Several months ago, I wrote about “summary judgment” motions — requests that a case be dismissed due to the lack of any evidence to support the factual assertions made by the plaintiff. Recall that, normally, it is up to a jury to weigh the evidence and decide factual disputes. But if the judge determines that there is simply no evidence to support an assertion, she can throw out the plaintiff’s case on summary judgment (or “summary disposition”). Summary judgment motions are usually filed after the parties have exchanged evidence during the discovery process. Sometimes, however, a defendant may have reason to ask the Court to dismiss a case right from the start due to a procedural or legal defect in the lawsuit. In that instance, the defendant files a motion to dismiss.

The most common basis for a motion to dismiss is the plaintiff’s failure to state a legally recognized claim. When evaluating such a motion, the trial judge must assume for argument’s sake that every factual allegation made by the plaintiff is true. The question is not whether the facts are as alleged. Rather, it is whether the alleged facts give rise to a legally recognized basis for recovery.

For example, if a drunkard sues his neighbor for slander because the neighbor gossiped about the night the drunkard passed out on his front lawn, the lawsuit might fail to state a claim. Slander requires a false statement. If the drunkard does not allege that the neighbor told a falsehood (but only that he was inconsiderate in spreading an embarrassing truth), the neighbor should prevail on his motion to dismiss for failure to state a claim.

Courts view motions to dismiss cautiously. Judges are reluctant to deny anyone his day in court prematurely. But under proper circumstances, defendants may use a motion to dismiss to short-circuit an ill-conceived legal action. And even if the judge denies the motion, she may have a better appreciation of the case’s weaknesses when the defendant returns months later asking for summary judgment.