demurrer

demurrer

[dih-mur-er]

In law, a plea in response to an allegation that admits its truth but also asserts that it is not sufficient as a cause of action. In the U.S., demurrers are no longer used in federal procedure (having been replaced by motions to dismiss or motions for more definite statement) but are still used in some states. A general demurrer challenges the sufficiency of the substance of an allegation, whereas a special demurrer challenges the structure or form of an allegation.

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A demurrer is a legal pleading filed by a party defending against claims or defenses in a lawsuit. The demurrer challenges whether a legal cause of action exists for the facts, as stated by the complaining party. This is referred to as challenging the "legal sufficiency" of a claim, cause of action, or defense. A demurrer is typically filed towards the beginning of a case, before the answer.

At common law, a demurrer was the most common pleading by which a defendant would challenge legal sufficiency in criminal or civil cases, but today is the pleading is abolished in many jurisdictions, including the federal court system (though many large jurisdictions, including California retain the demurrer). 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 is not a challenge to the ultimate merits of a case or claim. When ruling on a demurrer, a judge is required by law to assume as true facts alleged in the complaint, even if those facts would later be challenged. Historically, however, a party filing a demurrer often had to admit the facts in the complaint and waive the right to later challenge those facts.

Overview

Civil cases

A demurrer is most commonly filed by a defendant in response to a complaint filed by the plaintiff. While a plaintiff may demur to a defendant’s answer to a complaint or the defendant's affirmative defenses, this is uncommon.

Technically a "demurrer" is not a motion, but a challenge as of right. One does not file a motion for demurrer nor move the court to demur. Rather, a demurrer asks the court to dismiss an action.

In lay terms, if a judge sustains a demurrer, he or she is saying that the law does not recognize a legal claim for the facts stated by the complaining party.

In legal terms, a demurrer attacks or responds to the legal sufficiency of the complaint. 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. For example, a negligence cause of action must allege that: 1) the defendant owed a duty to the plaintiff; 2) the defendant breached the duty; 3) the breach caused plaintiff injury; and 4) the plaintiff suffered damage. A defendant could demur by saying that the complaint failed to plead one or more of these essential elements.

Demurrers may seek to invoke legal principles that protect certain forms of conduct against legal liability, even if that conduct is suspect or morally dubious. For example, if a plaintiff sued a neighbor for negligence, asserting that he or she was owed a duty by the neighbor to assist in protecting against a burglary at plaintiff's home, most all jurisdictions would dismiss this claims because a neighbor has no legal duty to assist protecting against a burglary. Similarly, a complaint for breach of a promise to marry could be met by a demurrer because the law in most jurisdictions expressly prohibits such claims on public policy grounds.

Because a demurrer challeneges legal sufficiency, a judge could reach different outcomes, on the same facts, in different jurisdictions, if the law between the two states differs. In the United States, if a complaining party sued for libel but failed to assert that the allegedly libelous statement is false, the claim could be dismissed on a demurrer or a motion to dismiss. In the United Kingdom, falsity is not a required element of libel and the analogous request to dismiss would not be sustained.

When a cause of action is abolished, a plaintiff who seeks to allege such a cause could be met with a successful demurrer. For example, for many years a spouse who can prove that his or her spouse is sleeping with another could sue the individual sleeping with his or her spouse for alienation of affection. This cause of action having been abolished in most states, a complaint which states such a cause would be dismissed.

Demurrers are decided by the judge rather than the jury. The judge either grants the demurrer by sustaining it, or denies it by overruling the demurrer. In ruling on a demurrer, the judge is required to accept as true all facts written in a complaint.

If a judge sustains a demurrer, he or she may sustain it "with prejudice" or "without prejudice." With prejudice means the plaintiff cannot file another complaint attempting to fix the insufficiencies of the previous complaint. If the demurrer is granted without prejudice, then the plaintiff has leave to correct errors by rewriting the complaint and filing an amended complaint. Demurrers granted with prejudice are rare and reserved for when the judge determines a plaintiff cannot cure or fix the complaint by rewriting or amending it. Because leave to amend is so liberally granted, a demurrer usually is only filed if a plaintiff refuses to repair a fatally deficient complaint or if the complaint cannot ever be supported by law. Many courts will fine or sanction a party who files a demurrer for improper motive, for example, to harass or intimidate the opposing party.

Because a plaintiff can correct errors by amending the complaint, technical or drafting errors are often dealt with by the defendant's lawyer sending a letter to plaintiff counsel. The letter details the errors and typically offers plaintiff counsel the opportunity to file a corrected complaint. Defense counsel do not send the letter to be nice. Most courts require this informal resolution procedure before a party files a demurrer. This is because judges do not want demurrers filed and taking up the court's time when in all likelihood the offending party must be given the opportunity to "repair" the offending complaint.

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 re-drawn and re-presented to the grand jury or other charging authority. Demurrers and special pleas have been abolished in U.S. federal criminal procedure: an attack on the prosecution's case prior to trial 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.

Firstly, an application on notice can be made for summary judgment in favor of the Defendant. Secondly, the court has power to strike out the Particulars of Claim.

In order to have an 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 (say) four weeks, whereas Summary Judgment is final (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 abolished by Federal Rule of Civil Procedure 7(c) and has been replaced by the Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.

State courts

The demurrer motion can be made by the defendant in most U.S. state court systems. For example, demurrers are still used in California and Virginia state court civil practice. The term preliminary objection is used for a similar procedural device in Pennsylvania state court and governed by Pennsylvania Rule of Civil Procedure 1028(a)(4).

In contrast, however, in Texas and Ohio demurrers are specifically prohibited.

References

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