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Strategic Considerations Before Moving To Dismiss under FRCP 12(b)(6)

Strategic Considerations Before Moving To Dismiss under FRCP 12(b)(6)

Filing a motion to dismiss should never be done as a routine matter of course.  Certain strategic considerations should be made before moving to dismiss under Federal Rule of Civil Procedure 12(b)(6).

Here are some important considerations:

  • Thinking Thoroughly 

Filing a motion to dismiss may indeed be the best strategy for your present case.  Still take a moment to reflect before making the decision to file.  Ponder over all the fundamental questions.  Think for your client – is the gamble worth it?  This deeper analysis may help win your case and win points with your client.

  • Understanding the law

Make sure you are well versed on all aspects of the law governing a motion to dismiss.  Read and research all the latest case law on the subject.  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 forward with the motion.

  • Settlement or Trial 

Analyze the prospects of the case – is this case likely to settle, or will it go the distance?  Remember motions to dismiss are not only hard to win, but there are also chances that the plaintiff will be granted leave to amend the complaint, and the new complaint can be better than the first, making it more difficult to defeat.  If you believe that settlement is highly likely, then consider a different strategy.  Throw in some strong arguments and basis for dismissal at opposing counsel and follow up your motion with an invitation to settle.  Thus, if the case is one that is likely to settle, a strong motion to dismiss can lead to an eventual dismissal without leave to amend or pave the way to a discounted settlement.

However, if your analysis leads you to believe that settlement is an unlikely option you need to carefully plan your next move.  When filing a motion to dismiss, you will need to cite all the leading cases on the issues raised in the complaint.  In other words, you are giving the other party free legal research.  This can be risky as the other party may amend the complaint after reading the points cited in the motion to dismiss and thereby come with a stronger complaint.  Also, by filing the motion to dismiss you diminish the advantages you would have had in discovery.  That is if you had not pointed out the weak points in the compliant, the plaintiff would have had to work through discovery with a weaker complaint.

Generally speaking, the chances of winning a motion for dismissal without leave to amend are slim and even if there is a chance, a legitimate strategy would be to skip the motion to dismiss.  You can seek admissions in discovery that fill the holes found in the complaint.  Once discovery bolsters your case, file a motion for summary judgment, which has the added benefit of a more favorable standard of review than a motion to dismiss.

Whatever the scenario, remember to weigh your options carefully.  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.

  • Know your Judge

A good lawyer knows the law, but a great lawyer knows the judge – so goes the old saying.  Ensure you know your judge by reading up on the judge’s past opinions on motions to dismiss.  This will help you to better understand how the judge feels about motions to dismiss and how your arguments will be taken.  Alternatively, you can call the court clerk and ask if the judge has any particular rules you should be aware of.

Moving to dismiss can be costly, it will consume judicial resources, and diminish your strategic advantages in discovery. Therefore before moving to dismiss, think twice.

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