Demurrer

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. Demurrers are
usually filed at the beginning of a case. It is filed before the answer and can be characterized as the
defendant’s way of saying “so what?” after reading a plaintiff's complaint.
A demurrer existed in criminal law procedure, but today is largely obsolete or abolished. The
complaint implicitly or explicitly asserts or presumes the court has jurisdiction to decide the issue
and grant the relief sought. The demurrer challenges the prosecution to prove that jurisdiction,
putting the burden of proof on him. Historically, demurrer was considered a common law due process
right, to be heard and decided before the defendant was required to plead "not guilty", or make any
other pleading in response, without having to admit or deny any of the facts alleged.
A demurrer is not a challenge to the ultimate merits of a case or claim. When ruling on a demurrer, a
judge is required by law to assume as true facts alleged in the complaint. Subject to very few
exceptions, the judge cannot rule on a demurrer based on the judge's perception of a plaintiff's
credibility.

Overview

Civil cases
A demurrer is a paper most commonly filed by a defendant in response to a complaint filed by the
plaintiff (a plaintiff may demur to a defendant’s answer to a complaint or the defendant's affirmative
defenses, but this is uncommon). Sidenote: Technically a "demurrer" is NOT a motion. One does not
file a motion for demurrer nor move to demur. Despite this, most lawyers erroneously refer to a
demurrer as a motion. A demurrer is typically filed at the beginning of a case, before anything else
happens in a case. This is because the challenge is attacking the complaint, the paper first filed in a
case to get the lawsuit started.

In lay terms, if a judge sustains a demurrer, he or she is saying so what to the causes of action or
claims alleged in a complaint. In other words, the judge is saying I have read your complaint, but I
don't see a valid claim or claims. If the defendant "wins" the demurrer, it will not have to file an
answer to the complaint.

In legal terms, a demurrer attacks or responds to the legal sufficiency of the complaint. The
demurring defendant asserts that the complaint does not amount to a legally valid claim even if the
factual allegations contained in the complaint are accepted as 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 more 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, assumed to be true, constitute a cause of action [or claim] warranting
continued litigation.

If a judge sustains a demurrer, he or she may sustain it "with prejudice" or "without prejudice." With
prejudice means the plaintiff CANNOT file a corrected complaint. If the demurrer is granted without
prejudice, the plaintiff may correct errors by rewriting the complaint and filing an amended complaint.
Demurrers granted with prejudice are rare and reserved for when the judge determines a plaintiff
cannot cure or fix the complaint by rewriting or amending it. A plaintiff refusing to repair a fatally
deficient complaint or if the complaint cannot ever be supported by law are the only reasons why a
demurrer should be filed. Many courts will fine or sanction a party who files a demurrer for improper
motive, for example, to harass or intimidate the opposing party.

Because a plaintiff can correct errors by amending the complaint, technical or drafting errors are
often dealt with by the defendant's lawyer sending a letter to plaintiff counsel. The letter details the
errors and typically offers plaintiff counsel the opportunity to file a corrected complaint. Defense
counsel do not send the letter to be nice. Most courts require this informal resolution procedure
before a party files a demurrer. This is because judges do not want demurrers filed and taking up the
court's time when in all likelihood the offending party must be given the opportunity to "repair" the
offending complaint.

State courts
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 and governed by
Pennsylvania Rule of Civil Procedure 1028(a)(4).
In contrast, however, in Texas and Ohio demurrers are specifically prohibited.


                                               
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