Keeping Your Motion To Dismiss On A Leash

Keeping Your Motion To Dismiss On A Leash

The motion to dismiss a case filed against me is coming up for hearing soon. I don’t expect to win — at least not in a permanent sense — but I’ll make a good enough showing to let the judge know I’m serious and put some fear of pro se litigants in the other side’s lawyer.

This is actually the plaintiff’s second shot at a decent complaint. The first was so sloppy that a little ole motion to quash made them scurry off and rewrite the whole thing. They hadn’t even attached the necessary exhibits, for goodness sake. Their amended complaint isn’t much better; it’s dated twice, in separate months, for one thing. But since judges dismiss cases only when they have to, it’ll probably survive my motion.

I won’t say much about the particulars of my case, this being the Internet and all, but it feels like a good time to review the standard for a motion to dismiss. It’s so tempting to throw everything you’ve got at every issue that comes up in litigation, but it’s unnecessary and often the quickest route to failure. There’s a right time and place for every argument and piece of evidence. You have to keep your case on a tight leash or you’ll end up chasing it to certain defeat.

For instance, if you’ve been properly served with a complaint and the case is in the right court, all that matters in a motion to dismiss is whether the complaint contains enough allegations against you to merit a judge’s attention. Nothing else matters. Not your denials. Not your affirmative defenses. Not your evidence. Not your counterclaims. Nothing but the plaintiff’s complaint.

Would you be liable for any harm that may have been caused if everything in the complaint was true and correct? <– That is the only question that gets resolved on a motion to dismiss, no matter what lies outside the four corners of the complaint. If the answer is ‘yes’, the case proceeds to the next phase. If the answer is ‘no’, the case is dismissed.

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The standard in virtually every state is based on Rule 8(a)(2) and Rule 12(6)(b) of the Federal Rules of Civil Procedure. Basically, the plaintiff must make a “short and plain statement” of his or her entitlement to your money or other property. Your motion to dismiss can attack that statement where it fails to allege every element of the claim(s) against you. Those elements will be different for every claim.

The U.S. Supreme Court interpreted those rules in 2007 and 2009 to require that allegations in a complaint include specific facts supporting every element of a claim. Mere legal conclusions were no longer sufficient. In a fraud claim, for example, it was no longer okay for a plaintiff to assert that a defendant had lied about something; the assertion had to include a specific statement the defendant knew to be false. Those rulings raised the bar on complaints and made it easier for defendants everywhere to get cases dismissed, but it’s still all about the complaint and nothing else.

So if you’re defending a fraud claim, don’t bother arguing in a motion to dismiss that you never said that or that the plaintiff knew it wasn’t true or that they lied to you too. None of that matters at this stage. Just find the element of a fraud claim that’s not sufficiently supported by factual allegations in the complaint, and move to dismiss on that basis. Less is more on a motion to dismiss.

Oh, and always take a court reporter to your hearing. It’s the only way to guarantee the judge will even listen to you.

Have you succeeded on a motion to dismiss? Share your story in the comments below.

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