Litigation Whiteboard® – Difference between a Demurer and a Motion to Dismiss by Attorney Steve®

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Introduction

We litigate a lot of cases in California.  Both in state courts and federal courts.  After a Plaintiff files a lawsuit, a Defendant can either ANSWER the lawsuit (by answering the allegations and raising affirmative defenses) or they can file a DEMURRER (which is basically a motion to dismiss the case).  In federal Courts in California (ex. if a lawsuit is filed by a Plaintiff in the Central district courts, Southern District, Eastern District, or Northern District) a Defendant can either ANSWER (and again raise affirmative defenses) or file a MOTION TO DISMISS (which just like the Demurrer seeks to have the case dismissed on one or more grounds.

In federal court, you can look at F.R.C.P. Rule 12 (Federal Rules o Civil Procedure) for a list of possible grounds to file a motion to dismiss.  Here is a portion of the rule:

(b) How to Present Defenses.

Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction;

(2) lack of personal jurisdiction;

(3) improper venue;

(4) insufficient process;

(5) insufficient service of process;

(6) failure to state a claim upon which relief can be granted;

and

(7) failure to join a party under Rule 19. A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.

If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion

Contact a California State & Federal Litigation Lawyer

If you need help with a business, real estate, or IP / Internet arbitration, mediation or litigation case in the Federal Courts in California, (or want to file a Demurrer in a State court action – for example in the California Superior Courts), give us a call at (877) 276-5084 to discuss your case.  

We can help with federal cases involving software infringement, music infringement, jewelry infringement, photo infringement, DMCA anti-circumvention software piracy case, and internet (Defamation, Media, anti-SLAPP) or trademark disputes.  Click here to learn more about copyright infringement practice area.  

You can email us through our contact form as well.