What Does Demurrer Mean in Law?
A Demurrer in State Court is Similar to a Motion to Dismiss for Failure to State a Claim in Federal Court
The defendant has a limited period to respond to the factual allegations and claims pleaded in the civil complaint you file with the court.
Under Rule 3:8(A) of the Rules of the Supreme Court of Virginia, the defendant may file the following responsive pleadings: an answer, demurrer, plea in bar, motion to dismiss, request for a bill of particulars, motion craving oyer, or a motion asserting any preliminary defense under Code Section 8.01-276.
This article discusses the demurrer, a responsive pleading that challenges the legal sufficiency of your complaint. If granted, the demurrer terminates your lawsuit before pretrial discovery starts, depriving you of your day in court.
Keep reading for an overview of the demurrer statute and case law interpreting this pleading and ways to strengthen your complaint or respond when the defendant interposes a demurrer in your personal injury case.
Then call us for help with your product liability or car accident case: 804-251-1620 or 757-810-5614.
What is a Demurrer?
A demurrer is a pleading challenging whether the civil complaint states a cause of action (a claim) for which the law provides a remedy. Its purpose is to eliminate the need and time for a trial when the plaintiff cannot win the action as a matter of law.
The demurrer says, “You cannot satisfy the elements of the cause of action claimed and win the lawsuit even if you prove every fact alleged in the complaint.”
Typically, the demurrer focuses on the plaintiff’s failure to plead a specific element of a particular cause of action or facts to support that element.
However, the demurrer may sometimes argue that the cause of action no longer exists based on statutory or case law.
Who Can Demur to a Complaint?
Usually, the defendant files a demurrer to the complaint.
However, as the plaintiff, you may submit a demurrer to the defendant’s answer to the complaint if the defendant pleads affirmative defenses, such as the statute of limitations, assumption of risk (express or implied), res judicata, or contributory negligence.
Whether a plaintiff should demur, however, is a strategic choice.
What Law Authorizes a Party to Demur?
Although it began as a common law (judge-made) pleading, the Virginia General Assembly has codified the demurrer in Code Section 8.01-273.
This statute, entitled Demurrer; form; grounds to be state; amendment, says, in part:
In any suit in equity or action at law, the contention that a pleading does not state a cause of action or that such pleading fails to state facts upon which the relief demanded can be granted may be made by demurrer.
How Long Does the Defendant Have to Demur?
The defendant must file the demurrer near the beginning of the lawsuit.
Three potential deadlines apply to the demurrer in Virginia.
For example:
A defendant must file the demurrer in response to the complaint within 21 days after service of the complaint.
However, if the defendant knew about the complaint and waived service, the deadline to demur extends to 60 days after the plaintiff files the complaint.
Further, a defendant outside the Commonwealth of Virginia has 90 days to demur.
What is the Demurrer’s Format?
The demurrer statute requires all demurrers to be in writing and to “state specifically the grounds on which the demurrant concludes that the pleading is insufficient at law.”
Who Decides Whether to Sustain (Grant) or Overrule (Deny) the Demurrer?
Judges decide demurrers, not juries.
Indeed, in deciding a demurrer, the judge determines if the lawsuit proceeds for a jury to decide if the factual allegations in the complaint are true.
How Does the Court Evaluate a Demurrer?
The judge must assume the truth of the plaintiff’s allegations with a demurrer.
In addition, the judge may consider any documents referenced or attached to the complaint.
However, when deciding the demurrer, the court will not consider the information available outside the complaint, the strength (or weakness) of the plaintiff’s proof, or any evidence (testimony or documents) the defendant can offer.
What Happens if the Court Sustains the Demurrer?
Generally, the lawsuit ends if the court sustains the defendant’s demurrer. And the defendant need not answer the plaintiff’s allegations because the judge says, in effect, that the law does not recognize the plaintiff’s claim.
But there are exceptions to this general rule.
First, the defendant may demur to some, but not all, of the causes of action pleaded.
If the court grants the demurrer to some, but not all, of the claims, the lawsuit proceeds on the remaining claims.
Second, the court may allow a plaintiff to amend the complaint. Generally, judges give leave for an amended complaint if the pleaded cause of action is insufficient to provide proper notice to the defendant of the nature or basis of the claim. And you should take advantage of this by submitting a complaint with more specific factual allegations to cure the deficiency.
Indeed, some cases involve three or more amended complaints.
If the plaintiff demurs an affirmative defense in the defendant’s answer, the lawsuit will likely continue even if the court grants the demurrer. However, the court’s ruling will simplify the civil action and reduce the proof you must obtain.
What Happens if the Court Overrules the Demurrer?
The defendant must answer the complaint if the judge overrules the demurrer.
Otherwise, the court may enter a default judgment due to failure to comply with the civil procedure rules.
The lawsuit proceeds to the discovery phase after the defendant files its answer.
Can a Party File More than One Demurrer?
Yes.
The party filing the initial demurrer may amend it if the opposing party amends its pleadings.
For example, suppose the court grants a defendant’s demurrer but gives the plaintiff permission to amend the complaint, which it does.
The defendant may amend its demurrer in response to the plaintiff’s amended complaint.
Tips for Plaintiffs to Beat a Demurrer
Researching the statutes, case law, and model jury instructions to determine the elements you must plead for each cause of action is the key to overcoming a demurrer.
We recommend using these sources as the starting point, then alleging all the facts you know of to support these claim elements in the pleading.
Can a Party Demur in Federal Court?
No.
Rule 12(b)(6) of the Federal Rules of Civil Procedure – failure to state a claim upon which relief can be granted – replaced the demurrer many years ago.
Can the Insurance Company Demur a Workers Comp Claim?
No.
Virginia workers compensation law does not allow the insurer to file a demurrer after you file a workers comp claim.
Personal Injury Attorneys to Help You Get Your Day in Court
Defendants, especially insurance carriers and big companies, will try every tactic to keep you from getting your day in court. They know that the jury may award you significant damages if the lawsuit goes to trial.
In Virginia, the demurrer is one of the primary ways defendants persuade courts to dismiss claims.
Our personal injury law firm can help you prevent this. And negotiate a favorable settlement on your behalf.
Call 804-251-1620 or 757-810-5614 to get started.
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