Motions to dismiss and motions to strike serve different purposes. Learn when to use each one and how to choose the right strategy for your case.
Both motions to dismiss and motions to strike are powerful tools used in litigation to challenge claims or allegations within a complaint. However, they serve distinct purposes and are used in different circumstances. Understanding the difference between these two motions and when to use each is crucial for effective litigation strategy.
In this article, Legal Husk breaks down the key differences between motions to dismiss and motions to strike, providing insights into how each motion works and when to deploy them in your case.
✅ A motion to dismiss is typically filed early in the litigation process, often before the defendant answers the complaint. The purpose of a motion to dismiss is to challenge the legal sufficiency of the plaintiff’s complaint, arguing that, even assuming all facts alleged by the plaintiff are true, the plaintiff’s claims fail as a matter of law.
Failure to State a Claim (Rule 12(b)(6)): The plaintiff’s allegations do not meet the legal standards required for the claim.
Lack of Jurisdiction (Rule 12(b)(1) and Rule 12(b)(2)): The court does not have jurisdiction over the subject matter or the parties.
Improper Venue (Rule 12(b)(3)): The case has been filed in the wrong jurisdiction.
Failure to Exhaust Administrative Remedies: In some cases, plaintiffs must exhaust other remedies before suing in court.
🎯 Strategic Tip: Use a motion to dismiss to challenge the legal sufficiency of the plaintiff’s claims early in the litigation process. If successful, the case may be dismissed without proceeding to discovery.
✅ A motion to strike is a request made to the court to remove certain portions of the pleadings (such as the complaint, answer, or other documents) from the record. It can be used to eliminate irrelevant, redundant, or improper allegations or claims that do not belong in the case.
Immaterial or Irrelevant Allegations: Portions of the complaint or answer that are unrelated to the issues at hand.
Scandalous or Prejudicial Allegations: Allegations that are intended to inflame or prejudice the court or the opposing party.
Excessive or Redundant Claims: Claims or allegations that unnecessarily repeat or duplicate other claims in the pleadings.
Improper Defenses: In answers, a motion to strike can be used to remove defenses that are legally insufficient or frivolous.
🎯 Strategic Tip: Use a motion to strike to remove irrelevant, prejudicial, or redundant content from the pleadings without dismissing the entire case.
✅ While both motions are tools used to challenge parts of the pleadings, they serve different purposes and are filed under different circumstances:
Purpose:
Motion to Dismiss: Seeks to dismiss the entire case or specific claims based on legal grounds.
Motion to Strike: Seeks to remove specific portions of the pleading (claims, defenses, allegations) that are irrelevant, improper, or unnecessary.
Scope:
Motion to Dismiss: Can be based on issues like failure to state a claim, lack of jurisdiction, or improper venue, and affects the case’s overall progression.
Motion to Strike: Targets specific allegations or defenses within the pleadings and does not necessarily end the case.
Timing:
Motion to Dismiss: Typically filed early in the litigation process, before discovery, to challenge the legal sufficiency of the case.
Motion to Strike: Can be filed at any time during the litigation process, often after the pleadings have been filed.
🎯 Strategic Tip: If you believe the entire case or specific claims should be dismissed, file a motion to dismiss. If you want to remove improper or irrelevant allegations without dismissing the entire case, use a motion to strike.
✅ A motion to dismiss is appropriate when you believe that the plaintiff’s claims are legally insufficient and cannot proceed to discovery or trial. Common scenarios for using a motion to dismiss include:
Failure to Meet Pleading Standards: If the plaintiff’s complaint does not include enough facts to make their claim plausible, you can file a motion to dismiss under Rule 12(b)(6).
Lack of Jurisdiction: If the court does not have jurisdiction over the subject matter or the parties, file a motion to dismiss under Rule 12(b)(1) or 12(b)(2).
Improper Venue: If the case is filed in the wrong court, file a motion to dismiss under Rule 12(b)(3).
🎯 Strategic Tip: File a motion to dismiss when the legal viability of the entire case is in question or if jurisdictional issues exist.
✅ A motion to strike is typically used when you want to remove specific allegations or defenses from the pleadings, but the overall case can continue. Situations where a motion to strike may be appropriate include:
Irrelevant or Scandalous Statements: If the plaintiff or defendant has included statements in their pleadings that are irrelevant or designed to harm the other party’s reputation.
Excessive or Redundant Allegations: If the complaint or answer includes allegations that unnecessarily repeat other claims or are redundant.
Improper Defenses: In an answer, if the defendant raises legally insufficient defenses (such as a defense that is based on an irrelevant legal theory), you can move to strike these defenses.
🎯 Strategic Tip: File a motion to strike when you want to remove specific portions of the pleadings that are improper, redundant, or irrelevant, without dismissing the entire case.
✅ Before filing a motion to strike, consider the following:
Relevance: Make sure that the material you are requesting to strike is clearly irrelevant or prejudicial to the case.
Futility: Sometimes, filing a motion to strike can draw attention to irrelevant or improper material, which could help the opposing party solidify their position or provide them with the opportunity to amend their pleading.
Efficiency: Consider whether a motion to strike is the most efficient way to address the issue. Sometimes, requesting that the opposing party amend the pleading voluntarily may be a more cost-effective solution.
🎯 Strategic Tip: A motion to strike should only be used when the targeted portions of the pleading clearly do not contribute to the case and could distract from the real issues at hand.
✅ Example 1 – Motion to Dismiss for Failure to State a Claim:
In a contract dispute, the defendant files a motion to dismiss the plaintiff’s breach of contract claim under Rule 12(b)(6), arguing that the complaint fails to allege the existence of a valid contract.
“Defendant moves to dismiss the breach of contract claim under Rule 12(b)(6), asserting that the plaintiff has failed to allege the existence of a valid and enforceable contract.”
✅ Example 2 – Motion to Strike Scandalous Allegations:
In a defamation case, the defendant files a motion to strike certain scandalous allegations in the plaintiff’s complaint that are irrelevant to the legal claims.
“Defendant moves to strike the plaintiff’s allegations of unrelated personal attacks under Rule 12(f) as irrelevant and prejudicial to the case.”
🎯 These examples demonstrate how a motion to dismiss challenges the legal sufficiency of the case, while a motion to strike removes improper material from the pleadings.
Motions to dismiss and motions to strike are distinct legal tools, each with its own strategic use. A motion to dismiss seeks to eliminate an entire case or specific claims based on legal insufficiency, while a motion to strike removes specific, irrelevant, or prejudicial portions of the pleadings. Understanding when and how to use each motion is essential for crafting an effective litigation strategy.
At Legal Husk, we help attorneys determine the best approach for challenging claims and allegations, whether through a motion to dismiss or a motion to strike, ensuring that their case remains strong and focused.
Need help drafting a motion to dismiss or a motion to strike? Legal Husk provides expert guidance to help you choose the right motion for your case and strategically challenge improper claims.
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