Are Motions to Dismiss Really Necessary?

In summary, motions to dismiss can be worth the expense, because a well-written motion may have benefits and cost-savings beyond the mere disposal of a claim.

Litigation budgets today are tighter than ever, particularly in business cases. Clients understandably want to keep a close eye on the bottom line. Although no one disputes that a threshold motion to dismiss a complaint can be an effective way to obtain an early disposition in a case, the outcome is not always a sure thing.

Take a motion dismiss based on a statute of limitations. The subject matter may seem straightforward enough — the limitations period is a specified number of years, and the event either occurred within the period or not — but such is not always the case. There may be questions about which statute applies, for example. Or, the “event” may be continuing over a long period of time. Equitable tolling could come into play. The list goes on.

Given potential uncertainties, the trend today seems to weigh against early dispositive motions to dismiss, thus saving resources and reserving such issues for later in the case.
While that may be a sound strategy, clients should consider that motions to dismiss can serve other functions, beyond an outright dismissal.

First, a motion to dismiss allows for early presentation of your defense to the court, through your client’s eyes. Answers do not permit legal argument and persuasion. A well-written motion to dismiss can show the court how your client views the facts and the law, and can reap rewards down the line. The potential effect is intangible, to be sure, but experienced practitioners can attest to the importance of presenting your version of the facts to the court as soon as possible.

Second, a motion can make the plaintiff and plaintiff’s counsel aware of the weaknesses in their case. Seeing such issues in black and white — which they may never have considered — can have a profound effect, and may lead to a withdrawal or amendment of the complaint, or possibly an early settlement.

Third, a motion to dismiss can pare down the issues in dispute through partial rulings. A judge may find, for example, that a particular statute of limitations period applies, and dismiss some of the claims asserted in the complaint. Fewer claims now can lead to cost savings down the road. This possibility should be considered when evaluating whether to file a motion to dismiss.

Fourth, even if the court does not grant the motion, in whole or in part, the motion still may further your client’s defense in a significant way. Take the statute of limitations example. The court may decide that, although a specific limitations period applies, the timing of plaintiff’s discovery of the facts giving rise to the claim is not clear from the complaint, requiring denial of the motion.Yet both you and the plaintiff’s lawyer know that, eventually, the full record will show the plaintiff was aware of the facts early on, and that, at the summary-judgment stage, the plaintiff will lose the case.

As an example, I had a case where the court denied our motion to dismiss because the triggering of the limitations period was not completely clear from the pleadings, but the plaintiff knew he would eventually lose, and voluntarily dismissed the case. For the plaintiff, it was enough to see the judge rule that the limitations period would start on a given date, if the facts ultimately supported my client’s view of the case.

Lastly, if you are going to file a motion to dismiss, do it well. Slapping a quick motion together, just to get one on file, is pointless, and can actually damage your case. Take the time to draft a concise and persuasive motion that you and your client can take pride in filing.

So, when you and your client are deciding whether to file an early dispositive motion, consider these factors as you plan your budget.