Responding To A Motion To Dismiss

The motion to dismiss is a defendant’s request that the case be thrown out, usually because of a deficiency in the complaint or the way the complaint was served on the defendant. Failure to state a claim is the most common grounds for dismissal.

A judge can dismiss a claim with or without prejudice. A dismissal without prejudice is one where the plaintiff is allowed to amend the complaint or refile it. A dismissal with prejudice kills the claim. Dismissal of all the claims with prejudice ends the case. The plaintiff cannot refile the lawsuit. The only thing left for him to do is to appeal.

To successfully defeat a motion to dismiss, a pro se plaintiff must rebut the following potential assertions:

1. The plaintiff’s allegations don’t fit the facts of the case.
2. There is a missing element of the claim.
3. There are no factual allegations in the complaint, only conclusions.
4. The plaintiff is suing for claims not recognized by law or statute.
5. The plaintiff alleges no injury or damages.

Example– Cammie
Cammie, a clothing designer, contracted with Fitting Flair, a clothing store, to sell a specified number of pocket pants per month to Fitting Flair. At the time of the contract, Fitting Flair and its competitor, Shirley Girl, were the largest local distributors of upscale clothing for plus-sized women. Cammie had decided to go with Shirley Girl, the older and more established of the two companies, when Fitting Flair offered exclusive distribution of her pocket pants design. Having an exclusive contract meant that Cammie’s pants would be the only pocket pants sold at Fitting Flair. Pleased with this arrangement, she signed a 5-year contract with Fitting Flair.

For a year, all went well. Then Cammie’s sales started to nosedive. She visited a Fitting Flair store to identify the problem and saw pocket pants she hadn’t made. Eventually, Cammie came to believe that the cheap pocket pants she’d found in the store were the cause of her slump in sales. She sued Fitting Flair for breach of contract and tortious interference with prospective economic advantage.

Failure to state a claim assertion

Cammie has asserted two claims — breach of contract and tortious interference with prospective economic advantage. To assert failure to state a claim, the defendant, Fitting Flair, will try to defeat these claims. It may state any of the following grounds:

1. The plaintiff’s allegations don’t fit the facts of the case.
2. There is a missing element of the claim.
3. There are no factual allegations in the complaint, only conclusions.
4. The plaintiff is suing for claims not recognized by law or statute.
5. The plaintiff alleges no injury or damages.

Defeating the Motion to Dismiss for Failure to State a Claim

To save her case, Cammie has to review her complaint to evaluate any potential defects. She must cure each defect she finds.

1. Allegations don’t fit the facts of the case.

Fitting Flair can say that Cammie’s allegations don’t fit the facts of the case. Unfortunately for Fitting Flair, courts will deem the facts in the complaint as true. It will be up to Fitting Flair to prove the facts are not true.

If Cammie determines that Fitting Flair is wrong on this point, she’ll respond to the motion by pointing to cases that say courts are required to deem allegations in the complaint as true. If she guessed on some of the facts or exaggerated others, she can clear that up in discovery–or not. It depends on how well Fitting Flair makes its case.

2. There are missing elements of a claim.

Fitting Flair can say that Cammie is missing at least one element of a claim. To address this, Cammie must understand the elements in each of her claims and map those elements to the facts.

Elements of breach of contract in Cammie’s case

(1) the contract; (2) plaintiff’s performance under the contract; (3) defendant’s breach, and (4) damage to the plaintiff.

Elements of tortious interference

(1) An economic relationship that was likely to benefit the plaintiff; (2) The defendant’s knowledge of this relationship; (3) Wrongful conduct by the defendant; (4) Defendant’s intent to disrupt the economic relationship; (5) Disruption of the relationship; (6) Harm to the plaintiff; and (7) A causal connection between the wrongful act and the harm.

For dismissal, Fitting Flair needs only to challenge one element for each claim. Let’s say in its motion to dismiss, Fitting Flair asserts that Cammie has failed to claim any damages. That’s Element #4 of the breach of contract claim. If Fitting Flair demonstrates this in Cammie’s complaint, the court will likely dismiss that claim.

What if Fitting Flair goes on to show that the complaint failed to allege facts showing “wrongful conduct by the defendant” and “intent to disrupt the economic relationship” between Cammie and Shirley Girl? It would get a dismissal of the tortious interference claim because Elements #3 and #4 of that claim would be unsupported.

The best news for Cammie is that even if Fitting Flair can challenge one or more elements of her complaint, she may be able to amend or refile it. If she feels Fitting Flair is wrong, she’ll respond with a line-by-line mapping of the elements with the facts. Below is an example using elements of breach of contract.

Element 1 –There must be a contract.

• Cammie’s facts. “The plaintiff and defendant had a written agreement to…”

Element 2–The plaintiff performed her end of the contract.

• Cammie’s facts. “The plaintiff consistently brought the allotted number of pieces to Fitting Flair on time by the terms of the contract.”

Element 3–The defendant breached the contract.

• Cammie’s facts. “The plaintiff and defendant had an exclusive contract whereby the only pocket pants the defendant sold would be ones made by the plaintiff. Despite this, the defendant sold pocket pants made by other designers.”

Element 4–The plaintiff suffered damages.

• Cammie’s facts. “By ignoring the exclusivity clause in the contract, the defendant caused sales of the plaintiff’s pocket pants to plummet. The steep decline in sales was due to the sales of other cheaper pocket pants of lesser quality.”

3. No factual allegations in the complaint.

Fitting Flair may state that there are no factual allegations in the complaint, only conclusions. Cammie must first understand the difference between facts and conclusions. If, after reviewing her complaint, she believes Fitting Flair has a point, she should amend her complaint to state the facts more clearly. Then she should ensure each fact addresses at least one of the elements in the claim and does not draw conclusions.

Conclusion–“Defendant’s behavior constituted a breach of contract”.

Fact–”The plaintiff and defendant had an exclusive contract in which the plaintiff’s pocket pants would be the only ones of its kind sold by the defendant. Yet, the defendant sold pocket pants made by other designers.”

If Cammie disagrees with Fitting Flair, she can reiterate her allegations line by line and explain why each is a fact rather than a conclusion.

4. The claims are not recognized by law.

In its motion to dismiss for failure to state a claim, Fitting Flair can allege that the plaintiff is suing for claims that are not recognized by law or statute. If true, this is probably the most harmful of allegations for failure to state a claim. The case can’t move forward. If the law doesn’t support the claim, Cammie can’t amend it. She must find another claim.

To prove Fitting Flair is incorrect, Cammie must support her claim using the laws of her jurisdiction. When she finds this support through legal research, she’ll insert the law(s) into her response to the motion and argue it at the hearing.

5. No injuries or damages are claimed.

Finally, Fitting Flair may assert that Cammie claimed no injury or damages in the complaint. If the assertion is true, Cammie should amend her complaint. If the assertion is not true, Cammie may need to clarify her damages and amend her complaint.

Cammie will use this analysis of Fitting Flair’s motion to argue that her complaint is sufficient to give the court authority to hear her claims. Responding to a motion to dismiss with this analysis indicates that Cammie has a Personal Practice of Law, the ability to defend her complaint by interpreting, applying and arguing the law that governs her claims.

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