Motion to Dismiss
A request to terminate a case (or specific claims) before merits discovery and trial, on grounds that the pleading fails to state a viable claim or that some other procedural defect bars the action. Texas TRCP 91a (no basis in law or fact) and federal Rule 12(b) provide overlapping but distinct mechanisms.
Texas has a general one: Tex. R. Civ. P. 91a allows dismissal of a claim with no basis in law or fact, decided on the pleading without evidence. It must be filed within 60 days after the first pleading containing the claim is served, and the court must rule within 45 days after filing.
A motion to dismiss is a request to the court to terminate a case (or specific claims) before merits discovery and trial, on grounds that the pleading fails to state a viable claim or that some other procedural defect bars the action. Texas and federal practice provide overlapping but distinct dismissal mechanisms.
- Governing rule
- Tex. R. Civ. P. 91a
- Filing deadline
- 60 days after the first pleading with the challenged claim is served (Rule 91a.3(a))
- Ruling deadline
- 45 days after the motion is filed (Rule 91a.3(c))
- What the court reviews
- The pleading and any Rule 59 exhibits, with evidence only on fees (Rules 91a.6, 91a.7)
- Fees
- Court may award costs and fees to the prevailing party (Rule 91a.7); (Tex. Civ. Prac. & Rem. Code § 30.021)
Texas Rule 91a, dismissal of baseless claims
Texas's TRCP 91a, adopted in 2013, allows a motion to dismiss claims that have "no basis in law or fact." A claim has no basis in law if the allegations, taken as true, do not entitle the claimant to the relief sought. A claim has no basis in fact if no reasonable person could believe the facts pleaded.
The 91a motion is decided on the pleading of the challenged claim and any exhibits Rule 59 permits, and the court may not consider evidence except on a request for fees under Rule 91a.7. The motion must be filed within 60 days after the first pleading containing the challenged claim is served and decided within 45 days of filing. The court may award the prevailing party on the motion its costs and reasonable and necessary attorney's fees, based on evidence, except in an action by or against a governmental entity or public official (Rule 91a.7).
Federal Rule 12(b) motions
Federal Rule 12(b) provides seven grounds for pre-answer dismissal: (1) lack of subject matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19. Rule 12(b)(6) (failure to state a claim) is the most-used.
Twombly/Iqbal plausibility standard
Under Twombly and Iqbal, federal Rule 12(b)(6) motions are evaluated against a plausibility standard, the complaint must contain "enough facts to state a claim to relief that is plausible on its face," not merely possible. Conclusory allegations and threadbare recitals of the elements of a claim do not survive.
Other Texas dismissal mechanisms
Plea to the jurisdiction: challenges the court's subject matter jurisdiction; not waivable.
Special exceptions (TRCP 90–91): challenge defects in pleadings that are not fatal but require amendment.
Requirements for a Rule 91a motion
- A statement that the motion is made under Rule 91a (Rule 91a.2).
- Identification of each cause of action it challenges (Rule 91a.2).
- Specific reasons each challenged claim has no basis in law, no basis in fact, or both (Rule 91a.2).
- Filing within 60 days after service of the first pleading containing the claim, and at least 21 days before the hearing (Rule 91a.3(a)-(b)).
- At least 14 days' notice of the hearing to each party, with any response due 7 days before it (Rules 91a.4, 91a.6).
Why would a judge deny a motion to dismiss in Texas?
Under Rule 91a, because the claim has a basis in law and in fact as pleaded. The court takes the allegations as true, together with inferences reasonably drawn from them, and asks whether they would entitle the claimant to the relief sought. A claim lacks a basis in fact only if no reasonable person could believe the facts pleaded (Rule 91a.1). An amendment filed at least 3 days before the hearing also changes what the court rules on (Rule 91a.5).
Can a case be dismissed without going to court in Texas?
Yes, in two common ways. A Rule 91a motion may be decided without an oral hearing, since the court "may, but is not required to," hold one (Rule 91a.6). Separately, a plaintiff may nonsuit its own case at any time before it has introduced all of its evidence other than rebuttal, though a pending claim for affirmative relief by the other side survives (Rule 162).
What are the grounds for a motion to dismiss in Texas?
The ground depends on the rule or statute used. Rule 91a covers claims with no basis in law or fact. A motion under the Texas Citizens Participation Act targets a legal action based on or in response to the movant's exercise of free speech, petition or association, and is due within 60 days after service (Tex. Civ. Prac. & Rem. Code § 27.003). Courts also dismiss for want of prosecution (Rule 165a), and a special appearance challenges personal jurisdiction (Rule 120a).
Texas's TRCP 91a is more procedurally favorable to defendants than the pre-2013 special-exception practice.