Editing Demurrer (section)

==United States==

===Federal courts===
In civil cases in the [[United States district court]]s, the demurrer was expressly abolished by Rule 7(c) of the [[Federal Rules of Civil Procedure]] ("FRCP", also "Federal Rules") when the FRCP went into effect on September 16, 1938. The demurrer was replaced by the Rule 12(b)(6) [[Motion (legal)#Motion to dismiss|motion to dismiss for failure to state a claim]] upon which relief can be granted.

The demurrer was abolished after American lawyers realized that the pleadings should frame only those issues that will be actively litigated through motion practice once both sides have fully stated their positions and the case is at issue. Although the demurrer technically also framed the issues in a case, treating the demurrer as a pleading came to be seen as irrational because it was the ''only'' pleading that required an immediate hearing and ruling on its content (which consisted of an attack upon the complaint), while the complaint and the answer merely stated the respective positions of each side but did not require [[Hearing (law)|hearing]]s in and of themselves. Thus, it made sense that a discretionary attack upon the complaint that was already being drafted, calendared, heard, and ruled upon like a motion should simply be treated like one.

Having purged the demurrer from federal courts, Rule 7(c) was deemed obsolete by the [[Advisory Committee on Civil Rules]] during the 2002–2007 FRCP revision cycle. It was therefore deleted from the version of the FRCP that went into effect on December 1, 2007.

===State courts===

A majority of U.S. states (approximately 35) have adopted civil procedure rules modeled after the Federal Rules and therefore have abolished the demurrer and replaced it with the motion to dismiss for failure to state a claim upon which relief can be granted. In [[Supreme Court of Ohio|Ohio]], for example, demurrers are specifically prohibited.<ref>Ohio Rule of Civil Procedure 7(C) ("Demurrers shall not be used").</ref>

However, a demurrer can still be filed by the defendant in a minority of U.S. [[State court (United States)|state court]] systems. Demurrers are still used in [[Supreme Court of California|California]]<ref>[http://codes.lp.findlaw.com/cacode/CCP/3/2/6/3/1/s430.10 California Code of Civil Procedure Section 430.10.]</ref> and [[Supreme Court of Virginia|Virginia]]<ref>[https://law.lis.virginia.gov/vacode/8.01-273/ Code of Virginia Section 8.01-273.]</ref> state court civil practice. In California, a demurrer must assume the truth of the facts alleged by the complaining party, but challenges the complaint as a matter of law.<ref>Hensler v. City of Glendale(1994) 8 Cal.4th 1</ref> If a demurrer is sustained regarding the form of the complaint, leave to amend is liberally granted, and denial of leave to amend may constitute an abuse of discretion.<ref>Goodman v. Kennedy (1976) 18 Cal.3d 335</ref> Additionally, when children are removed from their parents and taken into foster care in California, the parents may challenge the sufficiency of the dependency complaint by means of a ''motion akin to demurrer'', which operates similarly to a demurrer.<ref>In re Fred J. (1979) 89 Cal.App.3d 168</ref> However, demurrers are prohibited in California in other family law actions.<ref>{{cite book | title=California Rules of Court, rule 5.74(b)(2)}}</ref> Also in California, a demurrer is not said to be "granted," but is said to be "sustained" or "overruled." An order sustaining a demurrer is not a readily appealable order unless it disposes of an entire action without leave to amend and results in a judgment.<ref>9 WITKIN, California Procedure (5th), ''Appeal'', Section 154 and 5 WITKIN, California Procedure (5th), ''Pleading'', Section 997.</ref>

The term ''preliminary objection'' is used in [[Judiciary of Pennsylvania|Pennsylvania state court]] to refer to all motions made after the filing of a complaint but before the filing of an answer; preliminary objections may be made "in the nature of a demurrer" (seeking to dismiss a cause of action for legal insufficiency) or "in the nature of a [[motion to strike (court of law)|motion to strike]]" (seeking to remove parts of a pleading for failure to abide by the technical rules), as well as various other means.<ref>Pa. R.C.P. 1028</ref> As with the traditional demurrer, preliminary objections are regarded as pleadings. Preliminary objections in the nature of a demurrer are governed by Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure.