Facing a motion to dismiss? Learn the strongest defenses to keep your case alive and move forward confidently through litigation.

When a defendant files a motion to dismiss, they aim to strike down the lawsuit before it ever reaches discovery or trial. But plaintiffs have powerful tools to counter these attacks. With strategic defenses and strong legal arguments, you can overcome dismissal attempts and push your case forward.

In this guide, we cover the most common defenses against motions to dismiss—and how to use them effectively.

1. Understanding a Motion to Dismiss

A motion to dismiss asks the court to throw out a lawsuit due to legal deficiencies. It is typically filed early in the litigation process and challenges the case on procedural or substantive grounds.

Common Grounds for Dismissal:

• Failure to state a claim (Rule 12(b)(6))

• Lack of subject matter or personal jurisdiction (Rules 12(b)(1) and 12(b)(2))

• Improper venue (Rule 12(b)(3))

• Expired statute of limitations

• Lack of standing

• Failure to comply with procedural requirements

Plaintiff’s Goal:
Demonstrate that the complaint meets legal standards and deserves to proceed to discovery and trial.

2. Common Defenses Against a Motion to Dismiss

A. Arguing That the Complaint States a Valid Claim (Rule 12(b)(6))

Defendants often argue the complaint fails to state a claim upon which relief can be granted.

Defense Strategy:

• Highlight that the complaint contains sufficient factual allegations to establish a plausible legal claim.

• Emphasize that courts must view facts in the light most favorable to the plaintiff.

• Cite precedents where similar claims survived dismissal.

Example:
In a personal injury case, argue that the complaint adequately pleads duty, breach, causation, and damages—even if details are brief.

B. Challenging Jurisdictional Arguments (Rules 12(b)(1) and 12(b)(2))

Defendants may claim the court lacks jurisdiction.

Defense Strategy:

• Demonstrate that the court has jurisdiction under federal or state statutes.

• Show that the defendant has sufficient minimum contacts with the forum state.

• Emphasize any contractual or statutory jurisdiction clauses favoring the plaintiff’s position.

Example:
A business operating regularly in the plaintiff’s state can be shown to have sufficient contacts for personal jurisdiction.

C. Overcoming Statute of Limitations Defenses

Defendants often argue that the plaintiff filed the lawsuit too late.

Defense Strategy:

• Argue that the statute was tolled due to the discovery rule, minority status, fraud, or equitable considerations.

• Show that the cause of action accrued later than the defendant claims.

Example:
In a malpractice case, argue the statute began running when the injury was discovered—not when the medical error occurred.

D. Demonstrating Proper Venue (Rule 12(b)(3))

Venue challenges argue the lawsuit was filed in the wrong court.

Defense Strategy:

• Show that the venue is proper based on where events occurred, where the defendant resides, or contractual venue clauses.

• Argue that the appropriate remedy is transfer, not dismissal.

Example:
For real estate disputes, argue that the venue is proper where the property is located.

E. Addressing Standing and Justiciability Challenges (Rule 12(b)(1))

Defendants may argue plaintiffs lack standing to sue.

Defense Strategy:

• Show an actual injury, traceable to the defendant, and likely to be redressed by the court.

• Assert third-party or associational standing if applicable.

Example:
A consumer harmed by deceptive advertising establishes standing by showing economic injury from relying on false claims.

F. Curing Procedural Deficiencies Through Amendments

Some motions to dismiss target minor pleading errors.

Defense Strategy:

• Request leave to amend the complaint to correct technical issues.

• Argue that amendments should be freely granted to allow resolution on the merits.

Example:
If a fraud claim lacks specificity under Rule 9(b), seek permission to add more detailed allegations rather than facing dismissal.

3. How to Strengthen Your Opposition to a Motion to Dismiss

A. Research and Cite Strong Precedent

• Use similar cases where courts denied dismissal.

• Distinguish adverse case law by showing factual or legal differences.

B. Draft a Clear and Persuasive Opposition Brief

• Methodically address each argument raised by the defendant.

• Emphasize favorable inferences and the liberal pleading standards.

• Keep the brief organized, concise, and legally well-supported.

C. Prepare for Oral Argument (If Required)

• Anticipate the court’s questions and respond confidently.

• Highlight the key reasons the case should survive.

Final Thoughts

A motion to dismiss is not the end of your case—it’s an opportunity to sharpen your arguments and show the strength of your claims. By:

✔ Demonstrating valid legal claims,
✔ Defeating procedural objections,
✔ Correcting minor pleading issues, and
✔ Strategically reinforcing your case,

you can overcome dismissal efforts and keep your lawsuit moving toward trial or settlement.

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