A Motion to Dismiss, unlike a Motion for Summary Judgement, is a motion that is filed by the defendant immediately after a Complaint is filed, before the parties engage in Discovery. When the defendant files a Motion to Dismiss, they are asking the Court to find that even if every single allegation of fact in the Complaint is accepted as true, the Plaintiff is still not entitled to judgement, and thus the case should be dismissed. Let’s look at the below example of how it works in practice.
Assume that 9 year old Marcus attends church one day with his family. While at church, Marcus’ parents see the pastor lightly pat Marcus on the head to say hello. Marcus’ parents, being very aware of the child sex abuse that still exists in churches today, become very upset by this physical contact, and believe the pastor may be in the process of grooming Marcus. As a result, Marcus’ parents file a Complaint, pro se, and assert one count of sexual assault against the pastor and the church. In the Complaint the parents state that Marcus is in danger of sexual assault in the future, and that their evidence of this is the fact that they witnessed the pastor potentially grooming Marcus by patting him on the head. The defendants would then file a motion to dismiss, and argue to the Court that even if each of these factual allegations were true, neither Marcus nor his parents are entitled to judgment, as patting a child on the head does not fit the definition of sexual assault, and there is no cause of action for grooming.
The Judge would likely grant defendants’ motion to dismiss, and the Complaint filed by Marcus’ parents would be dismissed. Sounds simple, right? The problem is, cases and factual situations like this are rarely as straightforward as they are in this hypothetical. Say, for example, the parents also state in the Complaint that Marcus told them in the past that the pastor “touches him a lot,” and does so in “sensitive places.” What then? In that situation, the Court would likely deny the motion to dismiss, as it can be inferred from this statement that the pastor has potentially sexually assault Marcus in the past, and the details of that will be explained and proven further in the discovery process.