Motion to Dismiss
A request to terminate a case (or specific claims) before merits discovery and trial, on grounds that the pleading fails to state a viable claim or that some other procedural defect bars the action. Texas TRCP 91a (no basis in law or fact) and federal Rule 12(b) provide overlapping but distinct mechanisms.
A motion to dismiss is a request to the court to terminate a case (or specific claims) before merits discovery and trial, on grounds that the pleading fails to state a viable claim or that some other procedural defect bars the action. Texas and federal practice provide overlapping but distinct dismissal mechanisms.
Texas Rule 91a, dismissal of baseless claims
Texas's TRCP 91a, adopted in 2013, allows a motion to dismiss claims that have "no basis in law or fact." A claim has no basis in law if the allegations, taken as true, do not entitle the claimant to the relief sought. A claim has no basis in fact if no reasonable person could believe the facts pleaded.
The 91a motion is decided based on the pleadings alone, no evidence may be considered. The motion must be filed within 60 days of service of the challenged pleading and decided within 45 days of filing. Successful 91a movants are entitled to attorney's fees.
Federal Rule 12(b) motions
Federal Rule 12(b) provides seven grounds for pre-answer dismissal: (1) lack of subject matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a necessary party. Rule 12(b)(6) (failure to state a claim) is the most-used.
Twombly/Iqbal plausibility standard
Under Twombly and Iqbal, federal Rule 12(b)(6) motions are evaluated against a plausibility standard, the complaint must contain "enough facts to state a claim to relief that is plausible on its face," not merely possible. Conclusory allegations and threadbare recitals of the elements of a claim do not survive.
Other Texas dismissal mechanisms
Plea to the jurisdiction: challenges the court's subject matter jurisdiction; not waivable.
Special exceptions (TRCP 90–91): challenge defects in pleadings that are not fatal but require amendment.
Texas's TRCP 91a is more procedurally favorable to defendants than the pre-2013 special-exception practice, but the substantive standard ("no basis in law or fact") remains less stringent than federal Rule 12(b)(6) plausibility. Strategic defendants in Texas often consider whether removal to federal court, and the resulting Twombly/Iqbal exposure, is worth pursuing.