Robbins: Parsing out demurs |

Robbins: Parsing out demurs

To my ear, and perhaps yours as well, the word “demur” conjures up an image of a shy and modest ingenue sipping sweetened tea. That is apt, I suppose, for the similar-looking/sounding word, “demure” but, oh my, except for sight and sound, the two are not at all related.

While the word “demure” indeed denotes a person of quiet modesty and sedate reserve, and one would think derives from French (which it does not), “demur” is etymological and definitionally a horse of an entirely different color. To clarify a bit, demur, rhymes with “prefer;” demure rhymes (sort of anyway) with “secure.”

Drop the final “e” on the word demure and, rather than a term of shy deference, the resulting word becomes one of clenched-fist protest. To demur may be defined as the act or an instance of objecting.

Legally, a “demurrer” is a written response to a complaint filed in a lawsuit which, in effect, pleads for dismissal on the point that, even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit. To demur, then, is to advance a demurrer before the Court.

When a demurrer is filed, a hearing will be held before the Court to determine its validity. Some claims or causes of action may be defeated by a demurrer while others may survive.  Some demurrers may contend that the complaint is unclear or omits an essential element of fact. If the judge finds these errors, s/he will often sustain the demurrer (that is, hold that it is valid), but “with leave to amend” in order to allow changes to be made to the original complaint. If after amendment, the complaint is still not legally sufficient, the demurrer will be sustained. On rare occasions, a demurrer can be used to attack an answer to a complaint. Some states have substituted a motion to dismiss for failure to state a cause of action for a demurrer.

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A demurrer challenges a complaint by asserting that the complaint at issue should be dismissed because it fails to state sufficient facts to constitute a cause of action. Essentially, this defense asserts that even if all the factual allegations in a complaint are true, they still do not give rise to a legally cognizable claim for relief. 

An example here might help. Say someone files a complaint alleging that their coworker gave them a dirty look. Even if factually true, it is hard to conceive, even in our hyper-sensitive times, how the law would provide a remedy for this type of wrong. As such, the complaint would be subject to demurrer.  “Yeah, yeah, that’s true and all, but where’s the legal beef?”

As noted above, demurrers are now encompassed by the modern federal and state rules of civil procedure as a motion to dismiss a complaint for “the failure to state a claim upon which relief can be granted” which, citing the relevant rule of procedure, is also sometimes referred to as a “12(b) motion.” Failure to state a claim upon which relief may be granted may also be—and often is—an affirmative defense articulated in the answer to a complaint.

A demurrer is a formal response to a pleading that, although it admits the alleged facts to be true, also argues against the pleading by stating no specific cause of action or defense is found within the pleading’s allegations.

Which leads us in a circuitous path to the concept of “alternative pleading.” Under this construction, both the plaintiff and defendant may plead in the alternative. What this allows is for a party to allege two or more claims which are inconsistent with each other.  

During a lawsuit, pleading occurs before the evidence-gathering process of discovery. As a result, a plaintiff may not know exactly which theory of recovery the evidence most supports. Because defects in the pleadings can result in dismissal of the lawsuit, alternative pleading exists to prevent plaintiffs from losing viable causes of action in scenarios where it is unclear what evidence discovery will uncover. 

Let’s take another example. A plaintiff in a car accident may not know during the pleading stage whether the defendant ran into the plaintiff intentionally or by mistake. To ensure the plaintiff can recover what s/he is entitled to, alternative pleading allows them to plead the inconsistent claims that the defendant committed the intentional (and not negligent) tort of battery and that the defendant was negligent.

What this has to do with demurrer and/or the defense of the failure to state a claim upon which relief may be granted is allowing that the defendant may speak simultaneously out of both sides of his or her mouth. On the one had, s/he may admit the facts to be true in order to support the demurrer and, on the other hand, in support of another defense, s/he may deny the facts as being true.

By the way, the word “demur” derives from the Middle English Anglo-French versions that trace back to Latin “demorari,” which means “to linger or delay.” The word “demure” is slightly younger and of uncertain provenance. It is thought, however, that it may be kith and kin to Middle English “mure” or “meure”, meaning “sober, dignified” or “modest, gentle.” If I had a shrug emoji, I’d deploy it here.

In any event, demure-demur are different. The first is all blush and softness. The second is a bold “so what!” One has its place in the rough and tumble of the courtroom; the other in period novels in the ilk of Jane Austen, Margaret Mitchell, and Gustave Flaubert. 

Argue with me otherwise and I just may demur. Or else, I might find myself too demure to do so. 

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the law firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, and divorce, and civil litigation. Robbins may be reached at 970-926-4461 or at his email address at His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers.           

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