A motion to dismiss with prejudice is a written request asking the trial court to throw a lawsuit out permanently, so the plaintiff cannot refile the same claim later. In federal practice it is almost always built on Rule 12(b)(6), and an example of a motion to dismiss with prejudice follows a predictable five-part structure: caption, introduction and procedural background, legal argument, prayer for relief, and certificate of service. The sections below walk through each part, the legal standard the argument has to meet, and the circumstances under which a court will actually grant the permanent version of the dismissal.
What “With Prejudice” Changes About the Request
A dismissal with prejudice is a final judgment on the merits. The plaintiff is barred from refiling the same claim against the same defendant in any court, a consequence rooted in claim preclusion. A dismissal without prejudice ends the current case but lets the plaintiff fix the problem and try again.
That difference drives everything about how the motion is drafted. A motion seeking a without-prejudice dismissal can lean on procedural defects: bad service, wrong venue, a vague complaint. A motion seeking a with-prejudice dismissal has to show the court that the plaintiff’s claim is broken in a way no amendment can repair. Rule 41(b) reinforces this by specifying that dismissals for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 do not count as final judgments on the merits.1Legal Information Institute. Federal Rules of Civil Procedure Rule 41 – Dismissal of Actions So the usable grounds for a permanent dismissal narrow quickly, and in practice the motion rides on Rule 12(b)(6): failure to state a claim.
The Legal Ground You’re Building On
A Rule 12(b)(6) motion argues that the complaint is legally deficient on its face. The defendant is not disputing the facts. The argument is that even if everything the plaintiff alleges is true, there is no legal claim. A court will dismiss with prejudice on this ground when the legal theory itself is fatally flawed, when an absolute defense like an expired statute of limitations bars the claim, or when the plaintiff has already amended and still cannot plead a viable case.2Cornell Law School / Legal Information Institute. Federal Rules of Civil Procedure Rule 12 – Defenses and Objections
Two Supreme Court decisions supply the standard. Bell Atlantic Corp. v. Twombly (2007) held that a complaint needs enough factual content to make the claim plausible, not merely conceivable. Ashcroft v. Iqbal (2009) added two rules the court must apply: legal conclusions in the complaint get no presumption of truth, and only a complaint stating a plausible claim for relief survives. Plausibility means the factual allegations allow the court to draw a reasonable inference that the defendant is liable. It is not probability, but it is more than a bare possibility.
This is the standard your legal argument has to invoke and apply. A motion that recites Twombly and Iqbal but never walks the court through the specific allegations in the complaint will lose. The point of the motion is to show, allegation by allegation, that the complaint falls short of plausibility.
Section-by-Section Example of the Motion
The format is governed by the Federal Rules of Civil Procedure and local court rules. The sections below are the ones every version of this motion contains.
Caption and Title
Every court filing starts with a caption. Rule 10(a) requires the court’s name, the names of all parties, the case file number, and a designation identifying the type of document.3Cornell Law School / Legal Information Institute. Federal Rules of Pleadings Rule 10 – Form of Pleadings For this motion, the title typically reads something like “Defendant’s Motion to Dismiss Plaintiff’s Complaint With Prejudice Pursuant to Federal Rule of Civil Procedure 12(b)(6).” That title tells the court two things at once: what the defendant wants and the rule it comes from. If the motion is based on multiple grounds, list each rule subsection in the title.
Introduction and Procedural Background
The opening paragraph identifies the defendant, states the relief sought, and cites the rule authorizing the motion. A short procedural history follows: when the complaint was filed, what claims it raises, and what events brought the parties to this motion. This section is factual, not argumentative. It gives the judge the frame before the argument lands.
A common structure is one paragraph identifying the parties and the motion, one paragraph summarizing the claims in the complaint, and one paragraph previewing the deficiencies the motion will attack. Three or four paragraphs is usually enough. Save the argument for the argument section.
Legal Argument
This is the heart of the document. The defendant lays out the legal standard, which for a Rule 12(b)(6) motion means the plausibility standard from Twombly and Iqbal, then applies that standard to the specific complaint. Each argument should target a specific deficiency. Common ones include:
- The complaint relies on legal conclusions rather than facts, so under Iqbal those conclusions get no presumption of truth.
- The claim is barred by an absolute defense visible on the face of the complaint, such as an expired statute of limitations.
- The factual allegations, taken as true, do not support any recognized legal theory.
- The plaintiff has already been given a chance to amend and still cannot plead a plausible claim, making further amendment futile.
The argument should cite controlling case law from the circuit where the case is pending and quote directly from the complaint where the complaint’s own words demonstrate the problem. The with-prejudice piece needs its own paragraph. It is not enough to show the complaint fails. The defendant has to explain why amendment would be futile, because without that showing the court is likely to dismiss without prejudice and let the plaintiff try again.
Many courts require this argument to be filed as a separate memorandum of points and authorities rather than inside the motion itself. Whether combined or separate depends on local rules. The substance is the same: a structured legal argument explaining why the complaint is deficient and why that deficiency cannot be cured.
Prayer for Relief
The document closes with a formal request asking the court to enter an order dismissing the complaint with prejudice. Standard language also requests “such other and further relief as the Court deems just and proper.” Some courts require the defendant to submit a proposed order alongside the motion so the judge has a ready document to sign. Check local rules on this point before filing.
Certificate of Service
Every filing after the initial complaint has to include a certificate confirming that a copy was delivered to the opposing party or their attorney. Under Rule 5(d), the certificate states the date and method of service, whether by hand delivery, mail, or electronic filing.
When a Court Will Actually Dismiss With Prejudice
Drafting the motion well is only half the work. The court still has to decide that permanent dismissal is appropriate rather than giving the plaintiff another chance.
Rule 15(a) of the Federal Rules of Civil Procedure says courts “should freely give leave when justice so requires,” and in practice most plaintiffs get at least one chance to fix a deficient complaint before facing a with-prejudice dismissal.4Legal Information Institute at Cornell Law School. Federal Rules of Civil Procedure Rule 15 – Amended and Supplemental Pleadings Courts deny leave to amend using the factors from Foman v. Davis: undue delay, bad faith, repeated failure to fix problems despite earlier opportunities, undue prejudice to the opposing party, or futility.5Justia US Supreme Court. Foman v Davis, 371 US 178 (1962) Futility is the one that matters most here. If the legal theory is fundamentally flawed, no rewrite will save it, and the court will dismiss with prejudice rather than allow a pointless amendment.
That is why a strong motion anticipates the leave-to-amend question directly. Point to any prior amendments the plaintiff has already made, show why the defect is legal rather than factual, and explain why no additional allegations could rescue the claim. A motion that stops at “the complaint fails to state a claim” is a motion asking for dismissal without prejudice, whether the drafter realizes it or not.
A separate route to a with-prejudice dismissal exists under Rule 41(b): failure to prosecute. If a plaintiff fails to move the case forward or repeatedly ignores court orders, the defendant can move for involuntary dismissal, and unless the court specifies otherwise that dismissal operates as a final judgment on the merits. Judges reserve this sanction for serious inaction or defiance.
If You’re on the Receiving End
A plaintiff facing this motion has three immediate tools. The first is a written opposition arguing that the complaint does state a plausible claim, filed within the deadline set by local court rules. The federal rules require that motions be served at least 14 days before a hearing, and opposing affidavits at least 7 days before, but local filing deadlines for the opposition itself vary, so the local rules are the first stop.6Cornell Law School – Legal Information Institute. Federal Rules of Civil Procedure Rule 6 – Computing and Extending Time
The second is a request for leave to amend. If the complaint has real weaknesses, acknowledging them and asking for leave to replead is usually better than defending them. Rule 15(a)’s “freely give” language is doing work here.
The third is a request for a hearing under Rule 12(i). Courts are not required to hold oral argument on every motion, and many rule on the papers alone. When the legal issues are complex, a hearing lets the plaintiff make points that do not translate well to a brief.