A Motion to dismiss is a request to the court to “kick out” the case against you. It isn’t based on evidence that you have or could produce or show (a motion for summary judgment is the way you do that), but rather is designed to “test the sufficiency of the pleadings.” Debt defendants tend to overuse the motion to dismiss – or to “over-rely” on them. They often do not work, but filing them can be a way to familiarize yourself with the law and to slow the pace of the lawsuit – things which are helpful to pro se debt defendants.
In plain English, a motion to dismiss argues that the plaintiff has not alleged enough facts – even if everything it does allege is considered true – to make a claim against you that the law would recognize. I have, in other articles, compared it to a speeding ticket for “driving 25 mph in a 30 mph zone.” It just isn’t illegal to do that, and the case would get kicked out.
Of course it is rarely so simple. From time to time I suggest possible violations of the Fair Debt Collections Practices Act (FDCPA). For example, I have suggested that including the supposed right to verify in the Petition is deceptive and unfair. Eventually someone will allege that in a counterclaim, and the debt collector will probably file a motion to dismiss, arguing that including that language in the petition does not violate the FDCPA. So you can see from that example that motions to dismiss can be brought against counterclaims as well as claims in a Petition.
Procedure for Motions to Dismiss
Motions to Dismiss are controlled by the Rules of Civil Procedure for your jurisdiction. Find the appropriate rule by looking up “motions” or “motion to dismiss.” You will see that there are many enumerated bases for motions (at least in Missouri). In general, if the argument is that there simply isn’t a right to the relief requested from the court (as in my examples above), you can usually file this motion at any time because the court really lacks the power or authority to do something the law doesn’t allow. If the argument is about whether the court has authority over you, on the other hand (because you weren’t served correctly, for example), you would probably need to bring a motion to dismiss before answering the petition.
You can, and probably should, in general, bring a motion to dismiss before you answer a petition. In other words, if you file a motion to dismiss, you almost certainly do not need to file an Answer. The motion stops the clock on the time for responding. If you lose the motion, the court will order you to respond to whatever part of the petition or claim that remains.
It isn’t always clear who needs to “set” the motion to dismiss for a hearing. In general I suppose it is whoever wants the case to move forward – and that usually means the debt collector. The case will not move forward until the motion to dismiss is resolved. Sometimes courts will dismiss the entire action for “failure to prosecute” if the debt collector does not call the motion. Sometimes the judge will pressure the defendant to argue the motion or will deny it if it isn’t set for argument. This seems to depend on the personality of the judge.
For a sample Motion to Dismiss a simple debt collection, please click here.
Incidentally, these motions are sometimes called “motions to dismiss for failure to state a claim,” and that is the name of federal rule 12(b)(6) (and many state court rules as well, which are usually identical). Remember that you won’t be bringing your motion under federal law but whatever your applicable state law is.