Sample Motion to Dismiss: Federal Format with Annotations

A sample motion to dismiss serves as the structural backbone for the most important pretrial filing a defendant can make. The federal format under Rule 12(b) follows a predictable structure: caption, motion, supporting memorandum of law, and proposed order. This guide walks through each section with annotations, explains what to file and what to leave out, and shows the formatting conventions that vary by district.

For the substantive standards, see the motion to dismiss overview and the 12(b)(6) failure-to-state-a-claim guide. This article focuses on form, layout, and what each section must contain to be filed.

The Four Documents

A federal motion to dismiss filing usually consists of:

Notice of Motion (in some districts). A short document setting the hearing date and time, often required under local rules.
Motion to Dismiss. A one-to-two-page document that identifies the parties, cites the rule (FRCP 12(b)), states the grounds, and references the supporting memorandum.
Memorandum of Law in Support. The substantive brief, typically ten to twenty-five pages, applying the law to the complaint's allegations.
Proposed Order. A short document the judge can sign granting the motion, with blanks for the date.

Some districts require a concise statement of issues or a statement of points and authorities; check the local rules and the assigned judge's individual practices before filing.

Caption and Heading Format

Every federal filing starts with the caption identifying the court, parties, case number, judge, and document title. The format is standardized but varies slightly by district:

UNITED STATES DISTRICT COURT
[DISTRICT] DISTRICT OF [STATE]

[PLAINTIFF NAME],                  )
                                   )
            Plaintiff,             )    Case No. [NUMBER]
                                   )    Judge [NAME]
       v.                          )
                                   )    DEFENDANT'S MOTION TO
[DEFENDANT NAME],                  )    DISMISS UNDER FRCP 12(b)(6)
                                   )
            Defendant.             )
___________________________________)

Caption requirements come from Federal Rule 10(a), which requires every pleading to include the court name, title of the action, file number, and a designation as in Rule 7(a). The exact spacing, font, and parenthetical style vary by district; the Northern District of California, for example, uses different conventions than the Southern District of New York.

Section 1: Motion (1-2 pages)

The motion document is short. It identifies the parties, cites Rule 12(b) and the specific grounds, states what relief is sought, and references the supporting memorandum. A typical motion contains:

Caption (per Rule 10(a)).
Title: "Defendant's Motion to Dismiss Under FRCP 12(b)(6)" (or whichever subsections apply).
Introductory paragraph: "Defendant [Name], pursuant to Federal Rule of Civil Procedure 12(b)(6), hereby moves this Court for an order dismissing all claims asserted in Plaintiff's Complaint for failure to state a claim upon which relief can be granted."
Grounds paragraph: brief, one-paragraph summary of why the motion should be granted.
Reference to supporting memorandum: "This motion is supported by the accompanying Memorandum of Law in Support, the pleadings and papers on file, and any oral argument the Court may permit."
Signature block, contact information, and certificate of service.

The motion is not the place for detailed argument. Courts read the memorandum.

Section 2: Memorandum of Law (10-25 pages)

The memorandum is where the brief lives. A standard structure runs:

Introduction (1-2 pages). Frame the case in the defendant's favor: who the parties are, what the plaintiff alleges, and why those allegations fail as a matter of law. Persuasion starts here.
Statement of Facts (1-3 pages). Recite the well-pleaded facts from the complaint. Do not introduce facts outside the pleadings (that converts the motion to summary judgment).
Legal Standard (1 page). Recite the Twombly/Iqbal plausibility standard with citations. Add the two-step analytical framework: disregard conclusory allegations, then assess plausibility of the remainder.
Argument (5-15 pages). The substantive analysis. Address each claim or each disputed element separately, with point headings. Apply the law to the complaint's allegations. Cite controlling circuit law.
Conclusion (1 paragraph). "For the foregoing reasons, the Court should dismiss Plaintiff's Complaint with prejudice." Or with leave to amend if dismissal with prejudice is unrealistic.

Most districts cap the memorandum at twenty-five pages absent leave of court. Many judges have stricter individual limits (fifteen or twenty pages). Check before drafting.

Section 3: Argument Structure

The argument section is where the motion wins or loses. The strongest structure addresses each element of each claim with a point heading and a focused legal-and-factual analysis. For example:

I. PLAINTIFF FAILS TO PLAUSIBLY ALLEGE BREACH OF CONTRACT.

   A. Plaintiff Does Not Allege a Valid Contract.
   B. Plaintiff Does Not Allege Performance by Plaintiff.
   C. Plaintiff Does Not Allege Breach by Defendant.
   D. Plaintiff Does Not Allege Damages Caused by the Alleged Breach.

II. PLAINTIFF'S FRAUD CLAIM FAILS UNDER RULE 9(b).

   A. Plaintiff Does Not Plead the Who, What, When, Where, or How.
   B. Plaintiff Does Not Plausibly Allege Scienter.

Point headings should be argumentative (state the conclusion), not descriptive. "Plaintiff fails to plausibly allege breach" is better than "The breach element."

Section 4: Proposed Order

The proposed order is a one-page document the judge can sign granting the motion. It usually contains:

Caption.
Title: "[Proposed] Order Granting Defendant's Motion to Dismiss."
One paragraph reciting that the court has considered the motion, opposition, and reply, and finds that the motion should be granted.
Operative paragraphs: "IT IS HEREBY ORDERED that Defendant's Motion to Dismiss is GRANTED. Plaintiff's Complaint is DISMISSED [with/without] prejudice."
Signature line for the judge with date and "United States District Judge" or magistrate title.

Some judges prefer not to receive proposed orders; check individual practices before filing.

Filing Logistics

Federal courts use CM/ECF (Case Management/Electronic Case Files) for filing. The motion, memorandum, and proposed order are uploaded as separate PDF documents. Most judges require chambers copies (paper copies delivered to chambers) for any motion over a certain page count, often twenty pages. Check local rules and individual practices.

The certificate of service is automatic in CM/ECF for parties who have appeared, but pro se filers must serve nonparties manually and file a separate certificate of service.

What to Avoid

Attaching exhibits not incorporated in the complaint. Converts the motion to summary judgment.
Arguing facts. The court accepts the plaintiff's facts as true. Save factual disputes for summary judgment.
Boilerplate. Generic recitations of Twombly without applying the standard to specific allegations rarely persuade.
Exceeding page limits. Local rules and individual practices vary; an overlength brief without leave is grounds for striking.
Ignoring waiver rules. Personal jurisdiction, venue, and service defenses are waived if not raised in the first responsive pleading or motion.

Get a Sample That Wins

The free Rule 12(b) motion template includes the caption, motion, memorandum framework, and proposed order in fillable Word and PDF formats. For high-stakes cases, the attorney-drafted motion to dismiss service produces a fully briefed motion with citations to Twombly, Iqbal, and recent jurisdiction-specific decisions, ready for filing in your court.

motion to dismiss strategy
12(b)(6) failure-to-state-a-claim motion
motion to dismiss vs. summary judgment posture
demurrer vs. motion to dismiss in California
with vs. without prejudice differences

Frequently Asked Questions

What should a sample motion to dismiss include?

A sample motion to dismiss should include a caption, an introduction stating the relief requested, a statement of facts limited to the four corners of the complaint, a legal standard section reciting the Rule 12(b)(6) Iqbal-Twombly framework, an argument section addressing each ground for dismissal, a conclusion, a proposed order, and a certificate of service. Local rules often add formatting requirements, page limits, and a meet-and-confer certification.

How long is a typical motion to dismiss brief?

A typical motion to dismiss brief in federal district court is 15 to 25 pages, though local rules and judges' chambers rules often impose hard caps (commonly 25 pages or 7,500 words for the moving brief, with shorter limits on the reply). Complex multi-claim motions can run longer with leave of court. The brief should be long enough to address each ground with citation to controlling authority but disciplined enough to keep the panel's attention.

How do you cite controlling authority in a motion to dismiss?

Cite the controlling court of appeals decision for the circuit, then the Supreme Court when applicable. Within the Bluebook framework, parallel citations are usually unnecessary in federal court. Use signal citations to indicate weight: 'see' for direct support, 'see also' for additional support, 'cf.' for analogous reasoning. String cites should be short, with the strongest authority first. Pinpoint cites to the specific page that supports the proposition are mandatory.

Should a motion to dismiss include a memorandum of law?

Most jurisdictions require a separate memorandum of law (or memorandum in support) to accompany a motion to dismiss. The motion itself is short, requesting specific relief, while the memorandum contains the legal analysis. Federal Local Rule 7.1 in many districts requires the memorandum, and judges' chambers rules often impose page limits separate from the motion. Failure to file a supporting memorandum can result to recap, denial.