Chapter 28-1 Motions to Dismiss Baseless Causes of Action

• Jurisdiction: United States

28-1 Motions to Dismiss Baseless Causes of Action

Texas Rule of Civil Procedure 91a became effective on March 1, 2013 and authorizes a motion to dismiss a cause of action on the grounds that it has no basis in law or fact.

28-1:1 Scope of Application

Rule 91a authorizes a motion to dismiss in all cases, except for those brought under the Family Code or those brought pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code. A Chapter 14 action under the Texas Civil Practice and Remedies Code is an action brought by an inmate in which an affidavit or unsworn declaration of inability to pay costs is filed by the inmate.¹

28-1:2 No Basis in Law or Fact

Rule 91a authorizes a party to move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in law if "the allegations, taken as true, together with inferences reasonably drawn from them do not entitle the claimant to the relief sought."² A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.³

The Beaumont Court of Appeals has compared the Rule 91a motion to dismiss to the federal motion to dismiss for failure to state a claim under Federal Rule 12(b)(6).⁴The court used the comparison to import the federal plausibility pleading standards to the determination of whether or not a pleading passes muster under Rule 91a.⁵

The Beaumont court said, "in determining whether the trial court erred in denying a defendant's motion to dismiss, we take all plaintiff's allegations as true and consider whether a plaintiff's petition contains 'enough facts to state a claim to relief that is plausible on its face.'"⁶ The San Antonio Court of Appeals has cited to federal pleading case law and described the standard for dismissal in language similar to that found in federal case law interpreting the plausibility standard.⁷ In particular, the court has said that it accepts the plaintiff's factual allegations as true but does not provide the same deference to the plaintiff's legal conclusions or conclusory statements. Other courts of appeals have incorporated Texas's traditional fair notice pleading standard into the standard for ruling on a Rule 91a motion and have largely ignored the federal plausibility standard.⁸ Prudence demands compliance with the plausibility standard until the Supreme Court of Texas or other courts of appeals provide clarification.

28-1:3 Contents of Motion

The motion to dismiss must meet the following requirements:

• State that it is made pursuant to Rule 91a;
• Identify each cause of action to which it is addressed; and
• State the reasons the cause of action has no basis in law, no basis in fact, or both.⁹

28-1:4 Timing of Motion, Response, and Hearing

The motion must be filed within 60 days after the first pleading that contains the challenged cause of action is served on the movant.¹⁰ It must be filed at least 21 days before the motion is heard.¹¹ The response must be filed no later than 7 days before the date of the hearing.¹² The term hearing includes both submission and an oral hearing.¹³ Each party is entitled to at least 14 days notice of the hearing on the motion to dismiss, though the trial court need not conduct an oral hearing on the motion.¹⁴

28-1:5 Ruling on the Motion

Rule 91a sets a deadline for the trial court to rule on the motion. The trial court must grant or deny the motion within 45 days after the motion is filed.¹⁵

The trial court may not consider evidence in ruling on the motion but must decide the motion based solely on the pleading.¹⁶ The court may consider...