Motion to Dismiss Strategy: When an Early Exit Makes Sense
Motion to Dismiss Strategy in Your Litigator’s Toolkit
In my first installment of this series, I started with a broad overview of the many ways in which cases can be dismissed, or even won, before trial. The first of these exit ramps we encounter is the motion to dismiss. This is where we first answer the question: “Can’t we just get the case dismissed?”
Often, the answer is yes, but at a cost. And a dismissal may only force a plaintiff to refile its complaint to correct a fatal but fixable problem. To understand this, we must first look to the process and procedure. In federal court, and many state courts, the “motion to dismiss” is a test of the complaint (also known as a petition in some states). An otherwise well-pleaded complaint may be missing a key allegation or jurisdictional hook that creates a situation where even if the court were to assume that everything alleged in the complaint were 100% true, the plaintiff would still not be entitled to any relief. This is actually the standard the courts use at this stage.
Grounds for a Motion to Dismiss in Federal Court
A motion to dismiss is filed at the beginning of the case in place of the answer to the complaint. In federal court, this delays the necessity of filing an answer until 14 days after the court rules on the motion. There are seven categories of defects that can serve as a basis for a motion to dismiss in federal court: 1) lack of subject-matter jurisdiction; 2) lack of personal jurisdiction; 3) improper venue; 4) insufficient process; 5) insufficient service of process; 6) failure to state a claim upon which relief can be granted; and 7) failure to join a party. Number 6, “failure to state a claim” is probably the most common.
What Courts Consider on a Motion to Dismiss
Because the motion to dismiss merely asks the court to pass judgment on the adequacy of the complaint, a defendant does not get to tell their story or submit facts to undermine the plaintiff’s allegations. The court can only look within the four corners of the complaint, must accept all allegations as true, and then assess whether or not the complaint meets the pleading requirements. But the court does not engage in this analysis unless prompted by the defendant’s motion. And explaining to the court why the complaint fails even if it is accepted as true usually takes a substantial amount of briefing.
A good plaintiff’s attorney will know how to hide the factual deficiencies. The briefing may have to peel back the layers to show where the plaintiff has disguised speculation or supposition as facts. The plaintiff may be relying on implications that are not actually supported by the allegations. There may be contradictions in the allegations and contractual language where the contract would control as a matter of law. Subtle nuances in the law may make seemingly sound allegations fail. There are innumerable ways in which a well-drafted complaint fails upon deeper analysis and the job of the motion to dismiss is to point those out and walk the court through the analysis. And all of this is done in front of the backdrop of very lenient pleading requirements.
Pleading Requirements and Jurisdictional Missteps
The pleading requirements for a complaint are extremely low. In order to demonstrate a claim for relief, a complaint only needs three things: 1) a short and plain statement of the grounds for the court’s jurisdiction; 2) a short and plain statement of the claim showing that the pleader is entitled to relief; and 3) a demand for the relief sought. Ordinarily the first requirement should be easy, and attorneys generally are careful to file a complaint in the right court. However, mistakes of fact can create jurisdictional issues. For example, federal courts generally hear two types of cases. The first type considy of those that involve federal law, but the second type—called diversity jurisdiction—only permits a federal court to preside over state law claims if the parties are from different states and the amount in controversy is over $75,000. (The amount in controversy was originally $500, raised to $2,000 in 1887, and has been amended over the years to roughly—very roughly—keep up with inflation. This amount was last updated in 1996 when it was increased from $50,000 to the current $75,000.)
If the plaintiff fails to allege this threshold amount, a federal court will not have diversity jurisdiction. Likewise, if a plaintiff fails to allege that the parties are from different states, the case will be dismissed for lack of jurisdiction. However, in both instances, there is generally nothing preventing the plaintiff from refiling the case in state court. Missteps like this rarely happen—should never happen—but sometimes do. For example, a limited liability company’s state of residence is determined by the residences of its members. A plaintiff may not know at the time of filing where each member resides. Thus, a diversity jurisdiction case filed by a Texas resident, in Texas federal court, against an LLC located in Oklahoma will be dismissed if one of the LLC members resides in Texas. This is true even if there are 100 members and only one resides in Texas. Diversity must be compete. While this is an absolute requirement, it only applies at the time the complaint is filed, so if a party later moves in-state, it will not create a jurisdictional problem.
Failure to State a Claim: Fixable vs. Incurable Defects
A failure of the next requirement—“a short and plain statement of the claim showing that the pleader is entitled to relief”—is the most common basis for filing a motion to dismiss. This usually occurs where a plaintiff fails to fully allege each element of a cause of action it seeks to pursue. This can happen in both state and federal court. Sometimes this results from oversight or poor drafting. Such mistakes are easily remedied and most, if not all courts will provide the plaintiff with an opportunity to amend to correct the error.
However, sometimes the error cannot be corrected. First, at a minimum, the allegations need to raise a right to relief above the speculative level. Yet, sometimes a plaintiff has little more than suspicions about the defendant’s actions and how they might be damaging, without having actual evidence of damage. In these cases, plaintiff’s attorneys often engage in creative writing to disguise the inadequate allegations. But keep in mind this is not the same as making up facts. Unfortunately, an unscrupulously drafted complaint may very well state a viable cause of action and will not be a good candidate for dismissal at the pleading stage. Those types of complaints will be addressed in the next two articles in this series.
Heightened Pleading Standards in IP and Fraud Cases
Another way in which complaints are often inadequately plead, involves misunderstandings about subtleties of the law in specialized fields such as intellectual property law. There are a handful of areas of the law that have heightened pleading requirements or specific prerequisites to filing. For example, to file an action for copyright infringement, the copyright must first be registered with the copyright office. This was not always the case in different parts of the country, but in 2019 the Supreme Court held that registration was a required prerequisite to filing a copyright infringement action. If a plaintiff tried to get around that restriction and bring a common law unfair competition claim based on what were really copyright infringement allegations, it would be preempted by federal copyright law and subject to dismissal. In the trademark infringement realm, one of the elements a plaintiff must demonstrate is a likelihood of confusion between the plaintiff’s trademark and the one used by the defendant. But the allegations in the complaint must demonstrate a probability of confusion and not just a plausibility. This is a stricter standard than the normally lenient pleading standard that only requires a plaintiff put the defendant on notice of what it is claiming. Fraud claims have an even stricter pleading requirement—requiring the plaintiff to allege the “who, what, where, and how” of the fraud. Specialized practices like securities fraud have even stricter pleading requirements.
In many of these instances, the plaintiff may simply not have enough information to meet these stricter pleading requirements. In these cases, amendment would be futile and those cases will be dismissed without an opportunity to amend.
When a Motion to Dismiss Makes Strategic Sense
With this, we can begin to extrapolate some strategic considerations. A motion to dismiss is less likely to succeed if the complaint is well-drafted, only has claims subject to the ordinary lenient pleading standards, and where an opportunity to amend can fix any pleading defects. Conversely, poorly drafted complaints, claims with incurable defects, and claims that are subject to heightened pleading requirements are better candidates for a motion to dismiss. Errors in these complaints are less likely to be cured with an amendment and can result in permanent dismissals. Also, it is important to consider that a motion to dismiss is not an all-or-nothing proposition. It is not unusual to have some but not all claims in a complaint dismissed. This can help narrow the scope of the discovery process and reduce litigation costs.
Is a Motion to Dismiss Worth the Cost?
Unfortunately, a motion to dismiss is not a magic wand, but it can be a powerful early filter for claims that are legally deficient. Whether or not it makes strategic sense is a balance of the cost of the briefing, the potential for success, the potential future savings, and other considerations such as the delay it affords in filing the answer and asserting any counterclaims. These are all issues that should be discussed with your litigation attorney.
Klemchuk PLLC is a leading IP law firm based in Dallas, Texas, focusing on litigation, anti-counterfeiting, trademarks, patents, and business law. Our experienced attorneys assist clients in safeguarding innovation and expanding market share through strategic investments in intellectual property.
This article is provided for informational purposes only and does not constitute legal advice. For guidance on specific legal matters under federal, state, or local laws, please consult with our IP Lawyers.
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