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 the motion to dismiss, a pro se litigant must address the following potential responses.

  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 set 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 distributorship 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.

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For a year, all went well. Then Cammie’s sales started to nosedive. She went to Fitting Flair to determine what the problem was and saw pocket pants that she hadn’t made. Eventually, Cammie came to believe that the cheap pocket pants she’d found in the store were the reason for 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 allege failure to state a claim, the defendant, Fitting Flair, will try to defeat these. It might say any of the following:

  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 and address each of the defects above. She must cure each of them.

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 doesn’t have a point, she’ll respond to the motion by pointing to cases that say that 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 Fitting Flair does with its case.

  1. 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 match those elements with 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 a full dismissal, Fitting Flair needs only to knock out one element for each claim. Let’s say that in its motion to dismiss, Fitting Flair asserts that Cammie has not claimed damages. That’s element 4 of the breach of contract claim. If Fitting Flair proves this, it wins a motion to dismiss on that claim.

What if Fitting Flair goes on to prove 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 entire case because elements 2 and 3 of the tortious interference count would be gone.

The best news for Cammie is that even if Fitting Flair can knock out one or more elements of the complaint, she may be able to amend or refile it. If she feels Fitting Flair has no point, she’ll respond with a line-by-line matching of the elements with the facts. Below is an example of that using the elements for 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.”

No factual allegations in the complaint. Fitting Flair can say that there are no factual allegations in the complaint, only conclusions. Cammie first must understand the difference between facts and conclusions. Then, if after her review of the complaint, she believes Fitting Flair has a point, she should amend her complaint to state the facts clearly. Then, she should make sure that 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.

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 find support for her claim in the laws of her jurisdiction. When she does this, she’ll insert the law(s) into her opposition to the motion and argue it at the hearing.

No injuries or damages. Finally, fitting Flair can allege that Cammie claimed no injury or damages in the complaint. If the allegation is true, Cammie should amend her complaint. If the accusation is not true, Cammie might have to be clearer about her damages and still amend her complaint.

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Melissa McAllister
February 27, 2023 4:59 pm

This helped me tremendously today! I have a hearing tomorrow and this definitely helps me write up my argument. Thank you!!!

Reply to  Melissa McAllister
April 12, 2023 3:17 pm

Can I get a atorney to do my response to motion to dismiss??

Oliver Gooley
Reply to  Melissa McAllister
January 28, 2024 8:42 am

How did your hearing go? I have one on a couple of weeks.

Heidi Wood
February 28, 2023 11:58 pm

Yeah it helps me too, opposing counsel filed this, in an addition to a request for attorney fees. It’s a custody modification request and I used the state forms🥹😩🙈

Oliver Gooley
Reply to  Heidi Wood
January 28, 2024 8:41 am

How did this go? Something similar is happening to me now.

April 15, 2023 2:10 am

Many, many THANKS for this…

September 22, 2023 2:49 am

I am try to get help to learn how to write the factual bs khround in responding to a motion to dismiss for failure to State a claim

Susan Braswell
March 13, 2024 11:29 am

Trying to file on a response to me not doing tge state of claim issue. Trying to sue my homeowners insurance for breach of contract, bad faith and negligence in that I told the adjuster gor the insurance company that my lawyer’s public adjuster may be committing fraud by sending in fraudulent amounts from work from a company he owns or is affiliated with that sent a guy out to do a packout and demolition and didn’t finish either yet still got paid by the insurance company based on what the lawyers public adjuster sent him. Even though the lawyer’s public adjuster sent out a estimate, it was for a “demolition”. I signed a Work Authorization for a “mold remediation” with the demolition guy which is a whole other process. I asked for receipts and invoices for the roll offs, amounts to his kids he hired and how much he was paying them, the tools he bought himself, I mean everything and that includes when they did the packout. Not only did he not perform the work as a demolition correctly, he didn’t perform the mold remediation and his kids caused damage to the house and some of my belonging in the storage units they got. I am missing some silver coins also I was saving for my grandchildren. The guy who did this packout and so-called demolition wouldn’t respond to my requests. There was an electrician the public adjuster sent out to and I asked hom how he knew him and he acted like he didn’t know the public adjuster. Come to find out that this public adjuster has 10 shell companies, including this restoration company he sent,all at the same address in Douglasville, Ga in an empty building. Of the insurance company didn’t cut off and close my claim right after their structural engineer came ( their “yes” man), I wouldn’t have had to get a lawyer in the first place. Yet, the 3rd party adjuster that the insurance company had was alerted to this but never stopped to do an investigation nor did they alert the insurance company this was going on. The lawyer was able to cash his portion out if the allocation check without mine nor the mortgage company’s signatures. Also, the lawyer was also able to do the same for $30,323 allocated to the restoration company, which is the public adjuster’s company on the side, with my signature, too. Who allowed this? Was it the adjuster fir the insurance company or did the lawyer and his public adjuster do some underhanded thing to get their money without finishing getting my floors damage incorporated into the claim and not ever finishing the packout process nor the demolition/mold remediation process. My house is still gutted put and I am a disabled veteran. I am breathing md and debris every day since September 2023.