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in the United States
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.
Typically, the defendant in a case will demur to the complaint, but it is also possible for plaintiff to demur to an answer. The demurrer challenges the legal sufficiency of a claim, cause of action, or to the defenses set forth in an answer. If a cause of action in a complaint does not state a cognizable claim (e.g., the claim is nonsense) or if it does not state all the required elements, then the challenged cause of action or possibly the entire complaint can be "thrown out" with a demurrer 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.
At common law, a demurrer was the pleading through which a defendant would challenge legal sufficiency of a complaint in criminal or civil cases, but today the pleading has been discontinued in many jurisdictions, including the United Kingdom and the U.S. federal court system (though some state jurisdictions, including California, Georgia 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.
An important distinction about a demurrer is that the party filing the demurrer is not allowed to challenge the facts alleged in the complaint, nor can a demurrer contest the ultimate merits of a case or claim. For example, where a complaint alleges the defendant "drove through a red traffic light," the demurring party cannot attach evidence to the demurrer (e.g., a photograph) showing the traffic signal was green. This "no-evidence-on-a-demurrer rule" is manifested in the law. Specifically, when ruling on a demurrer a judge is required to assume as true or proved all material facts alleged in the complaint, even if those facts appear fabrications by the complainant or easily disproved during litigation of the case.
The sole exception to this no-evidence rule is that a judge may take judicial notice of specified narrow categories of facts or documents (such as public records) that either contradict the face of the complaint or are material facts not subject to challenge. For example, if the complaint alleges that an event occurred on a specified date and that date establishes on the face of the complaint that the party's filing was too late (beyond the applicable statute of limitations), a judge can take judicial notice of a standard Gregorian calendar, calculate the difference between the present date and the date the complaint alleges a wrongful act occurred, and determine if the complaint was timely filed. Then the judge can sustain (rule in favor of) a demurrer on the basis that the complaint's date-related allegations indicate it was filed too late ("the statute of limitations has run"), unless the plaintiff can show a typographical error (a so-called "scrivener's error") occurred in the drafting of the complaint.
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 where 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. 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 replying 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 plaintiffs sued a neighbor for negligence, asserting that the neighbor owed them a duty to assist in protecting against a burglary at the plaintiffs' home, most jurisdictions would dismiss this claim because a neighbor has no legal duty to protect other neighbors 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 (while there may be claims for damages on a breach of promise to marry, e.g., U.S. courts are not going to force someone to marry another).
Because a demurrer challenges 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 someone who could prove their spouse was sleeping with another could sue the spouse's lover for alienation of affections. Most states have abolished this cause of action, so such a complaint would be dismissed.
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, in some jurisdictions, said to be "at issue" (because there are now a complaint and answer on file opposing each other), 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, sometimes termed "leave to amend", the plaintiff may correct errors filing a corrected, 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 the plaintiff's lawyer. Such letters detail the errors and typically offer plaintiff's counsel the opportunity to file a corrected complaint (an "amended 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 taking up the court's time when in all likelihood the offending party by law will be given the opportunity to "repair" the offending complaint.
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 (re-written) 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.
In order 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 (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).
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 came to realize 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 in reality like one.
Having accomplished its task of purging the demurrer from federal courts, Rule 7(c) was deemed obsolete by the Advisory Committee on Civil Rules during the latest revision cycle for the FRCP (which took place from 2002 to 2007). It was therefore deleted from the version of the FRCP which went into effect on December 1, 2007.
A majority of U.S. States (about 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. Thus, for example, in Ohio demurrers are specifically prohibited.
However, a demurrer can still be made by the defendant in a minority of U.S. state court systems. Demurrers are still used in California and Virginia 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. 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. 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. Also in California, a demurrer is not said to be "granted", but is said to be "sustained". 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.
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).
- Ohio Rule of Civil Procedure 7(C) ("Demurrers shall not be used").
- California Code of Civil Procedure Section 430.10.
- Code of Virginia Section 8.01-273.
- Hensler v. City of Glendale(1994) 8 Cal.4th 1
- Goodman v. Kennedy (1976) 18 Cal.3d 335
- In re Fred J. (1979) 89 Cal.App.3d 168
- 9 WITKIN, California Procedure (5th), Appeal, Section 154 and 5 WITKIN, California Procedure (5th), Pleading, Section 997.