Demurrer

A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word demur means "to object"; a demurrer is the document that makes the objection. Lawyers informally define a demurrer as a defendant saying, "So what?" to the pleading.

Typically, the defendant in a case will demur to the complaint, but it is also possible for plaintiff to demur to an answer. The demurrer challenges the legal sufficiency of a claim, cause of action, or to the defenses set forth in an answer. If a cause of action in a complaint does not state a cognizable claim (e.g., the claim is nonsense) or if it does not state all the required elements, then the challenged cause of action or possibly the entire complaint can be "thrown out" with a demurrer as not legally sufficient. A demurrer is typically filed near the beginning of a case, in response to the plaintiff filing a complaint or the defendant answering the complaint.

At common law, a demurrer was the pleading through which a defendant would challenge legal sufficiency of a complaint in criminal or civil cases, but today the pleading has been discontinued in many jurisdictions, including the United Kingdom and the U.S. federal court system (though some state jurisdictions, including California and Virginia, retain it). In criminal cases, a demurrer was considered a common law due process right, to be heard and decided before the defendant was required to plead "not guilty", or make any other pleading in response, without having to admit or deny any of the facts alleged.

An important distinction about a demurrer is that the party filing the demurrer is not allowed to challenge the facts alleged in the complaint, nor can a demurrer contest the ultimate merits of a case or claim. For example, where a complaint alleges the defendant "drove through a red traffic light," the demurring party cannot attach evidence to the demurrer (e.g., a photograph) showing the traffic signal was green. This "no-evidence-on-a-demurrer rule" is manifested in the law. Specifically, when ruling on a demurrer a judge is required to assume as true or proved all material facts alleged in the complaint, even if those facts appear fabrications by the complainant or easily disproved during litigation of the case.

The sole exception to this no-evidence rule is that a judge may take judicial notice of specified narrow categories of facts or documents (such as public records) that either contradict the face of the complaint or are material facts not subject to challenge. For example, if the complaint alleges that an event occurred on a specified date and that date establishes on the face of the complaint that the party's filing was too late (beyond the applicable statute of limitations), a judge can take judicial notice of a standard Gregorian calendar, calculate the difference between the present date and the date the complaint alleges a wrongful act occurred, and determine if the complaint was timely filed. Then the judge can sustain (rule in favor of) a demurrer on the basis that the complaint's date-related allegations indicate it was filed too late ("the statute of limitations has run"), unless the plaintiff can show a typographical error (a so-called "scrivener's error") occurred in the drafting of the complaint.