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This is correct. The problem above was conflating "on the merits" with determining facts by considering evidence.

• aw1621107 6y ago
  > This is correct. Your comment appears to imply otherwise. Did I misread it? > conflating "on the merits" with determining facts by considering evidence. Do you mind elaborating on the difference?
  • bdowling 6y ago
    > Your comment appears to imply otherwise. Did I misread it? My comment wasn't very clear. Sorry about that. Usually we think of a judgment "on the merits" as one that occurs after considering both the law and facts of a case. > Do you mind elaborating on the difference? In the case of a motion to dismiss for failure to state a claim, the judge in theory assumes that the facts alleged in the complaint are all true. If he dismisses the case, it is because as a matter of law the plaintiff cannot win. In such a case it is incorrect to say that the evidence was found to be lacking because the evidence was never considered.
    • aw1621107 6y ago
      > In such a case it is incorrect to say that the evidence was found to be lacking because the evidence was never considered. I feel like now the disputable phrase is "considering the evidence". Is the judge not considering the evidence when deciding that the presented facts/evidence are insufficient to support the complaint, even when assumed to be true? How would such a ruling differ from a hypothetical one where the case goes to trial and the defense does literally nothing? Is the evidence considered in the latter case but not the former?