Demurrer

Last updated

A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word demur means "to object"; a demurrer is the document that makes the objection. Lawyers informally define a demurrer as a defendant saying "So what?" to the pleading. [1]

Contents

Typically, the defendant in a case will demur to the complaint, but it is also possible for the plaintiff to demur to an answer. The demurrer challenges the legal sufficiency of a cause of action in a complaint or of an affirmative defense in an answer. If a cause of action in a complaint does not state a cognizable claim or if it does not state all the required elements, then the challenged cause of action or possibly the entire complaint can be dismissed at the demurrer stage as not legally sufficient. A demurrer is typically filed near the beginning of a case in response to the plaintiff filing a complaint or the defendant answering the complaint.

In common law, a demurrer was the pleading through which a defendant challenged the legal sufficiency of a complaint in criminal or civil cases. Today, however, the pleading has been discontinued in many jurisdictions, including the United Kingdom, the U.S. federal court system, and most U.S. states (though some states, including California, Pennsylvania, and Virginia, retain it). In criminal cases, a demurrer was considered a common law due process right, to be heard and decided before the defendant was required to plead "not guilty," or make any other pleading in response, without having to admit or deny any of the facts alleged.

A demurrer generally assumes the truth of all material facts alleged in the complaint, and the defendant cannot present evidence to the contrary, even if those facts appear to be obvious fabrications by the plaintiff or are likely to be easily disproved during litigation. That is, the point of the demurrer is to test whether a cause of action or affirmative defense as pleaded is legally insufficient, even if all facts pleaded are assumed to be true.

The sole exception to the no-evidence rule is that a court may take judicial notice of certain things. For example, the court can take judicial notice of commonly known facts not reasonably subject to challenge, such as the Gregorian calendar, or of public records, such as a published legislative report showing the intent of the legislature in enacting a particular statute.

Overview

Civil cases

A demurrer is commonly filed by a defendant in response to a complaint filed by the plaintiff. A demurrer to a complaint can terminate a lawsuit. Although a plaintiff may demur to a defendant's answer to a complaint or the defendant's affirmative defenses, a demurrer to an answer is less common because it may be a poor strategic move. A demurrer to an answer may simplify a lawsuit, but it usually will not end the lawsuit; it is normally used only when the plaintiff intends to move for summary judgment in their favor at the earliest opportunity and needs to preemptively attack some of the defendant's affirmative defenses.

Technically, a demurrer is not a motion; a party does not file a motion for demurrer nor move the court to demur. Rather, a demurrer is a particular type of pleading and demurring is the act by which a party formally requests the court to dismiss a cause of action (claim) or the entire complaint.

In lay terms, a judge who sustains a demurrer is saying that the law does not recognize a legal claim for the facts stated by the complaining party. If the judge overrules a demurrer, the court is allowing the claim or case to proceed.

In legal terms, the demurring party asserts that the complaint or counterclaim does not amount to a legally valid claim, even if the factual allegations contained in the complaint or counterclaim are accepted as true.

Usually, a demurrer attacks a complaint as missing one or more required elements of a claim. Those elements are usually attacked by showing that the plaintiff failed to plead an essential element per se or facts that adequately support it (e.g., facts giving rise to an actionable duty running from the defendant to the plaintiff). Another method is to attack the entire cause of action itself as abolished or prohibited as against public policy (e.g., wrongful life is against public policy in most jurisdictions).

Demurrers are decided by a judge rather than a jury. The judge either grants the demurrer by sustaining it, or denies it by overruling the demurrer. If the demurrer is overruled, the defendant is ordered to file an answer within a certain period of time or else risk a default judgment. Once the answer is filed, then the case is said to be "at issue" (because there are now a complaint and answer on file opposing each other with the parties' respective provisions), and the case proceeds to the discovery stage.

In the alternative, a judge may sustain a demurrer with prejudice or without prejudice. With prejudice means the plaintiff cannot file another complaint attempting to fix insufficiencies of the previous complaint. If the demurrer is granted without prejudice and/or with leave to amend, then the plaintiff may correct errors filing a corrected and/or amended complaint. Demurrers sustained with prejudice are reserved for when the judge determines a plaintiff cannot cure or fix the complaint by rewriting or amending it. Depending upon the severity of the defect in a complaint, a court may sustain with prejudice on the first demurrer (very rare) or allow the plaintiff as many as three or four attempts before sustaining a demurrer to a third or fourth amended complaint with prejudice.

Criminal cases

In criminal cases, a demurrer may be used in some circumstances to challenge the legal sufficiency of the indictment or other similar charging instrument. Traditionally, if the defendant could admit every allegation of the indictment and still be innocent of any crime, then a general demurrer would be sustained and the indictment would be dismissed. A special demurrer refers to an attack on the form, rather than the substance, of the charge: if the defendant correctly identifies some defect "on the face" of the indictment, then the charges are subject to being dismissed, although usually the indictment can be redrawn (rewritten) and re-presented to the grand jury or other charging authority. While there are different ways to accomplish the goals of a special demurrer, often an alternative method to challenge the sufficiency of the indictment is an attack on the prosecution's case prior to trial, and is generally made by means of motion to dismiss.

England and Wales

In civil law a demurrer as such is no longer available under the current law of England and Wales. However, two similar procedures may be employed where claims without merit need to be expeditiously dismissed.

First, an application on notice can be made for summary judgment in favor of the objecting party. Second, the court has power to strike out the Particulars of Claim.

To have a non-meritorious claim dismissed, however, the distinction between the two procedures is that when the Particulars of Claim are struck out, the claimant usually has another opportunity to file an amended Particulars of Claim, within, for example, four weeks, whereas Summary Judgment is final, though subject to appeal.

In criminal law demurrer is obsolete, although not formally abolished. It has been superseded by the more modern motion to quash , usually a verbal application to the judge to rule the indictment null and void and to stop the case. (Demurrer was pleaded in writing).

United States

Federal courts

In civil cases in the United States district courts, the demurrer was expressly abolished by Rule 7(c) of the Federal Rules of Civil Procedure ("FRCP", also "Federal Rules") when the FRCP went into effect on September 16, 1938. The demurrer was replaced by the Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.

The demurrer was abolished after American lawyers realized that the pleadings should frame only those issues that will be actively litigated through motion practice once both sides have fully stated their positions and the case is at issue. Although the demurrer technically also framed the issues in a case, treating the demurrer as a pleading came to be seen as irrational because it was the only pleading that required an immediate hearing and ruling on its content (which consisted of an attack upon the complaint), while the complaint and the answer merely stated the respective positions of each side but did not require hearings in and of themselves. Thus, it made sense that a discretionary attack upon the complaint that was already being drafted, calendared, heard, and ruled upon like a motion should simply be treated like one.

Having purged the demurrer from federal courts, Rule 7(c) was deemed obsolete by the Advisory Committee on Civil Rules during the 2002–2007 FRCP revision cycle. It was therefore deleted from the version of the FRCP that went into effect on December 1, 2007.

State courts

A majority of U.S. states (approximately 35) have adopted civil procedure rules modeled after the Federal Rules and therefore have abolished the demurrer and replaced it with the motion to dismiss for failure to state a claim upon which relief can be granted. In Ohio, for example, demurrers are specifically prohibited. [2]

However, a demurrer can still be filed by the defendant in a minority of U.S. state court systems. Demurrers are still used in California [3] and Virginia [4] state court civil practice. In California, a demurrer must assume the truth of the facts alleged by the complaining party, but challenges the complaint as a matter of law. [5] If a demurrer is sustained regarding the form of the complaint, leave to amend is liberally granted, and denial of leave to amend may constitute an abuse of discretion. [6] Additionally, when children are removed from their parents and taken into foster care in California, the parents may challenge the sufficiency of the dependency complaint by means of a motion akin to demurrer, which operates similarly to a demurrer. [7] However, demurrers are prohibited in California in other family law actions. [8] Also in California, a demurrer is not said to be "granted," but is said to be "sustained" or "overruled." An order sustaining a demurrer is not a readily appealable order unless it disposes of an entire action without leave to amend and results in a judgment. [9]

The term preliminary objection is used in Pennsylvania state court to refer to all motions made after the filing of a complaint but before the filing of an answer; preliminary objections may be made "in the nature of a demurrer" (seeking to dismiss a cause of action for legal insufficiency) or "in the nature of a motion to strike" (seeking to remove parts of a pleading for failure to abide by the technical rules), as well as various other means. [10] As with the traditional demurrer, preliminary objections are regarded as pleadings. Preliminary objections in the nature of a demurrer are governed by Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure.

Related Research Articles

In law, an answer was originally a solemn assertion in opposition to someone or something, and thus generally any counter-statement or defense, a reply to a question or response, or objection, or a correct solution of a problem.

In legal terminology, a complaint is any formal legal document that sets out the facts and legal reasons that the filing party or parties believes are sufficient to support a claim against the party or parties against whom the claim is brought that entitles the plaintiff(s) to a remedy. For example, the Federal Rules of Civil Procedure (FRCP) that govern civil litigation in United States courts provide that a civil action is commenced with the filing or service of a pleading called a complaint. Civil court rules in states that have incorporated the Federal Rules of Civil Procedure use the same term for the same pleading.

In law as practiced in countries that follow the English models, a pleading is a formal written statement of one party's claims or defenses in response to another party's complaint(s) in a civil action. The parties' pleadings in a case define the issues to be adjudicated in the action.

A lawsuit is a proceeding by one or more parties against one or more parties in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used with respect to a civil action brought by a plaintiff who requests a legal remedy or equitable remedy from a court. The defendant is required to respond to the plaintiff's complaint or else risk default judgment. If the plaintiff is successful, judgment is entered in favor of the defendant. A variety of court orders may be issued in connection with or as part of the judgment to enforce a right, award damages or restitution, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.

In law, a summary judgment, also referred to as judgment as a matter of law or summary disposition, is a judgment entered by a court for one party and against another party summarily, i.e., without a full trial. Summary judgments may be issued on the merits of an entire case, or on discrete issues in that case. The formulation of the summary judgment standard is stated in somewhat different ways by courts in different jurisdictions. In the United States, the presiding judge generally must find there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In England and Wales, the court rules for a party without a full trial when "the claim, defence or issue has no real prospect of success and there is no other compelling reason why the case or issue should be disposed of at a trial."

In United States law, a motion is a procedural device to bring a limited, contested issue before a court for decision. It is a request to the judge to make a decision about the case. Motions may be made at any point in administrative, criminal or civil proceedings, although that right is regulated by court rules which vary from place to place. The party requesting the motion is the moving party or movant. The party opposing the motion is the nonmoving party or nonmovant.

<span class="mw-page-title-main">Discovery (law)</span> Pretrial procedure in common law countries for obtaining evidence

Discovery, in the law of common law jurisdictions, is a phase of pretrial procedure in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from other parties by means of methods of discovery such as interrogatories, requests for production of documents, requests for admissions and depositions. Discovery can be obtained from nonparties using subpoenas. When a discovery request is objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery. Conversely, a party or nonparty resisting discovery can seek the assistance of the court by filing a motion for a protective order.

The Federal Rules of Civil Procedure govern civil procedure in United States district courts. They are the companion to the Federal Rules of Criminal Procedure. Rules promulgated by the United States Supreme Court pursuant to the Rules Enabling Act become part of the FRCP unless, within seven months, the United States Congress acts to veto them. The Court's modifications to the rules are usually based upon recommendations from the Judicial Conference of the United States, the federal judiciary's internal policy-making body.

The Private Securities Litigation Reform Act of 1995, Pub. L.Tooltip Public Law  104–67 (text)(PDF), 109 Stat. 737 ("PSLRA") implemented several substantive changes in the United States that have affected certain cases brought under the federal securities laws, including changes related to pleading, discovery, liability, class representation, and awards fees and expenses.

A non-suit or nonsuit is a legal procedure. A plaintiff drops his or her suit, under certain circumstances that do not prevent another action being brought later on the same facts.

Voluntary dismissal is termination of a lawsuit by voluntary request of the plaintiff. A voluntary dismissal with prejudice is the modern descendant of the common law procedure known as retraxit.

In law, a joinder is the joining of two or more legal issues together. Procedurally, a joinder allows multiple issues to be heard in one hearing or trial and occurs if the issues or parties involved overlap sufficiently to make the process more efficient or fairer. That helps courts avoid hearing the same facts multiple times or seeing the same parties return to court separately for each of their legal disputes. The term is also used in the realm of contracts to describe the joining of new parties to an existing agreement.

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), was a decision of the Supreme Court of the United States involving antitrust law and civil procedure. Authored by Justice David Souter, it established that parallel conduct, absent evidence of agreement, is insufficient to sustain an antitrust action under Section 1 of the Sherman Act. It also heightened the pleading requirement for federal civil cases by requiring for plaintiffs to include enough facts in their complaint to make it plausible, not merely possible or conceivable, that they will be able to prove facts to support their claims. The latter change in the law has been met with a great deal of controversy in legal circles, as evidenced by the dissenting opinion from Justice John Paul Stevens.

Legal practice is sometimes used to distinguish the body of judicial or administrative precedents, rules, policies, customs, and doctrines from legislative enactments such as statutes and constitutions which might be called "laws" in the strict sense of being commands to the general public, rather than only to a set of parties.

The Virginia Circuit Courts are the state trial courts of general jurisdiction in the Commonwealth of Virginia. The Circuit Courts have jurisdiction to hear civil and criminal cases. For civil cases, the courts have authority to try cases with an amount in controversy of more than $4,500 and have exclusive original jurisdiction over claims for more than $25,000. In criminal matters, the Circuit Courts are the trial courts for all felony charges and for misdemeanors originally charged there. The Circuit Courts also have appellate jurisdiction for any case from the Virginia General District Courts claiming more than $50, which are tried de novo in the Circuit Courts.

<i>Landeros v. Flood</i> Court case in California

Landeros v. Flood was a 1976 court case in the state of California involving child abuse and alleged medical malpractice.

Civil procedure in the United States consists of rules that govern civil actions in the federal, state, and territorial court systems, and is distinct from the rules that govern criminal actions. Like much of American law, civil procedure is not reserved to the federal government in its Constitution. As a result, each state is free to operate its own system of civil procedure independent of her sister states and the federal court system.

Civil discovery under United States federal law is wide-ranging and can involve any material which is relevant to the case except information which is privileged, information which is the work product of the opposing party, or certain kinds of expert opinions. Electronic discovery or "e-discovery" is used when the material is stored on electronic media.

Pleading in United States Federal courts is governed by the Federal Rules of Civil Procedure.

<span class="mw-page-title-main">California Code of Civil Procedure</span> Codification of the law of civil procedure in the U.S. state of California

The California Code of Civil Procedure is a California code enacted by the California State Legislature in March 1872 as the general codification of the law of civil procedure in the U.S. state of California, along with the three other original Codes. It contains most California statutes that govern the filing and litigation of lawsuits in the Superior Courts of California, as well as legal notices that must be given in a variety of circumstances. It also includes statutes of limitations that control the period of time during which a lawsuit may be commenced. The Code originally governed the legal profession, but those were later moved to the Business and Professions Code.

References

  1. ↑ Pyle, Ransford C.; Bast, Carol M. (2017). Foundations of Law: Cases, Commentary and Ethics (6th ed.). Boston: Cengage Learning. p. 183. ISBN   9781305856387 . Retrieved 1 November 2021.
  2. ↑ Ohio Rule of Civil Procedure 7(C) ("Demurrers shall not be used").
  3. ↑ California Code of Civil Procedure Section 430.10.
  4. ↑ Code of Virginia Section 8.01-273.
  5. ↑ Hensler v. City of Glendale(1994) 8 Cal.4th 1
  6. ↑ Goodman v. Kennedy (1976) 18 Cal.3d 335
  7. ↑ In re Fred J. (1979) 89 Cal.App.3d 168
  8. ↑ California Rules of Court, rule 5.74(b)(2).
  9. ↑ 9 WITKIN, California Procedure (5th), Appeal, Section 154 and 5 WITKIN, California Procedure (5th), Pleading, Section 997.
  10. ↑ Pa. R.C.P. 1028
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.