Motion Spotlight: The Motion to Dismiss and Its Latin American Equivalents

Welcome to Week 3 of IngLesLegal! This week we dive deep into one of the most powerful procedural tools in U.S. litigation: the Motion to Dismiss. We also explore how this mechanism compares to similar tools in Latin American legal systems.

What Is a Motion to Dismiss?

A Motion to Dismiss is a procedural request filed by a defendant asking the court to terminate a case before it proceeds to the merits — that is, before any evidence is examined or any finding of fact is made. It argues that even if everything the plaintiff claims is true, the case should not proceed for legal reasons.

In U.S. federal courts, motions to dismiss are governed primarily by Rule 12(b) of the Federal Rules of Civil Procedure (FRCP), which lists seven grounds for dismissal.

Legal Basis: The Seven Grounds Under Rule 12(b)

12(b)(1) — Lack of subject matter jurisdiction
Spanish: Falta de competencia material / jurisdicción por razón de la materia
The court has no authority to hear this type of case. For example, a purely state-law dispute filed in federal court when there is no diversity or federal question jurisdiction.

12(b)(2) — Lack of personal jurisdiction
Spanish: Falta de competencia personal / jurisdicción sobre la persona
The court has no authority over the defendant personally — for instance, the defendant has no connection to the state where the court sits.

12(b)(3) — Improper venue
Spanish: Foro incorrecto / incompetencia territorial
The case was filed in the wrong geographic location, even if the court has subject matter and personal jurisdiction.

12(b)(4) — Insufficient process
Spanish: Proceso insuficiente / defecto en el proceso
The summons or complaint itself is defective in its form or content.

12(b)(5) — Insufficient service of process
Spanish: Notificación defectuosa / emplazamiento insuficiente
The lawsuit was not properly delivered (served) to the defendant. Even if the summons is correct, if it was handed to the wrong person or served improperly, this defense applies.

12(b)(6) — Failure to state a claim upon which relief can be granted
Spanish: Falta de mérito en la demanda / demanda que no expone una causa de acción válida
This is the most commonly used ground. The plaintiff's complaint, even if all facts are accepted as true, does not legally support any remedy. The claim fails "on its face."

12(b)(7) — Failure to join a party under Rule 19
Spanish: Falta de litisconsorcio necesario / omisión de parte indispensable
A party that is required to be part of the lawsuit (an indispensable party) has not been included, and the case cannot fairly proceed without them.

Standard of Review: The Twombly/Iqbal Plausibility Standard

When ruling on a 12(b)(6) motion, courts do not take everything at face value. Under the landmark cases Bell Atlantic Corp. v. Twombly (2007) and Ashcroft v. Iqbal (2009), a complaint must contain:

• Sufficient factual matter
• Accepted as true
• To state a claim for relief that is plausible on its face

This means conclusory statements — bare legal assertions without factual support — are not enough. The plaintiff must plead "more than labels and conclusions." This standard is known as the plausibility standard or the Twombly/Iqbal standard.

Procedure and Effects

1. The defendant files the motion to dismiss before or instead of filing an Answer.
2. The court may rule based on the pleadings alone (no discovery or evidence).
3. If granted, the case may be dismissed with prejudice (permanently barred) or without prejudice (plaintiff may refile or amend).
4. If denied, the case continues, and the defendant must typically file an Answer.
5. Courts often give plaintiffs leave to amend their complaint before dismissing permanently.

Latin American Equivalents

While no Latin American system has a direct one-to-one equivalent to the U.S. Motion to Dismiss, the following procedural mechanisms serve similar functions:

Colombia
Excepciones previas (Articles 100–102, CGP) — Preliminary exceptions raised before the merits are addressed. Include: lack of jurisdiction, improper venue, lis pendens, and defective demand. Most comparable to 12(b)(1)–(5) grounds.
Similarity to U.S. rule: High for jurisdictional and procedural defects; lower for merits-based dismissal.

Argentina
Excepciones de previo y especial pronunciamiento (Art. 347, CPCCN) — Covers lack of jurisdiction, lis pendens, defective standing, and statute of limitations. The court rules on these before moving to the merits.
Similarity to U.S. rule: High for procedural defects; Argentina lacks a direct equivalent to 12(b)(6).

Chile
Excepciones dilatorias (Art. 303, CPC) — Dilatory exceptions that delay the main case until procedural issues are resolved. Cover incompetence, lis pendens, lack of legal capacity, and defective complaint.
Similarity to U.S. rule: Moderate; primarily procedural, not a merits-based dismissal tool.

Mexico
Excepciones procesales / Excepción de falta de legitimación (Varies by code: Federal CPC, state codes) — Procedural exceptions raised at the answer stage, including lack of standing and improper venue. Some codes allow early dismissal for manifest lack of cause of action (falta de acción).
Similarity to U.S. rule: Moderate; increasing convergence in commercial litigation.

Spain
Declinatoria / Excepciones procesales (Art. 63–65, LEC) — Spain's Civil Procedure Law allows for jurisdictional challenges (declinatoria) and the court may dismiss for lack of standing or procedural defects early in the process. Spanish law also allows inadmisión de la demanda (refusal to admit the complaint) in clear cases.
Similarity to U.S. rule: Moderate to High; Spain's system is the most procedurally developed among civil-law systems shown here.

Key Vocabulary Summary

Motion to Dismiss — Solicitud de desestimación / Excepción de previo pronunciamiento
Subject matter jurisdiction — Competencia material / jurisdicción por razón de la materia
Personal jurisdiction — Competencia personal / jurisdicción sobre la persona del demandado
Venue — Competencia territorial / foro
Service of process — Notificación / emplazamiento
Failure to state a claim — Falta de mérito en la demanda / causa de acción insuficiente
Plausibility standard — Estándar de plausibilidad (Twombly/Iqbal)
With prejudice — Con perjuicio / con efectos de cosa juzgada
Without prejudice — Sin perjuicio / sin efecto de cosa juzgada
Leave to amend — Autorización para enmendar / subsanar la demanda

💡 Tip of the Week: "Dismiss" vs. "Reject" vs. "Deny"

In U.S. legal English, these three words are often confused by Spanish-speaking practitioners:

• To dismiss a case = Desestimar / sobreseer — The court terminates the case, often on procedural or threshold grounds.
• To deny a motion = Denegar una moción — The court refuses to grant the relief requested in a motion (e.g., the Motion to Dismiss is denied, so the case continues).
• To reject a filing = Rechazar un escrito — Often used for administrative rejection (the clerk's office rejects a document for formatting errors). Not typically used by judges on the merits.

So when a judge denies a Motion to Dismiss, the motion itself is rejected — but the case is not dismissed. The opposite of "dismiss" is not "accept" but rather "allow the case to proceed."