The Demurrer and the Motion To Strike are two distinct legal tools used to challenge pleadings in American courts. Understanding how each device works, the standards courts apply, and the procedural requirements helps legal practitioners choose the right path and improve the chances of a favorable ruling. This article explains the key differences, when each should be used, and practical considerations for filing and responding to these motions.
What Is A Demurrer?
A demurrer is a pleading device used to challenge the legal sufficiency of a complaint or petition. It argues that, even if all the facts alleged are true, they do not state a claim upon which relief can be granted. Demurrers address the adequacy of the legal theories, not the factual details. In many jurisdictions, demurrers test whether the plaintiff has alleged every essential element of the claim and whether the claim is barred by law or public policy. A successful demurrer can lead to dismissal, often with or without leave to amend the complaint.
What Is A Motion To Strike?
A Motion To Strike targets specific material within a pleading rather than the entire pleading. It seeks to remove improper, redundant, immaterial, or scandalous allegations, or to excise nonessential claims, defenses, or evidence. The aim is not to defeat the entire case but to ensure the pleadings conform to procedural rules and substantive law. In many jurisdictions, a motion to strike can be used early in the case and is a common tool for eliminating unfounded or prejudicial material from pleadings or exhibits.
Key Differences In Purpose And Scope
Scope: A demurrer challenges the entire complaint’s viability as a legal claim; a motion to strike targets discrete portions within a pleading. Standard: Demurrers test legal sufficiency of claims under governing statutes and case law; motions to strike test whether specific material should be removed under rules governing pleadings and evidence. Outcome: A successful demurrer can dismiss a claim or the entire complaint, occasionally with leave to amend. A successful motion to strike typically results in striking the problematic material, potentially leaving the rest intact.
Timing: Demurrers are often filed after a complaint is served and pleadings are open to amendment periods. Motions to strike are usually filed after a party has answered or in response to a complaint, depending on jurisdiction. Use: Demurrers are used to challenge the sufficiency of the claims; motions to strike curb improper statements, evidence, or language that could prejudice proceedings.
When To Use Each Tool
Use a demurrer when the core claim fails as a matter of law due to missing elements, improper theory, or a bar under statute of limitations, res judicata, or other public policy concerns. This tool is appropriate when the complaint itself is defective in form or substance. Use a motion to strike when the problem lies with particular sentences, paragraphs, or exhibits that are irrelevant, inflammatory, legally deficient, or prejudicial and do not require dismissing the entire case.
Procedural Considerations
Demurrer procedures vary by state. Some jurisdictions require the court to accept the complaint’s facts as true for purposes of the demurrer, then determine whether those facts establish a legally actionable claim. Others allow more rigorous fact testing. Motions to strike are governed by pleading rules that limit or define prejudicial or improper material. In federal courts, parties typically rely on Rule 12(b)(6) for failure to state a claim rather than a traditional demurrer, and Rule 12(f) to strike immaterial or scandalous matter.
Practical Examples
- Demurrer: A plaintiff sues for breach of contract, but the complaint alleges a contract that is void due to illegality. A demurrer can challenge the viability of the contract claim as a matter of law.
- Motion To Strike: A complaint includes a paragraph asserting damages that are not recoverable under the governing contract and cites improper punitive damages language. A motion to strike can remove that improper relief language.
- Demurrer With Leave To Amend: A court sustains a demurrer but grants leave to amend, signaling that the plaintiff may correct a pleading deficiency.
- Motion To Strike Exhibits: A defendant may move to strike an attached exhibit that is hearsay or not properly authenticated.
Standards Courts Apply
Courts apply specific legal standards to determine sufficiency of a claim or appropriateness of striking material. For demurrers, the court analyzes whether, assuming the facts plead are true, the claim provides a legal remedy. For motions to strike, the court evaluates whether the challenged material is immaterial, impertinent, scandalous, or redundant, or whether it would cause prejudice or confusion if left in the record. Jurisdictions may require a showing of prejudice before granting a motion to strike.
Lifespan Of The Pleading Challenge
The life cycle of a demurrer or a motion to strike often depends on case strategy and court calendar. A demurrer can slim down the issues at stake, avoid discovery on unfounded claims, and push for early resolution. A motion to strike can refine the pleadings, reduce the scope of evidence, and limit potential damages or prejudicial material. In both cases, timely filing and clear, well-supported arguments improve the likelihood of a favorable ruling.
Common Pitfalls To Avoid
- Overlooking jurisdictional differences between state and federal practice.
- Misapplying standards, such as testing factual disputes in a demurrer where the court should accept alleged facts as true.
- Failing to specify the exact material to strike or failing to identify the specific defects in the claims for a demurrer.
- Not preserving issues for appeal or failing to request leave to amend when required.
- Relying on evidence beyond the pleadings for a demurrer, which should generally stay within the pleadings’ scope.
Tips For Practitioners
- Clearly distinguish between claims that fail as a matter of law and material that should be struck as immaterial or prejudicial.
- Provide concise, jurisdiction-specific authorities to support the motion or demurrer.
- Anticipate potential amendments and consider whether relief with leave to amend is appropriate.
- Combine a demurrer with a motion to strike when both issues arise: challenge the sufficiency of claims while removing improper material.
- Prepare alternative strategies in case the court denies the motion or requires amendment.