Sample Motion to Dismiss an Appeal: Grounds, Format, and Filing

A motion to dismiss an appeal is a short, focused filing in which the appellee asks the appellate court to end the appeal before it reaches the merits because of a jurisdictional or procedural defect. A usable sample of a motion to dismiss an appeal follows the structure set by Federal Rule of Appellate Procedure 27: caption, introduction, statement of facts, legal argument, relief requested, and the certificates and exhibits that make it filable. The sections below walk through that structure, the grounds that actually support dismissal, and the format rules the motion has to meet.

Sample Structure of a Motion to Dismiss an Appeal

The outline below tracks Rule 27 and shows how a federal motion to dismiss is organized. State appellate courts use similar components but have their own local rules, so check them before you file.

Caption. Court name, case number, case title, and a descriptive heading such as “Appellee’s Motion to Dismiss Appeal for Lack of Appellate Jurisdiction.” A cover page is not required in federal court, though some state courts and local rules mandate one.¹
Introduction. One or two sentences identifying the moving party, the nature of the motion, and the ground for dismissal. For example: “Appellee [Name] respectfully moves this Court to dismiss Appellant’s appeal because the notice of appeal was filed outside the 30-day deadline established by Federal Rule of Appellate Procedure 4(a)(1)(A).”
Statement of Facts. A brief recitation limited to the facts that establish the defect. For a timeliness argument, this is just two dates: when the district court entered final judgment and when the appellant filed the notice of appeal.
Legal Argument. The core of the motion. State the applicable rule or statute, explain how the facts satisfy the standard for dismissal, and cite controlling appellate decisions from the relevant circuit. If you are raising more than one ground, organize by issue. Appellate judges expect precedent from their own circuit holding that this type of defect warrants dismissal; a motion that relies only on the text of the rule reads as weak.
Relief Requested. A clear statement of what you want the court to do: “For the foregoing reasons, Appellee respectfully requests that this Court dismiss the appeal.” If you are also seeking costs or sanctions, include those requests here.
Certificate of Service. A statement confirming service on all other parties, with date, method of service, and the names and addresses of those served.
Certificate of Compliance. Where required, a signed statement confirming the motion meets the applicable word count.
Exhibits. The trial court’s opinion or judgment, plus any document the motion relies on. In a timeliness motion, attach the notice of appeal, because the filing date on that document is the critical evidence.¹

The argument section is where these motions succeed or fail. A frequent mistake is loading up the statement of facts and then thinning out the legal argument. The facts in a motion to dismiss are usually a handful of dates and docket entries. The argument carries the weight.

Grounds That Support Dismissal

Courts favor hearing appeals on the merits, so the motion has to identify a specific recognized defect rather than argue that the appeal is weak.

Lack of Appellate Jurisdiction

The strongest ground is that the appellate court has no authority to hear the case. Federal courts of appeals have jurisdiction only over “final decisions” of the district courts.² A final decision resolves all claims against all parties and leaves nothing for the trial court to do. Jurisdictional defects cannot be waived and can be raised at any time, including by the court on its own. If the order on appeal isn’t final and no exception applies, the court must dismiss.

Untimely Notice of Appeal

In federal civil cases, the notice of appeal must be filed within 30 days after entry of the judgment or order. When the federal government is a party, the window is 60 days. In criminal cases, a defendant has 14 days.³ The Supreme Court has held that statutory appeal deadlines are jurisdictional, so missing one by a single day strips the appellate court of power to hear the case. Deadlines set by court rules rather than statutes may be more flexible, but untimely filing remains the single most common reason motions to dismiss succeed.

Mootness

A court will dismiss when the controversy is no longer live. A case is moot when it has become “impossible for a court to grant any effectual relief whatever to the prevailing party.”⁴ Settlement, repeal of a challenged law, or full resolution of the underlying harm while the appeal is pending can moot the case.

Frivolousness

A court can dismiss an appeal that lacks any arguable basis in law or fact. Under Rule 38, if the court finds an appeal frivolous, it may award damages and single or double costs to the appellee.⁵

Other Procedural Defects

Failure to properly designate the appellate record, omission of required transcripts, and similar missteps can support dismissal, though courts often give the appellant a chance to cure before terminating the appeal. One boundary worth noting: failing to prepay the filing fee is not a jurisdictional defect in federal court, so it will not automatically end an appeal, though it still creates problems if left unresolved.

Format Requirements the Sample Must Meet

Rule 27 governs the mechanics. A motion or response prepared on a computer cannot exceed 5,200 words. A reply is capped at 2,600 words. Handwritten or typewritten motions are limited to 20 pages, with replies at 10 pages.¹ Where type-volume compliance applies, include a signed certificate of compliance stating the word count, which you can pull from your word processor.⁶

The motion must state “with particularity” the grounds for dismissal, the legal argument supporting it, and the specific relief sought. A motion seeking substantive relief must include the trial court’s opinion or decision as a separate exhibit, and any supporting affidavits or papers must be served and filed with the motion.¹

Filing and Service

Most federal appellate courts require electronic filing, and many state appellate courts now do as well. Pro se parties in some courts can still file on paper. Check local rules first.

Serve a copy of the motion on all other parties before or at the time of filing. Service on a represented party goes to counsel, not the party directly.⁷ Service can be made electronically through the court’s filing system, by personal delivery, by mail, or by commercial carrier. When a paper is not served electronically or delivered on the stated date, 3 additional days are added to any response deadline.⁸

Every filing must include proof of service unless it was served through the court’s electronic filing system. Proof of service must state the date and method of service, the names of those served, and their addresses or electronic contact information.⁷

There is no fixed deadline for a motion to dismiss based on jurisdictional grounds, because jurisdiction can be challenged at any time. Even so, filing promptly saves both sides unnecessary briefing. Motions targeting defects the appellant could potentially fix should be raised early, before the court invests in the appeal.

What Happens After You File

The appellant has 10 days to respond. You then have 7 days after service of the response to file a reply, and the reply must address only arguments raised in the response.¹ Count every calendar day, including weekends and holidays, but if the last day lands on a Saturday, Sunday, or legal holiday, the deadline moves to the next business day.⁸

The court typically decides on the papers alone. A panel reviews the motion, response, and any reply. Oral argument may be dispensed with when the panel unanimously agrees the written submissions are adequate and argument would not significantly aid decision.⁹ For most motions to dismiss, the question is clean enough that argument would add nothing.

The panel has three options. It can deny the motion and let the appeal proceed. It can grant and dismiss. Or, where the jurisdictional question is genuinely intertwined with the merits, it can defer the decision until it hears the full appeal.

If dismissal is granted, the trial court’s judgment stands. For jurisdictional dismissals based on untimely filing the result is almost always permanent, because the statutory deadline has already passed and a new notice of appeal cannot be filed. Costs are taxed against the appellant on dismissal unless the court orders otherwise.¹⁰

Adding a Sanctions Request

If the appeal is frivolous, you can ask for damages and single or double costs under Rule 38, which can include attorney’s fees and litigation expenses. One procedural point matters here: a request for sanctions must be filed as a separate motion. Burying it inside your appellate brief does not count as proper notice.⁵ The court can also find an appeal frivolous on its own initiative at any stage, including after full briefing and argument. The standard is whether the appeal has any arguable merit; proof of intent to harass or delay is not required, though it can increase the penalty.

1
Legal Information Institute. Federal Rules of Appellate Procedure Rule 27 – Motions
2
Office of the Law Revision Counsel. 28 USC 1291 – Final Decisions of District Courts
3
Legal Information Institute. Federal Rules of Appellate Procedure Rule 4 – Appeal as of Right — When Taken
4
Legal Information Institute. Modern Mootness Doctrine – General Criteria of Mootness
5
Legal Information Institute. Federal Rules of Appellate Procedure Rule 38 – Frivolous Appeal — Damages and Costs
6
Legal Information Institute. Federal Rules of Appellate Procedure Rule 32 – Form of Briefs, Appendices, and Other Papers
7
United States Congress. Federal Rules of Appellate Procedure Rule 25 – Filing and Service
8
Legal Information Institute. Federal Rules of Appellate Procedure Rule 26 – Computing and Extending Time
9
Legal Information Institute. Federal Rules of Appellate Procedure Rule 34 – Oral Argument
10
Legal Information Institute. Federal Rules of Appellate Procedure Rule 39 – Costs