Delegating on a Deadline: Motions to Dismiss
Everybody knows the longer a case goes on, the more money you spend, and that the closer you get to trial, the faster you spend it. If it’s a case you don’t want to try, or believe you shouldn’t have to try, dispositive motions offer a way out.
Dispositive motions—motions to dismiss, motions for summary judgment—are the kind that make or break the case. You get one good shot, and your motion must make it obvious to the court why the case should proceed no further.
Since the U.S. Supreme Court’s decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal in 2007 and 2009, respectively, motions to dismiss under Federal Rule 12(b)(6) have experienced a renaissance. These motions are directed to the allegations of the complaint, and may be filed instead of an answer within the 21 days provided by Rule 12.
Let’s say your client gets served with a federal complaint and must choose—soon—whether to answer or dismiss. Research into current pleading standards is critical. Ideally, you’ll need cases with similar factual allegations that were dismissed under Rule 12(b)(6). Compare those allegations to your complaint; if similar cases get dismissed, there may be grounds for a motion. Remember that procedural posture matters: cases dismissed after discovery on motion for summary judgment, or after trial, or on appeal, will provide little support for the argument that a claim was not properly pleaded.
Done right, a motion to dismiss can quickly end a case that has no chance of success. If not well supported by proper authority, however, it can be an expensive shot in the dark. Because sophisticated research is essential and time is short, motions to dismiss can be a great project to delegate to an associate or a freelance attorney.
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