How to oppose a motion to dismiss

Being charged with a crime doesn’t automatically mean your case will go to trial. If your attorney deems the charges are unwarranted or that the prosecution lacks enough evidence to secure a conviction, she may file a Motion to Dismiss. When granted, this motion effectively cancels the case, and the charges against you are dropped.

How to oppose a motion to dismiss

Understanding the Motion to Dismiss

The Motion to Dismiss is a common pre-trial motion, used in both criminal and civil suits, that simply asks the courts to throw out the case. The law affords you certain protections when you’re charged with a crime: for example, you can’t be lawfully tried for a particular crime after a certain period of time has passed since the alleged crime occurred (known as the Statute of Limitations), neither can you be tried in a court that has no jurisdiction over your case. In cases like these, a Motion to Dismiss can be an effective pre-trial strategy, and if the judge grants the motion, the charges against you are dropped.

It’s important to understand that the Motion to Dismiss does not address your guilt or innocence, but simply challenges the terms or validity of the case itself. Likewise, cases are not dismissed simply because someone asks for it, which is why it’s important to have an experienced criminal defense attorney who can determine whether there are valid reasons to argue for the dismissal of your case, and who can express these arguments effectively.


There are number of valid reasons why a case can and should be thrown out of court. Here are a few of the more common reasons why your attorney may file a Motion to Dismiss:

  1. Statute of Limitations. Both federal and state laws put a time limit on certain alleged crimes as to when the state may try you for them. This time limit varies according to the crime. If your attorney can show that the Statute of Limitations has expired for the charges in question, the court must dismiss the case.
  2. Lack of due process during the arrest. The police must follow certain procedures when arresting people for alleged crimes. If you were arrested under mere suspicion without due process or just cause, the resulting charges may be dropped.
  3. No jurisdiction. You can only be tried in a court that has lawful jurisdiction over your case, depending on where the crime occurred—for example, if the crime occurred on federal lands, the state may not be able to try you for the crime. If it can be shown that the court doesn’t have lawful jurisdiction over the alleged crime, the case must be thrown out.
  4. Errors in filing the complaint. When the prosecution formally charges you, the complaint or indictment must follow certain procedures in communicating what you’re charged with, and why. If the complaint fails to meet these procedures, and for any reason it becomes difficult to correct those errors, your attorney may present a convincing argument that those charges shouldn’t have been filed in the first place.
  5. Lack of admissible evidence. Before the trial, your attorney will be able to review the body of evidence the prosecution has gathered against you. If certain individual pieces of evidence are improperly obtained, your attorney may file a Motion to Exclude Evidence to keep that evidence from being presented at trial. However, if a significant amount of evidence is inadmissible, or if there is any doubt that the prosecution has enough evidence to secure a conviction, a Motion to Dismiss may convince the judge not to move forward with the case.

Our Experience with Motions to Dismiss

A Motion to Dismiss is most likely to be granted if the attorney filing the motion has a clear understanding of court procedures and can effectively argue specific reasons why the charges against you should not be brought to trail. The attorneys of the Federal Criminal Law Center have extensive experience in pre-trial motions and negotiations, both in the state courts of Georgia and in federal court, and they know when a Motion to Dismiss is most likely to work in your favor.

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3 attorney answers

Bonnie Joan Jackson

  • Posted on Feb 29, 2012

You are not required to answer a motion to dismiss, however, it is in your best interests to provide the court with a written response to the motion. While the burden of proof falls squarely on the maker of the motion, you may find that you agree with one or more points raised in the motion. Conversely, you may not agree with any aspect of the motion. By placing a written response in the record, your position is clear. Also, judges do their best to review motions and responses before hearings. The better prepared the judge is to consider the merits of both sides, the better chance that the correct decision will be reached on the motion. In addition, some judges do not have a hearing on every motion and may decide on the papers. If you do not respond in writing, your position will not be considered.

Disclaimer: This answer is strictly for informational purposes, and should not be considered legal advice.

Alexandra Tracy-Ramirez

  • Posted on Feb 27, 2012

I am not licensed in your state but do be aware that how long the court entertains responses to motions varies based on the kind of court you’re in- county superior courts or a federal court.

While a Plaintiff does not have an obligation to respond to a motion to dismiss, it’s typically a good idea to respond in order to make sure the case is not thrown out. Depending on the type of issue involved, a judge may dismiss the case with prejudice, meaning that the plaintiff would not have the opportunity re-file the lawsuit or amend the complaint. It doesn’t happen often, but it does happen, especially in mortgage/foreclosure cases.

A defendant can bring a motion for summary judgment, but as the previous answer indicated, it’s completely separate from a motion to dismiss and is not a response to a motion to dismiss. Additionally, summary judgment motions typically happen later on in litigation after there has been some chance to undertake discovery.

Your best bet is to find an attorney who can help make sure that the case is not thrown out for a procedural reason and has the chance to move forward.

This answer is to provide you with information and resources only. It does not indicate that my office represents you in this or other matters.

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Zonald Evan Spinks

  • Posted on Feb 25, 2012

There is no specific time limit because there is no obligation for the plaintiff to respond. The moving party has the burden of demonstrating that the motion should prevail at a hearing before the court, UNLESS other pleadings filed in the case elminate the issue. Therefore, the next step would be a hearing on the Motion.

A motion to dismiss tests the sufficiency of the pleadings or the court’s authority over the parties or subject matter. In ruling on a motion to dismiss the court may not go beyond the four corners of the complaint and must accept the facts alleged therein as true. All reasonable inferences must be drawn in favor of the pleader.

If you lost, typically you would have 10-20 days to amend your complaint.

Summary judgement is completely different. Summary judgment is a determination made by a court without a full trial. By resolving the matter before trial, summary judgment saves valuable trial time and assists in securing speedy and inexpensive resolution of disputes. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case. A movant is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

If there IS a genuine issue as to any material fact, then the defendant would not be entitled to a summary judgement.

You probably need an attorney if you don’t have one. This is not something you should rely on Google for legal information.

Zonald Spinks, Esq. Phone: (813) 413-5352 Fax: (813) 658-5893 Twitter: @ZonaldLaw Skype: Zonaldlaw Disclaimer: legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer if you want professional assurance that this information, and your interpretation of it, is appropriate to your particular situation. This information is not intended as legal advice for an individual situation, it is only provided as information.

If you get through the first hurdles, the next legal paper you receive from the prison officials may be a Motion to Dismiss your suit. Rule 12(b) of the Federal Rules of Civil Procedure explains some of the grounds for a motion to dismiss. Defendants may give a number of reasons. One reason is sure to be that you did not “state a claim upon which relief can be granted,” which means defendants think that what you are complaining about does not violate the law.

The motion to dismiss is a written request that the judge end your suit, without you getting the chance to get discovery, or go to trial. Attached to the motion will be a memorandum of law which gives the defendant’s legal arguments for dismissing your suit. Each court has different rules about how long you have to respond to this motion, but usually you will have at least two or three weeks to file an opposition to the defendant’s motion to dismiss. The opposition is a memorandum of law that responds to the defendant’s arguments. If you need more time, send the judge a letter explaining why and asking for a specific number of extra weeks. If you can, check the local rules to see if the court has any specific requirements for time extensions. If you cannot find any information, just send the letter and send a copy to the prison officials’ lawyer.

Chapter Seven explains in more detail how to research and write your opposition, so be sure to read it before you start working. After you read the suggestions in Chapter Seven, you may want to try to read all of the cases that the defendants use in their memo. If you read these cases carefully, you may come to see that they are different in important ways from your case. You should point out these differences. You can also try to find cases the defendants have not used that support your position.

To support their motion to dismiss, the prison officials can make all kinds of arguments which have been dealt with in other parts of this Handbook. They may say you failed to exhaust administrative remedies (see Chapter Five, Section A), or that you cannot sue top prison officials who did not personally abuse you (see Chapter Four, Section D). They may claim you sued in the wrong court (“improper venue” – see Chapter Five, Section B) or that your papers weren’t properly served on some of the defendants (see Chapter Five, Section D).

The prison officials may also argue against your constitutional claims. They might say that you failed to state a proper claim because the actions you describe do not deny due process or equal protection, or are not cruel and unusual punishment.Your memorandum of law should respond to whatever arguments the government makes.

Unfortunately, writing a memorandum of law requires quite a bit of legal research and writing. Because time to do this research might be an issue for you, you can prepare for this memorandum before you even receive the motion to dismiss. Research cases that are both helpful and harmful to your case. There is a chance defendants will use some of them and you will have already done a lot of your research.

Defendants might point out something that is wrong with your case that you want to fix, instead of defending against the motion to dismiss. Under rule 15(a) of the Federal Rules of Civil Procedure, you have the right to amend your complaint once, as long as you do so within 21 days of defendants answering or filing a motion to dismiss. If the defendants have already answered, or you have already amended once, Rule 15 allows you to ask the defendants to consent to you filing an amended complaint, or ask the court for permission to amend. Courts are supposed to give you permission “freely” when “justice so requires.” Ask for consent first, and if you don’t get it, file a Motion for Leave to Amend in which you describe your proposed changes or attach the proposed amended complaint.

One thing you will have going for you is that in considering the defendant’s motion to dismiss, the judge must assume that every fact you stated in your complaint is true. The judge must then ask: if all those facts are true, is it plausible that the defendants violated your rights? If any combination of the facts stated in your complaint might qualify you for any form of court action under Section 1983, then the judge is legally required to deny the prison officials’ motion to dismiss your complaint. In making this decision, Courts are supposed to treat unrepresented parties, including prisoners, more leniently that people who are filing a suit with a lawyer. In considering a motion to dismiss, a pro se complaint should be held to less strict standards than a complaint drafted by a lawyer.

It is important to remember in writing your opposition that defendants have to deal with the facts as you put them in your complaint. For example, if you stated in your complaint that you were “severely beaten” by two guards, yet the defendant says in his motion to dismiss that an “inadvertent push” doesn’t amount to cruel and unusual punishment, you should tell the court in your memo that you did not allege an “inadvertent push,” you alleged a severe beating, and that is what the court has to assume is true.

Send three copies of your memo to the court clerk (one will be returned to you to let you know they accepted your papers) and one copy to each defendant’s lawyer. Usually all the prison officials are represented by one lawyer from the office of the Attorney General of your state. The name and office address of that lawyer will be on the motion to dismiss.

In some cases, after the parties exchange memoranda of law, attorneys for both sides appear before the judge to argue for their interpretation of the law. However, when dealing with a case filed by a prisoner pro se, most judges decide motions based only on the papers you send in, not on arguments in person. In the rare case that a judge does want to hear argument, many federal courts now use telephone and video hook-ups, or hold the hearing at the prison. It is quite hard to get a court to order prison administrators to bring you to court, because the PLRA requires that courts use these new techniques “to the extent practicable.”

If the judge does decide to dismiss your complaint, he or she must send you a decision stating the grounds for his or her action. The judge may or may not dismiss your case with leave to amend. Either way, you can appeal from that decision. Part G of this chapter explains what else you can do if the court dismisses your complaint.

Instead (or before) a Motion to Dismiss, you may receive a Motion for Extension of Time or a Motion to Relate from the prison. A motion for extension of time (or “enlargement”) gives the other side more time to file an answer or motion. One extension is usually automatic. If your situation is urgent, write the court to explain the urgency and ask that the prison officials not get another extension.

A motion to relate tries to combine your suit with others which the court is already considering. Check out what the other suit is about, who is bringing it, and what judge is considering it. This could be a good or bad thing for you, depending on the situation. If you think you’d be better off having your suit separate, submit an affidavit or memorandum of law in opposition to the motion to relate. Say clearly how your suit is different and why it would be unfair to join your suit with the other one. For example, the facts might get confused.

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