Many out-of-state lawyers who are trying to obtain Virginia licensure encounter this strange legal term. A demurrer is still used in Virginia and California, but I do not know of any other state that uses this term for this type of civil filing. It’s not something you would see tested on the UBE, nor used in many places.
In Virginia law, what is a demurrer?
Tested under the Virginia Civil Procedure procedure topic of the Virginia Bar Exam, a demurrer is a procedural device used by a defendant to challenge the legal sufficiency of a plaintiff’s civil complaint. It is a way for the defendant to assert that even if all the facts alleged in the complaint are true, they do not establish a valid claim for relief. The purpose of a demurrer is to test the legal adequacy of the plaintiff’s cause of action, rather than the truth of the factual allegations. In this sense, a demurrer is similar to a federal 12b6 motion, sometimes called a “motion to dismiss for failure to state a claim.”
When a demurrer is filed, the defendant is essentially saying that the plaintiff’s complaint fails to state a claim upon which relief can be granted. The defendant argues that, as a matter of law, the facts alleged in the complaint do not support the legal elements necessary for the plaintiff to succeed in their case.
The following procedures and timelines generally apply:
- Timing: A demurrer must be filed within 21 days after service of the plaintiff’s complaint or any amended complaint. However, if the defendant has already filed a responsive pleading, they have 21 days after service of the last pleading to file a demurrer.
- Contents: It must be in writing and state the specific grounds upon which the defendant is challenging the sufficiency of the complaint. It should clearly identify the legal defects in the plaintiff’s cause of action and explain why the complaint fails to state a valid claim.
- Service: The demurrer must be served on the plaintiff or their attorney in accordance with the rules of service of process. Proper service ensures that the plaintiff receives notice of the demurrer and has an opportunity to respond.
- Hearing: Once it is filed and served, the court may schedule a hearing to consider the arguments of both parties. The hearing provides an opportunity for the defendant to present their legal arguments supporting the filing, and for the plaintiff to respond and oppose the demurrer.
- Ruling: After the hearing, the court will issue a ruling. If the court sustains the demurrer, it means the court agrees with the defendant’s argument that the complaint is legally deficient. The court may grant the plaintiff an opportunity to amend their complaint to address the deficiencies identified in the demurrer. If the court overrules the demurrer, it means the court disagrees with the defendant’s argument and allows the case to proceed.
Note that this information is not intended for use in the practice of law, but is provided only as an education resource for students studying for the Virginia Bar Exam.