4.1 - Motions to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted

(a) Generally

The respondent may move for dismissal of the complaint on the ground that the complainant has failed to state a claim upon which relief can be granted.

Filing a motion to dismiss for failure to state a claim upon which relief can be granted does not affect the time period for filing an answer. Therefore, the respondent must also file an answer within 30 days after the service of the complaint, unless otherwise ordered by the ALJ. See 28 C.F.R. § 68.9(a); Chapter 3.5(a) (Requirement to File an Answer).

Filing a motion to dismiss for failure to state a claim upon which relief can be granted does not waive the respondent’s right to offer evidence in the event that the motion is not granted.

(b) Response to Motion

If a respondent files a motion to dismiss for failure to state a claim upon which relief can be granted, the complainant may file a response to such motion within 10 days after the motion is served. See 28 C.F.R. § 68.11(b).

(c) Dismissal by the Administrative Law Judge

If the ALJ determines that the complainant has failed to state a claim upon which relief can be granted, the ALJ may dismiss the complaint.

This dismissal may be based on a motion from the respondent or may be on the ALJ’s own motion.

However, in the prehearing phase of the proceeding, the complainant must be given an opportunity to show cause why the complaint should not be dismissed before the ALJ may, upon their own initiative, dismiss a complaint in its entirety for failure to state a claim upon which relief may be granted.