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What Is A Demurrer (Explained: All You Need To Know)

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What is a Demurrer in law?

What’s important to know about this concept?

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Let me explain to you what Demurrer means and how it works!

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What Is A Demurrer

A demurrer refers to the challenging of a complaint on the basis that it does not contain sufficient facts to constitute a cause of action.

In other words, when a plaintiff assets facts that do not give rise to a claim (even if the facts were assumed to be true), the court can dismiss the claim on the basis of a demurrer challenge.

For example, if the plaintiff files a claim for damages against another party for personal injury but the complaint does not include any facts relating to the injury, the duty of care, and damages, then the court can immediately dismiss the action.

Demurrer comes from the word “demur” which means “to object”.

As such, demurrer means “to make an objection” to something.

It’s important to note that a demurrer is not a type of motion, rather it’s a type of pleading.

In essence, to demur is to formally object to a pleading requesting the court to dismiss the pleading for lack of legal sufficiency.

A demurrer challenge can be filed by a defendant against a plaintiff’s claim or by a nonmoving party against a moving party’s pleadings.

Keep reading as I will further break down the meaning of demurrer and tell you how it works.

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How Demurrer Works

The main objective of a demurrer is to challenge the legal sufficiency of a claim or pleading.

A defendant can demur the plaintiff’s pleadings as much as the plaintiff can demur a defendant’s answer.

When a party challenges the legal sufficiency of the opposing party’s pleadings, a demurrer will generally assume that all the facts alleged by the party in its pleading are true and the court will need to assess if those facts can give rise to a claim.

In addition, the party challenging the legal sufficiency of the other party’s pleadings cannot present additional evidence.

The court must assess the legal sufficiency of the moving party’s pleadings by strictly assessing what’s contained in the pleadings.

Assuming that all of the facts, evidence, and material presented by the moving party a pleading, the court must see if it’s likely that the matter can be easily disproved.

For example, if a person files a claim against another person alleging that the person gave him a long stare in the eyes, the court will dismiss this claim as even if it were true, it does not give rise to a valid claim.

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When To File A Demurrer

Generally speaking, a party can demur another party’s pleadings at any time.

However, in most cases, a defendant will demur a plaintiff’s complaint so the matter can be quickly thrown out of court.

The plaintiff can also demur a defendant’s answer or affirmative defense.

If the court considers that a plaintiff’s complaint does not state a claim and is insufficient, rejecting the complaint will put an end to the lawsuit.

If the court considers that a defendant’s answer or affirmative defense is legally insufficient, rejecting the defendant’s pleading will not lead to the end of the lawsuit.

However, the plaintiff will typically then move for a summary judgment or can further attack some of the defendant’s positions.

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Demurrer Legal Basis

The demurrer is a type of pleading that was developed under common law where a defendant challenged the legal sufficiency of a claim.

In the United States, the Federal Rules of Civil Procedures adopted in 1938 abolished the demurrer replacing it with the motion to dismiss for failure to state a claim under Rule 12(b)(6).

Also, most US states have also abolished the demurrer replacing this common law concept with a motion to dismiss for failure to state a claim.

As a result, litigants will need to file a motion to dismiss for failure to state a claim to have the court reject the other party’s pleadings.

However, some states still use demurrers such as California and Virginia.

It’s important that you file a formal objection to a pleading for lack of legal sufficiency by observing the applicable rules of civil procedure.

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Demurrer Example

Let’s look at a demurrer example to better understand the concept.

John files a lawsuit against Mary for her failure to make a payment for services rendered.

When Mary receives John’s complaint, she notices that John alleges that she owes him $5,000.

However, John does not have any factual allegations relating to the existence of a written, oral, or implicit contract, does not state what services he rendered, nor does he include an invoice showing how much is owed.

Mary decides to challenge the legal sufficiency of John’s complaint by demurring the pleading.

The court looks at John’s complaint and by assuming that all the facts alleged are true, it assesses if it’s legally sufficient to support his claim.

In this example, the court finds that John’s complaint should be dismissed as it does not assert any legal contractual basis for his claim, does not show services were rendered, nor has any supporting evidence to show how much is owed.

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Takeaways 

So there you have it folks!

What does demurrer mean?

In a nutshell, demurrer refers to an objection against the legal sufficiency of a pleading.

The idea is to have the court assess the pleading on the face of the document and determine if it’s legally sufficient.

The court will look at the pleading, assume all the alleged facts are true, and determine whether or not it can lead to a successful claim on its merits.

The court may choose to reject the objection file, accept the objection and authorize the other party to amend its procedures, or can reject the pleading altogether.

In the United States, most states and the federal courts no longer use the demurrer as it has expressly been replaced by the motion to dismiss for failure to state a claim under their rules of civil procedure.

Some states will use the demurrer originating from the common law.

Now that you know what demurrer means and how it works, good luck with your research!

Initial conference
Request for admission
Request for production
Default judgment
Summary judgment 
Voir dire
Burden of proof
Impleader meaning
Interpleader meaning 
Affirmative defense
Author

Editorial Staffhttps://lawyer.zone
Hello Nation! I'm a lawyer and passionate about law. I've practiced law in a boutique law firm, worked in a multi-national organization and as in-house counsel. I've been around the block! On this blog, I provide you with golden nuggets of information about lawyers, attorneys, the law and legal theories. Enjoy!

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