A demurrer can be defined as the pleading which is done in a lawsuit that is required to oppose to the challenges that are caused due to pleading that is filed by the opposing party. In a general sense, the word demur can be used to oppose or challenge for defending in the favour of own party. Another term which is used in the context of this is demurrer which is the document that is used in the process of making the objection. In typical words, it is said in legal terms that the person would demur to the complaint but sometimes this is said that the plaintiff is demur to an answer which means that the plaintiff is liable to an answer. The demurrer can always challenge the legal means for taking a particular action through the means of a complaint or by giving a positive defence technique for providing an answer. The complain must have a cognizable claim and along with this it is also supposed to state all the elements that are required.
If this criteria is not met then the complete filing of the complaint can be discarded. In such a case the complaint would be stated as legally insufficient. Generally the filing of demurrer is done at the beginning of a case. The demurrer is filed for providing the response to the plaintiff who had filed a complaint. The same demurrer could also be used for providing the a response to a defendant who had answered the complaint. In recent days this process of pleading or demurrer has been discontinued for many jurisdiction cases. The countries in which the process has been discontinued include the United Kingdom, the court system of the U.S. federal, Virginia as well as the Pennsylvania. In certain typical cases such as criminal cases a demurrer has been considered to have the right to be heard and decided in front of the defendant and was required to plead “not guilty”.
One of the important assumptions of the demurrer can be the truth of all the facts of materials which are stated in the complaint and the evidence of the contradictory fact cannot be presented by the defendant. The defendant is also not supposed to prove the contrary facts even if the facts are made to appear as fabrications by the plaintiff or if they are disproved during litigation. In other words, the demurrer ensures that the positive defence as well as the cause of action that is stated in the pleading process are true and not legally insufficient. Sometimes the demurrer can test the insufficiency of the pleading activity. In the terms of law, there is assertion from the demurring party that the complaint or the claim that has been countered is not considered to be a legally valid claim. The claim is not taken to be legally valid even if the factual allegations that are contained in the complaint or the counterclaim are found to be true.
A motion to dismiss can be considered as a request that is made by a party to the court for dismissing a certain case due to many reasons. These reasons can be settlement, defects in the procedure, defects in the claim or there is a voluntary withdrawal. The law in general sense provides remedies for these issues. According to the Federal Rules of Civil Procedure, a plaintiff can dismiss a case in voluntary terms if he finds a fault or an issue with the case. In similar terms, the defendant might also give the dismissal notice to the court for dismissing a certain case and give different defences. The list of defences which can be provided by the defendant could be listed as follows.
1) There is lack of jurisdiction which is personal
2) There is lack of jurisdiction which is related to the subject-matter
3) The venue given for carrying out the jurisdiction is insufficient
4) The service required for carrying out the process of jurisdiction is also improper
5) The situations in which a plaintiff fails to produce a claim which could guarantee relief
6) The circumstances in which there is a failure for joining an indispensable party
Sometimes the defendant will file this motion to dismiss in order to provide a claim. The claim is stated in the Rule 12(b)(6). The claim consists of the fact that even if the allegations provided by the plaintiff are found to be true, they would not be considered to legally sufficient for stating a claim which would be able to guarantee the relief.
A motion of dismiss could be filed by any one of the parties during any time while the proceedings are going on. Generally the motion to dismiss is filed at the beginning of a jurisdiction or at the beginning of a lawsuit. The motion to dismiss is required to focus on the facts and allegations that are being shown in the complaint. This motion also focusses on the documents which are being provided in support of these allegations provided by the complaint. These documents are also referred to as “exhibits”. A motion to dismiss is generally filed in cases where a party thinks that the complaint made against him is legally invalid. The invalidity of the complaint is based on many grounds. An example can be provided in this context. The defence team of Bill Cosby once filed a motion to dismiss and the team argued that the sexual assault stated in the complaint had taken place outside of the “statue of limitations”. However, at the later part the judge dismissed the motion and stated that the argument which had been provided over the date of alleged assault was an issue which disputed for carrying out the trial process.
The procedure for filing a motion to dismiss can be dependant on the jurisdiction in which the filing of lawsuit has taken place. A defendant is required to file a motion to dismiss before filing the “answer” to the complaint. Even if there is a disapproval of the motion to dismiss, there is a chance given to the defendant to still file their answer but the filing should be on a very short period of time.
The two terms demurrer and motion to dismiss are similar in many respects in their functions. However, there could be many differences between the two legal terms.
A demurrer can be regarded as an objection which is done for challenging a complaint or a counter claim. From this it can be stated that demurrer is not a motion which can be used to dismiss a case. A demurrer can be filed by a defendant in order to oppose a case proceeding due to lack of presentation of a valid claim by the plaintiff. On the contrary, a motion to dismiss can be raised at any point of time due to failure in stating a claim. The motion to dismiss is entirely governed by Federal Rules of Civil Procedure 12(b)(6).
The demurrer is either considered to be sustained or overruled by the judge. The decision of the jury is not taken into consideration. In case of motion to dismiss, the plaintiff’s pleading is generally considered in cases when the defendant has filed a motion to dismiss. The court is never supposed to have an examination of the depositions or the affidavits. A motion to dismiss can also be filed due to lack in carrying out the process of personal jurisdiction. In this case, the motion to dismiss is generally filed just after the complaint of the plaintiff is received. During cases when the objection is waived, there is no further chance of the defendant to appeal before the court on the basis of lack of personal jurisdiction. During contradictory cases when the court approves a motion to dismiss, the plaintiff has chance to refile the lawsuit. The lawsuit in such cases would be refiled in locations where the court could have personal jurisdiction over the defendant.
For the cases of demurrer if there is overrule by the judge, the defendant is supposed to respond to the rest of the complaint of the plaintiff. In similar cases the defendant might risk a default judgement where the judge would rule in favour of the plaintiff without giving any allowance to the defendant for providing his right to defend. In the contradictory cases, when the judge sustains the demurrer, the case is allowed to dismiss. The case could be dismissed with prejudice or without prejudice. A demurrer which has been dismissed with prejudice means that the plaintiff cannot make any changes to his complaint and then serve it to the defendant.
For the motion to dismiss which are challenged due to failure in stating a claim, the court is required to dismiss the case without prejudice. This is done for cases when it has been reported by the court that the pleading is missing. In such cases, the plaintiff would have the option to make changes to the pleading and serve it accordingly to the defendant for his response.
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