A motion to dismiss is one of the most powerful tools in a litigator's arsenal. When properly drafted, it can end a case before discovery even begins, saving your client significant time and expense. This guide covers everything you need to know about drafting an effective motion to dismiss.
Understanding the Grounds for Dismissal
Before drafting your motion, you need to identify the appropriate grounds under the Federal Rules of Civil Procedure (or your state's equivalent). The most common grounds include:
Rule 12(b)(1): Lack of Subject Matter Jurisdiction
This challenges the court's authority to hear the case. You might argue:
- The amount in controversy doesn't meet the threshold
- There's no diversity of citizenship
- The federal question alleged doesn't actually arise under federal law
Rule 12(b)(6): Failure to State a Claim
This is the most frequently used ground. You're arguing that even if everything in the complaint is true, the plaintiff hasn't alleged facts that would entitle them to relief.
Key tip: Focus on what's missing from the complaint rather than what you believe the facts actually are.
Rule 12(b)(2): Lack of Personal Jurisdiction
Challenge whether the court has power over the defendant. Consider:
- Minimum contacts with the forum state
- Whether the exercise of jurisdiction comports with due process
- Specific vs. general jurisdiction
Structuring Your Motion
A well-structured motion to dismiss typically follows this format:
1. Introduction
Start with a concise statement of what you're asking for and why. The judge should understand your core argument within the first paragraph.
Example:
Defendant respectfully moves to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The Complaint fails to allege any facts supporting the essential elements of a breach of contract claim, instead relying on conclusory statements and legal conclusions.
2. Statement of Facts
Present the relevant facts from the complaint. Remember:
- You must accept the plaintiff's well-pleaded facts as true
- Don't argue facts beyond the complaint
- Highlight gaps in the allegations
3. Legal Standard
Briefly state the applicable legal standard. For 12(b)(6) motions, cite Twombly and Iqbal for federal court, or your state's equivalent.
4. Argument
This is where you make your case. Organize by legal issue and:
- Lead with your strongest argument
- Use clear headings and subheadings
- Cite relevant case law
- Apply the law to the specific allegations
5. Conclusion
Restate what you're asking for and why the court should grant it.
Common Mistakes to Avoid
Arguing Facts Outside the Complaint
The motion to dismiss stage isn't the time for discovery disputes or competing factual narratives. Stick to what's in the four corners of the complaint.
Ignoring Well-Pleaded Facts
You can't simply deny the plaintiff's allegations. You must show that even accepting those facts as true, the legal claim fails.
Overwriting
Judges appreciate brevity. Make your points clearly and move on. A 50-page motion to dismiss is rarely more persuasive than a focused 15-page brief.
Missing Deadlines
Know your jurisdiction's rules on timing. In federal court, a motion to dismiss must typically be filed before the answer, though consolidation is possible.
Using AI to Streamline the Drafting Process
Modern AI tools can significantly accelerate motion drafting. With Ezel AI, you can:
- Generate first drafts based on case-specific inputs
- Research relevant case law across multiple jurisdictions
- Check citations for accuracy and current good law status
- Analyze opposing arguments you might face in the response
AI enhances your legal judgment by handling repetitive elements so you can focus on strategy.
Key Takeaways
-
Choose your grounds carefully. Not every complaint is susceptible to every type of motion to dismiss.
-
Structure matters. A well-organized brief is easier to follow and more persuasive.
-
Be specific. Point to exactly what's missing from the complaint and why it matters.
-
Consider the response. Anticipate counterarguments and address them preemptively.
-
Know when to file. Sometimes waiting for discovery makes more sense than an early motion.
Mastering the motion to dismiss takes practice, but it's a skill that will serve you throughout your litigation career. By understanding the rules, structuring your arguments effectively, and leveraging modern tools, you can become more effective at this critical stage of litigation.
Need help drafting your next motion? Try Ezel AI and see how AI can accelerate your legal drafting while maintaining the quality your clients expect.