal standard often comes into play. Courts generally require more than bare conclusions. The plaintiff must allege enough factual content to make the claim plausible, not merely possible.
Lack of subject matter jurisdiction
If the court does not have authority over the type of dispute, the case cannot stay there. A motion based on lack of subject matter jurisdiction argues that the court lacks the power to hear the matter at all.
This can arise when:
there is no federal question
diversity is missing
the plaintiff lacks a jurisdictional basis
the claim belongs in another forum
Jurisdiction is a threshold issue. If the court lacks subject matter jurisdiction, it cannot move forward.
Lack of personal jurisdiction
A motion to dismiss for lack of personal jurisdiction argues that the court lacks authority over the defendant. This usually comes up when the defendant’s contacts with the forum state are weak or legally insufficient.
In that setting, the motion often focuses on:
where the defendant resides
where the relevant events happened
whether the defendant purposefully directed conduct at the forum
whether exercising jurisdiction would be fair
A lawyer drafting this section must be precise. Personal jurisdiction arguments can turn on both facts and law.
Insufficient service of process
A case can be dismissed when the plaintiff fails to serve the defendant properly. Insufficient service of process is a classic procedural defense. If service was defective, late, or incomplete, the defendant may ask the court to dismiss or quash service.
This issue often overlaps with a motion to quash service, depending on the court and the relief requested.
Improper venue
A motion based on improper venue argues that the case was filed in the wrong court or geographic location. Sometimes dismissal is requested. Other times transfer may be more likely. Still, venue remains an important early defense when the plaintiff has chosen the wrong forum.
Statute of limitations
If the claim was filed too late, the defendant may raise the statute of limitations as a dismissal ground. This can be powerful when the defect appears on the face of the complaint.
Failure to join a necessary party
A motion may also argue failure to join a necessary party when the case cannot fairly proceed without another person or entity whose interests are central to the dispute.
Res judicata and collateral estoppel
In some cases, the defendant may argue that the claim is barred by res judicata or collateral estoppel. These defenses usually involve prior litigation and may require careful explanation of the earlier case, the overlap of issues, and the legal effect of the prior judgment.
What the court looks for
When a judge reads a motion to dismiss, the court usually wants clear answers to a few basic questions:
What rule or doctrine supports dismissal?
What is the exact defect in the complaint?
Why does that defect matter legally?
What case law or statutory authority supports the argument?
Can the problem be fixed by amendment, or should dismissal be with prejudice?
A motion should not wander. It should lead the court through the issue step by step. The best motions do not try to say everything. They say the right things in the right order.
Basic structure of a motion to dismiss
A good motion to dismiss usually includes the following parts:
caption
notice of motion if required
introduction
statement of relevant facts or background
legal standard
argument section
conclusion
signature block
supporting memorandum, declaration, or exhibits if required
The exact format depends on the court. Some courts want a separate memorandum of points and authorities. Others allow a combined motion and brief. Local rules always control.
Motion to dismiss template
Below is a simple model you can adapt. It is not a substitute for local rules, but it gives you a strong starting structure.
Caption
[Name of Court]
[Case Name]
[Case Number]
DEFENDANT’S MOTION TO DISMISS
Introduction
Defendant respectfully moves this Court to dismiss the Complaint pursuant to [applicable rule, such as Rule 12(b)(6)] because the Complaint fails to state a claim upon which relief can be granted. As explained below, Plaintiff has not alleged sufficient facts to support a valid claim, and dismissal is therefore proper.
Background
Plaintiff filed the Complaint on [date]. The Complaint alleges that [brief summary of allegations]. However, even if the Court accepts the factual allegations as true for purposes of this motion, the pleading remains legally insufficient.
Legal Standard
A complaint must contain sufficient factual matter to state a plausible claim for relief. Mere conclusions, labels, or formulaic recitations of the elements are not enough. Dismissal is proper where the complaint fails to plead facts showing entitlement to relief under the applicable law.
Argument
I. The Complaint Fails to State a Claim
Plaintiff’s complaint does not allege facts sufficient to support each required element of the claim. Instead, it relies on conclusory assertions without factual support. Because the pleading does not satisfy the governing plausibility standard, dismissal is warranted.
II. [Add another ground if applicable]
For example:
The Court lacks subject matter jurisdiction because [state reason].
The action is barred by the statute of limitations because [state reason].
Venue is improper because [state reason].
Conclusion
For the foregoing reasons, Defendant respectfully requests that the Court dismiss the Complaint [with prejudice / without prejudice], and grant such further relief as the Court deems proper.
Step by step guide to writing a motion to dismiss
Now let’s move from the template to the actual writing process. If you want to know how to write a motion to dismiss well, follow these steps in order.
Step 1. Read the complaint carefully
Do not draft anything until you truly understand the complaint. Read it slowly. Then read it again.
Look for:
each alleged claim
each factual allegation
what relief is requested
missing elements
contradictions
dates that matter
jurisdictional allegations
service allegations
venue allegations
Mark the weak points. A persuasive motion starts with a careful reading of the complaint, not with copying boilerplate.
Step 2. Identify the strongest ground
Do not throw every possible defense into the motion unless each one is solid. Judges often respond better to focused, strong grounds than to a long list of weak ones.
Ask yourself:
Is this really a failure to state a claim case?
Is there a serious lack of jurisdiction issue?
Was service defective?
Is the claim barred by the statute of limitations?
Is the case precluded by res judicata or collateral estoppel?
Pick the strongest path first.
Step 3. Research the governing rule
Before you write, confirm the exact procedural rule and standard. In federal court, that may mean Rule 12(b) defenses. In state court, the terms may differ. Some states use concepts like demurrer or similar pleading challenges.
Check:
the controlling procedural rule
local rules
judge-specific motion requirements
page limits
whether a separate memorandum is required
hearing notice rules
Step 4. Find strong supporting authority
A persuasive motion must be built on authority. That means real case law, not loose general statements.
Look for:
binding appellate cases
controlling statutes
procedural rules
persuasive secondary authorities if helpful
Your argument should connect the complaint’s specific defect to a clear legal rule.
Step 5. Build the outline first
Before writing full paragraphs, outline the motion.
A simple outline might look like this:
Introduction
Short background
Legal standard
Ground One
Ground Two if needed
Conclusion
Under each ground, list:
the rule
the plaintiff’s missing allegations
the key cases
the remedy sought
This makes the writing cleaner.
Step 6. Write a clear introduction
Your introduction should tell the court exactly what the motion is about and why dismissal is appropriate.
Good introductions are short. They do not tell the whole story. They frame the issue and point the court to the legal defect.
Step 7. Explain the legal standard simply
Do not bury the court in unnecessary theory. State the legal standard clearly and connect it to the motion.
If you are moving under Rule 12(b)(6), explain the plausibility standard and the requirement for sufficient factual allegations. If you are raising jurisdiction, explain the court’s authority standard.
Step 8. Write the argument with discipline
This is the heart of the motion.
A strong argument section usually follows a simple pattern:
state the rule
apply the rule to the complaint
show the defect
support the point with authority
explain why dismissal follows
This is where many lawyers lose force by becoming too abstract. Judges want to see how the complaint fails, not just broad legal talk.
Step 9. Include a clean conclusion
Always include a conclusion that says exactly what relief you want.
Do not leave the court guessing.
Say whether you want:
dismissal with prejudice
dismissal without prejudice
dismissal of the entire complaint
dismissal of specific claims only
other related relief
Step 10. Review formatting and filing rules
Before filing, check:
caption format
page limits
font and spacing
signature requirements
exhibit rules
memorandum rules
hearing notice rules
service rules
filing deadline
A strong motion can still be damaged by sloppy filing.
How to make the motion persuasive
A lot of lawyers know the law but still write weak motions. Why? Because they forget persuasion.
Start with the strongest issue
Lead with your best ground. Do not hide it in the middle.
Use plain, direct language
Judges do not need inflated prose. They need clear logic.
Tie every argument to the complaint
A motion to dismiss is about the pleading. Keep bringing the court back to what the complaint says, and what it fails to say.
Support every major point
Use case law and statutory authority to support each serious argument.
Stay professional
Do not turn the motion into a personal attack. A calm, precise argument usually carries more weight than angry writing.
Common mistakes to avoid
If you are writing on how to write a motion to dismiss, you should also know what not to do.
Do not argue facts that belong later
A motion to dismiss is usually not the place for broad factual disputes unless jurisdictional or similar procedural issues allow it. Stay focused on the pleading stage.
Do not overuse weak grounds
If one argument is strong and three are weak, the weak ones can dilute the strong one.
Do not forget the local rules
Some lawyers write a solid motion but lose ground because they ignore local procedure.
Do not confuse conclusions with facts
If you are arguing that the complaint is defective, show exactly why the allegations are too conclusory or too thin.
Do not skip the requested relief
Always tell the court what you want the ruling to be.
What happens after filing?
After filing and serving the motion, the plaintiff usually has a chance to respond. That response may argue that the complaint is sufficient, that amendment should be allowed, or that the defense lacks merit.
Then the moving party may file a reply, depending on the rules.
Next comes the motion hearing in many courts, though some motions are decided on the papers.
At the hearing, be prepared to address:
the strongest legal standard
the complaint’s weakest point
amendment issues
whether dismissal should be with or without prejudice
Then the court decides. The motion may be:
granted
denied
granted in part and denied in part
granted with leave to amend
granted without leave to amend
FAQs
What is a motion to dismiss?
A motion to dismiss is a request asking the court to end all or part of a case because the complaint is legally defective, the court lacks jurisdiction, service was improper, or another early defense applies.
What is the most common ground for dismissal?
One of the most common grounds is failure to state a claim under Rule 12(b)(6) or the state equivalent.
Can a motion to dismiss use evidence?
Usually, a motion to dismiss focuses on the complaint and the legal sufficiency of the pleadings, though some jurisdictional motions may involve extra materials depending on the issue and the court’s rules.
What is the difference between dismissal with prejudice and without prejudice?
Dismissal with prejudice means the claim cannot be brought again. Dismissal without prejudice means the plaintiff may be allowed to refile or amend.
Do I need a memorandum of points and authorities?
Many courts require or strongly expect a separate supporting memorandum. Always check the local rules and judge’s requirements.
What should a motion to dismiss include?
It should usually include the caption, introduction, legal standard, argument, conclusion, and any required supporting memorandum, declaration, or exhibits.
Conclusion
If you want to know how to write a motion to dismiss, the answer is simple in principle but careful in practice. Start by reading the complaint closely. Identify the best grounds for dismissal. Research the governing rule. Build a clean argument with case law, court rules, and a focused explanation of why the complaint fails. Then file it properly and be ready for the motion hearing.
A strong motion to dismiss does not try to say everything. It says the right things clearly, supports them with law, and gives the court a direct reason to grant relief.
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