Motion for Failure to State a Claim in Texas

What Is a Motion for Failure to State a Claim?

Background

Texas law allows the dismissal of causes of action that have no basis in law or fact through the filing of a motion to dismiss. (Tex. R. Civ. P. 91(a).) Therefore, to challenge a party’s failure to state a cause of action, one must file a motion to dismiss. (Id.) A motion to dismiss is the proper way to attack the opposing party’s pleading deficiencies, not a summary judgment motion. (In re B.I.V., 870 S.W.2d 12, 13-14 (Tex. 1994) (per curiam); Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983); Tex. Dep't of Corr. v. Herring, 513 S.W.2d 6, 9 (Tex. 1974).)

If a pleading deficiency can be cured by amendment, a summary judgment motion is not proper. (Id.) If summary judgment is granted, nonmovant must raise a complaint that summary judgment was granted without opportunity to amend or it is waived. (San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209-10 (Tex. 1990).)

Additionally, filing a motion to dismiss submits the party to the court’s jurisdiction in proceedings on the motion and is bound by the court’s ruling, including an award of attorney fees and costs against thje party. (Tex. R. Civ. P. 91(a)(8).)

How to Structure the Motion

A party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. (Tex. R. Civ. P. 91(a)(1).) A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. (Id.) A cause of action has no basis in fact if no reasonable person could believe the facts pleaded. (Id.)

A motion to dismiss must identify each cause of action to which it is addressed, and it must state the reasons the cause of action has no basis in law, no basis in fact, or both.(Tex. R. Civ. P. 91(a)(2).)

A motion to dismiss for failure to state a cause of action must be:

filed within 60 days after the first pleading containing the challenged cause of action is served on the movant;
filed at least 21 days before the motion is heard;
granted or denied within 45 days after the motion is filed.

(Tex. R. Civ. P. 91(a)(3).

Each party is entitled to at least 14 days notice of the hearing on the motion to dismiss. (Tex. R. Civ. P. 91(a)(6).) Any response to the motion to dismiss must be filed no later than 7 days before the date of the hearing. (Tex. R. Civ. P. 91(a)(4).)

Timeline

A motion to dismiss filed under rule 91a must be ruled on by the court within 45 days unless the motion, pleading, or cause of action is withdrawn or amended. (Tex. R. Civ. P. 91(a)(5).) If an amended motion is filed in response to an amended cause of action, the court must rule on the motion within 45 days of the filing of the amended motion and the respondent must be given an opportunity to respond to the amended motion. (Id.)

The court may not rule on a motion to dismiss if, at least 3 days before the date of the hearing, the respondent files a nonsuit of the challenged cause of action, or the movant files a withdrawal of the motion. Any response to the motion to dismiss must be filed no later than 7 days before the date of the hearing. (Tex. R. Civ. P. 91(a)(5).) If the respondent amends the challenged cause of action at least 3 days before the date of the hearing, the movant may, before the date of the hearing, file a withdrawal of the motion or an amended motion directed at the amended cause of action. (Id.)

An amended motion restarts the time periods above. (Id.)

Monetary Awards

The court may award all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action to the prevailing party on the motion. (Tex. R. Civ. P. 91(a)(7).)