demurrer

 

Civil Procedure in the U.S.
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In common law civil procedure, a demurrer is a pleading by the defendant that contests the legal sufficiency of the complaint without admitting or denying the allegations therein. Demurs are usually filed at the beginning of a case. It is filed before the answer and can be characterized as the defendant’s way of saying “so what?” after reading a plaintiff's complaint.

The complaint implicitly or explicitly asserts or presumes the court has jurisdiction to decide the issue and grant the relief sought. The demurrer challenges the prosecution to prove that jurisdiction, putting the burden of proof on him. Historically, 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 existed in criminal law procedure, but today is largely obsolete or abolished.

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. Subject to very few exceptions, the Judge cannot rule on a demurrer based on the Judge's perception of a plaintiff's credibility.

Overview

Civil cases

A demurrer is a paper most commonly filed by a defendant in response to a complaint filed by the plaintiff (a plaintiff may demur to a defendant’s answer to a complaint or the defendant's affirmative defenses, but this is uncommon). Sidenote: technically a "demurrer" is NOT a motion. One does not file a motion for demurrer nor move to demur. Despite this, most lawyers erroneously refer to a demurrer as a motion.

In lay terms, if a judge sustains a demurrer, he or she is saying so what to the causes of action or claims alleged in a complaint. In other words, the judge is saying I have read your complaint, but I don't see a valid claim or claims. If the defendant "wins" the demurrer, it will not have to file an answer to the complaint.

In legal terms, a demurrer attacks or responds to the legal sufficiency of the complaint. The demurring defendant asserts that the complaint does not amount to a legally valid claim even if the factual allegations contained in the complaint 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 in a complaint should 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.

Besides policing poorly written or technically deficient complaints, demurrers may move to dismiss the entire complaint or individual claims in which the stated causes of action are not supported or recognized by law. For example, 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.

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. The judge rules on whether the facts stated or alleged in the complaint, if true, constitute a sufficient cause of action warranting the case proceeding to litigation.

If a judge sustains a demurrer, he or she may sustain it "with prejudice" or "without prejudice." With prejudice means the plaintiff CANNOT file a corrected complaint. If the demurrer is granted without prejudice, the plaintiff may correct errors by rewriting the complaint and filing the amended complaint. Demurrers granted with prejudice are rare and reserved for when the judge has determined that the plaintiff cannot cure or fix the complaint by rewriting or amending it.

Because a plaintiff can correct errors by amending the complaint, technical or drafting errors are often dealt with by the demurring lawyer sending a letter to plaintiff counsel. The letter details the errors and typically providing plaintiff counsel the opportunity to file acorrected complaint. Defense counsel often do this rather filing a demurrer because many courts require this informal resolution procedure before a party files a demurrer.

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 unmeritorious claims need to be expeditiously dismissed.

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

In order to have an unmeritorious 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.

However, it has been argued^[1] that demurrer is one of the unenumerated rights protected by the Ninth Amendment, and by the Seventh Amendment clause "according to the rules of the common law", which included demurrer as a right that preceded the Constitution.

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.

In contrast, in Texas and Ohio, however demurrers are specifically prohibited.^[2]

References

1. ^ Presumption of Nonauthority and Unenumerated Rights, by Jon Roland
2. ^ Texas Rule of Civil Procedure 90 (2006) (“General demurrers shall not be used ——”); Ohio Rule of Civil Procedure 7(C) ("Demurrers shall not be used").

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