Demurrer
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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. It is filed before the answer and can be characterized as the defendant’s way of asking: “so what?”
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[edit] Overview
A demurrer is a motion typically filed by a defendant in response to a complaint filed by the plaintiff (a plaintiff may also demur to a defendant’s answer or affirmative defenses, but this is uncommon). A demurrer attacks or responds to the legal sufficiency of the complaint without having to answer its factual allegations. In other words, the demurring party asserts that the complaint would not amount to a legally valid claim even if the factual allegations were 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 all 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 grant it either with prejudice or without prejudice. If the demurrer is granted without prejudice, the other party may correct errors and refile the complaint. For this reason, technical errors are often dealt with by the defendant’s counsel simply pointing out the error rather than formally filing a demurrer, and indeed some courts require this as a first step and only permit a demurrer to be filed if the parties cannot reach an agreement on the matter. Demurrers granted with prejudice are rarer, and reserved for when the judge has determined that the plaintiff’s complaint lacks any legal merit even if the stated facts are true.
[edit] 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.
[edit] State courts of the United States
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, however demurrers are specifically prohibited. See Texas Rule of Civil Procedure 90 (2006) (“General demurrers shall not be used ——”).
[edit] 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== - 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). - - For more about the above procedures, please see the relevant articles. - -
