Under the Federal Rules of Civil Procedure (FRCP), a party can move to dismiss a complaint for failure to state a claim upon which relief can be granted. Commonly referred to as a “12(b)(6) motion,” it has the potential to dismiss several of the plaintiff’s causes of action or the entire case. Thus, at first blush, filing such a motion can be particularly appealing, especially when one is served with a poorly drafted complaint. Before proceeding, however, it is important to consider whether it is the best strategy least you end up simply educating your opponent and incurring additional fees and costs. 

A motion to dismiss tests the legal sufficiency of the claims that are asserted in the complaint. In considering such a motion, the court is obliged to accept all of the complaint’s allegations as true and draw reasonable inferences from them in favor of the drafter. Further, in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the U.S. Supreme Court stated that “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 

At the outset, it must be stressed that the FRCP prohibits the filing of motions that are brought for “any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase in the cost of litigation.” See, FRCP 11. Assuming that you can argue in good faith that the plaintiff failed to state a claim upon which relief can be granted, should you move to dismiss? One point to consider is whether the case is likely to settle or have protracted discovery and ultimately go to trial. Strategy Pointer #1: If settlement is likely, drafting a strong motion to dismiss followed by a letter to the opposing party to entertain settlement discussions may facilitate an early and favorable settlement of the case. The plaintiff may not want to risk having your motion granted and the entire complaint dismissed. 

On the other hand, a well-researched motion may provide the plaintiff with knowledge and the impetus to amend its complaint thereby making it even stronger and more difficult to defeat. Indeed, Rule 15(a) of the FRCP provides plaintiff the right to amend a pleading “once as a matter of course” within 21 days after service of a motion to dismiss. Further, courts frequently grant leave to amend thereby giving the plaintiff a second chance at strengthening its complaint. Researching your judge’s prior rulings on motions to dismiss can shed light on how your motion may fare. The bottom line is, after incurring the fees and costs of a motion to dismiss you may be faced with a stronger amended complaint. 

Consideration should also be given to the fact that the plaintiff will merely have to show a plausible claim to relief to successfully defeat a motion to dismiss. Strategy Pointer #2: Therefore, you may want to forego filing a motion to dismiss, conduct discovery, and move for summary judgment. FRCP 56 states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Thus, plaintiff must demonstrate an issue related to a material fact to defeat a motion for summary judgment—which is a more difficult feat. Careful analysis of the above factors will help determine if moving to dismiss is the best strategy to pursue. –