The moving party must accept the allegations in the complaint as true.
The most important thing to understand is that a motion to dismiss accepts the allegations in a complaint as true. (There are limited exceptions to this rule, such as facts shown in exhibits to the complaint or facts that are properly subject to judicial notice, but this guide does not discuss the rules of evidence.) It is common for individuals who are representing themselves to move to dismiss the complaint against them by arguing that the allegations in the complaint are not true. That motion is bound to fail, because the court must rule on the motion to dismiss by asking, "What if the facts alleged in the complaint are true?" More specifically, "If the facts alleged are true, do they support the claims for relief in the complaint?"
A motion to dismiss must focus on the legal theories.
If you intend to file a motion to dismiss, you must research the elements of the claims against you and address whether any of those elements have not been alleged and/or cannot be alleged. In other words, your argument will be, "Even if the facts are true, I still win because plaintiff does not allege that I did 'X' which is a required element of a cause of action for 'Y'."
Opposing a motion to dismiss should focus on the facts alleged or seek leave to amend.
If you are opposing a motion to dismiss, then you should emphasize that the allegations in your complaint must be accepted as true. Assuming you researched the required elements of each cause of action in your complaint before filing it, you should quote the specific allegations in the complaint that go to each of the required elements for each cause of action. And in the end, you should always request permission of the court to file an amended complaint so that you can address any deficiencies in your complaint.
Our Rating is calculated using information the lawyer has included on
their profile in addition to the information we collect from state
bar associations and other organizations that license legal
professionals. Attorneys who claim their profiles and provide Avvo
with more information tend to have a higher rating than those who do
What determines Avvo Rating?Experience & background
Years licensed, work experience, education
Legal community recognition
Peer endorsements, associations, awards
Legal thought leadership
Publications, speaking engagements
This lawyer was disciplined by a state licensing authority in .
Disciplinary information may not be comprehensive, or updated. We recommend that you always check a lawyer's disciplinary status with their respective state bar association before hiring them.