Delegating on a Deadline: Opposing Motions to Dismiss

Civil Procedure Rule 12One of my last posts considered a defendant making a motion to dismiss; now let’s consider the plaintiff who is facing one.

Even after the U.S. Supreme Court’s decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal, the Rule 8 pleading standard favors plaintiffs. There are no “magic words” for pleading a claim.

What’s required now is more facts, and the best time to get them is in pre-suit investigation. Gather your client’s records and obtain authorization to get third parties’ records. Request publicly-available information. Visit everyone’s websites. If a physical location or physical evidence is important, find it and learn about it. Locate surveillance tapes and mobile-phone videos. If there are gaps in your client’s knowledge, speak to others. Compile your findings into a well-organized file that will help you build a chronological narrative of the facts.

As you draft the complaint, keep Rule 12(b)(6) in mind. The court will take your allegations as true, so include facts establishing each element of every claim. Research recent cases that have survived 12(b)(6) motions, or where dismissals have been reversed on appeal, and focus on cases with comparable facts and legal theories. Wherever courts find similar allegations state a claim (or don’t), compare those allegations to yours. Where a court describes allegations as “conclusory,” be sure you don’t rely exclusively on similar allegations. Keep your research in a file—it will save time if a motion is made.

When the motion is made, look to the federal court’s local rules and preferences for your time to respond (Local Rule 7.1 in the District of Minnesota). Time will be short. Your investigation and research files will help you respond quickly, whether you’re writing the brief yourself or delegating it to an associate or freelance attorney.

Karin has been a litigator at Debevoise & Plimpton; a law clerk to three Minnesota federal judges; a legal writing teacher at NYU Law, William Mitchell College of Law, and the University of Minnesota Law School; and a sole practitioner and freelancer in Minnesota… MFAN Bio | Email | Web | LinkedIn | Google Plus | MFAN Posts

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