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Strategic Motions to Dismiss (or Lack Thereof)

By Mark Thomas Smith

Your client just got sued. Of course, as a young lawyer, your first reaction is to come out swinging. The other side is claiming what? Preposterous! You immediately suggest a motion to dismiss.

Stop. Before putting pen to paper and drafting what will certainly be a judicial masterpiece, consider whether filing a motion to dismiss will best serve your client’s interests. Filing a motion to dismiss should not be an automatic response to a sloppy complaint. This article explores some strategic considerations that must be weighed in each case before moving to dismiss under Federal Rule of Civil Procedure 12(b)(6).[1]

Why We Do It
The potential upside of filing a motion to dismiss—dismissal—is very appealing. The court may dismiss several causes of action and maybe even the entire case. Your client will love you. The potential prize and praise is often enough to entice defense lawyers to take a shot at dismissal, almost as a matter of course.

In addition to the potential benefits, something in our lawyerly personality makes us want to scream, “The complaint is insufficient! Tell everybody who will listen!” Perhaps this is the same inner voice speaking to partners across the country as their upper cheeks twitch when the red pen in their hand crosses out the phrase “the group was waiting to vote” and replaces it with the grammatically correct “the group were waiting to vote,” just to show the young associate that grammar is not a lost art, and then crosses that out for the preferred “the group waited to vote.”[2] In other words, it is hard for most lawyers to let things slide.

A Moment to Reflect
Please don’t misunderstand. Filing a motion to dismiss can be, and often is, a great strategy. Taking a moment to reflect before making the decision to file, however, is what differentiates a good lawyer from a great lawyer. This deeper analysis may help win your case and win points with your client.

So let’s start with the law. First, Rule 11 basically states that one should not file frivolous motions.[3] There it is. Step one: Did the plaintiff fail to state a claim upon which relief can be granted?[4] Only if you can argue in good faith that the plaintiff failed to state a claim upon which relief can be granted should you move on to step two.

Okay. There is no step two, per se. It would be folly to create a checklist entitled “Five Easy Steps to Determine Whether to File a Motion to Dismiss.” Instead, a deeper analysis more akin to multi-factor balancing tests used by courts will guide you to the right result.

Settlement or Trial?
Let’s presume that you just received an antitrust complaint that was served on one of your big clients. The plaintiff’s firm has a general litigation practice with no real expertise in antitrust. The complaint is in the ballpark, but it is, in a word, sloppy. Thus, you have some strong arguments that the entire complaint should be dismissed for not stating a claim upon which relief can be granted. Your initial reaction is to file a motion to dismiss to show those antitrust novices that you know what an antitrust complaint should look like—and what they served on your client was not it.

But not only are motions to dismiss hard to win, but also the plaintiff will almost certainly be granted leave to amend, and the new complaint will be better than the first, making it more difficult to defeat. So before moving to dismiss, take the time to examine the context of the lawsuit.

Is this case likely to settle, or is this a case that will go the distance? If you believe settlement is possible (or better yet, likely), it may make sense to throw some strong arguments for dismissal back at the plaintiff and follow up your motion with an invitation to the settlement table. After getting a healthy dose of “this is what you have to look forward to” in your motion to dismiss, the plaintiff may be more willing to settle. Thus, in the context of a case that is likely to settle, a strong motion to dismiss may (1) lead to an eventual dismissal without leave to amend, or (2) facilitate a cheap settlement.

But what if settlement is unlikely? Perhaps the parties have some deep-seated animosity toward one another. Maybe a legitimate business justification is preventing a reasoned settlement—for example, a patent case in which the plaintiff is seeking an injunction to push a competitor out of the market. Perhaps the plaintiff feels the need to obtain some discovery valuing its claims. In any case, how does removing the potential for a cheap settlement change the equation?

Take some time to review the facts of our case study. A sloppy antitrust complaint from a general litigation firm with no real antitrust experience gives you strong arguments to win a motion to dismiss. If you file a motion to dismiss, you will undoubtedly cite the leading cases on the issues raised in the complaint. In other words, you are giving the plaintiff free legal research. The sloppy antitrust complaint from the antitrust novices indicates that the plaintiff’s lawyers may not fully grasp the antitrust body of law. Why help them? The risk is that the plaintiff’s lawyers will read your motion to dismiss, read the cited case law, and then amend the complaint, thereby making it stronger. Now, as a result of your motion, you are facing a more pointed complaint and a more knowledgeable opponent. And what was the potential benefit? Dismissal without leave to amend; a great benefit, but one that is difficult to obtain.

Additionally, you may have diminished a significant strategic advantage you would have had in discovery. Had you not shown your hand early in a motion to dismiss, the plaintiff would have had to work through discovery with a sloppy complaint. The sloppy complaint may have caused the plaintiff to concede certain points that can now be avoided after a round or two of motion practice focused its theme and arguments. A legitimate strategy is to skip the motion to dismiss, even where you might win a dismissal with leave to amend, and then seek admissions in discovery that fill the holes found in the complaint. Once discovery helps build your case, file a motion for summary judgment, which has the additional benefit of a more favorable standard of review than does a motion to dismiss.[5]

You must try to balance, among other things, attempting to dismiss the case early on, pushing for a cheap settlement, and protecting a strategic advantage for use later in the case. By moving to dismiss, you are hoping for either a dismissal without leave to amend, or a cheap settlement. But in return, you will likely show your opponent your theme of the case and some of your strong arguments. While that may be good for settlement, it may be bad for collecting discovery down the road. Every extra day the plaintiff knows your theme means more time for the plaintiff to develop a counter-theme, to make strategic discovery requests, and to analyze your arguments for weaknesses. In our case study, forgoing the motion to dismiss may be the better strategy by preserving strategic advantages in discovery.

You Never Get a Second Chance to Make a First Impression
An old saying goes something like this: A good lawyer knows the law, but a great lawyer knows the judge. As a result, part of your pre-filing diligence should include an educated guess about the judge’s reaction to your motion.

First, do you want this to be the judge’s first impression of you and your client? An overarching theme throughout the judiciary is the conservation of resources. If the judge’s first impression is that you are going to consume more than your fair share of those scarce resources by filing every possible motion, you may be doing a disservice to your client. When you file a motion, you want the judge to know an important matter must be decided; you don’t want the judge’s eyes to figuratively roll as the paper piles up on the bench with your name on it. A motion to dismiss that the judge believes wasted judicial resources may put you in a difficult position when you come back to the judge with subsequent motions.

Second, know your judge—not in the golfing buddy sense, but by reading up on your judge’s past opinions on motions to dismiss. In some jurisdictions, opinions may be difficult to find, but they are out there. You may get a sense for how your judge feels about motions to dismiss and how your arguments will be received.

“I’m Not Made of Airports!”
For the most part, clients know that legal services are expensive. (If you haven’t heard, word is out to the general public—and they’ve started making jokes[6] about it.) Some clients are more cost-sensitive than others, but all of them want to avoid unnecessary expenses. To that end, the bottom-line cost to the client must always be kept in mind.

By revealing your themes and best legal arguments in a motion to dismiss, you will teach the plaintiff how to make its case stronger and reveal areas of potentially useful discovery.

The stronger the plaintiff’s case becomes, the more expensive the case gets for your client, either in a later dispositive motion, trial, or settlement. And more discovery means greater discovery expense.

The time and money associated with the motion should also be weighed against the time and money associated with forthcoming fact discovery. The amount of money spent on motion practice should be relatively steady, keeping in mind that complex issues will be more costly. The amount of money spent on discovery, however, can vary greatly from case to case.

If fact discovery is anticipated to be expensive, like in most antitrust cases, taking a shot at dismissal seems more appealing. Conversely, if the facts are relatively low in number or undisputed, waiting to spring your brilliant arguments until a more favorable level of review is available may make more sense. In the long run, waiting until summary judgment may save your client:

  • the money saved by not having to draft the motion to dismiss
  • the money saved in not giving your opponent more time to develop a response to your arguments, thereby potentially defeating your motion for summary judgment
  • the money saved in a potentially less contentious discovery process as a result of your opponent not knowing your case theme and, thus, not going to war over your key discovery requests.

“My Reputation, Iago, My Reputation!”
Sometimes a motion to dismiss has other strategic uses. For example, if the complaint contains blatantly misleading or false allegations, a quick motion to dismiss can serve to get the judge on your side early in the case. However, this strategy may only be used in limited situations. Most courts can only consider the allegations in the complaint, exhibits submitted with the complaint, and documents “whose contents are alleged in the complaint and whose authenticity no party questions.”[7] Thus, if the plaintiff alleges a misleading interpretation of the terms of a
previous settlement between the parties, for example, you can use a motion to dismiss to get that previous settlement in front of the judge early in the case—thereby harming your opponent’s credibility and boosting your own—before your opponent amends the complaint to correct the misleading allegation.

The decision whether to file a motion to dismiss may also be influenced by the amount of bad press your client receives from the complaint. For example, the complaint filed against then President Clinton in Clinton v. Jones,[8] was, ahem, strongly worded. President Clinton’s motion to dismiss was based on an important legal theory—immunity—but the need for an immediate response to the colorful complaint was likely taken into consideration. Although you are presumably not representing any sitting presidents, your client’s reputation must nonetheless be protected. Sometimes a promptly filed motion to dismiss can soften the sting of a harshly worded complaint. Even if the motion to dismiss does not get a lot of press, hopefully your client will at least feel better knowing that “the lawyers are on it.”

Before moving to dismiss, ask yourself why you are making the motion. If the answer is “because I can,” then perhaps you haven’t thought enough about the decision. Moving to dismiss may needlessly consume money and judicial resources, and forfeit strategic advantages in discovery. Discuss the potential risks and benefits with your clients before filing. Last, make an objective prediction on the likelihood of fulfilling the goal behind your motion to dismiss. So yes, young lawyer, you may file that motion to dismiss—but only now that you understand what you and your client have to gain and what you and your client stand to lose.

Key words: Motion practice, motion to dismiss

Mark Thomas Smith is with Cooley Godward Kronish LLP in Palo Alto, California.


End Notes

  1. “Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: . . . (6) failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).  
  2. See C. Edward Good, A Grammar Book for You and I . . . Oops, Me! 310–12 (Capital Books, Inc. 2002) (explaining that the verb should be singular when a collective noun—group—acts as a whole, but the verb should be plural in this case where each individual member of the group is waiting to vote individually, even without the prepositional phrase “of citizens”). So although admittedly awkward, saying, for example, “the team are dressing for the game” is grammatically correct. Id.
  3. See Fed. R. Civ. P. 11(b).
  4. Fed. R. Civ. P. 12(b)(6).
  5. To win a motion to dismiss, the defendant must show that the plaintiff did not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). In contrast, to win on a motion for summary judgment, the defendant has to show “there is no genuine issue as to any material fact.” Fed. R. Civ. P. 56(c). Thus, the plaintiff simply has to show a plausible claim to relief to overcome a motion to dismiss, but must demonstrate an issue related to a material fact to overcome a motion for summary judgment.
  6. In the classic cartoon the Simpsons, an admissions officer from Yale tells Mr. Burns that, based on his son’s terrible test scores (he spelled Yale with a 6), Mr. Burns will have to donate an international airport for his son (voice of Rodney Dangerfield) to gain admission to Yale. Mr. Burns, with his checkbook drawn, replies: “Are you mad?! I’m not made of airports! Now get out!” The Simpsons: Burns, Baby Burns (Fox Network television broadcast Nov. 17, 1996).
  7. Van Winkle v. Allstate Ins. Co., 290 F. Supp. 2d 1158, 1162 n. 2 (C.D. Cal. 2003).
  8. Clinton v. Jones, 520 U.S. 681 (1997).


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