Reconsidering pre-answer motions

Inside Counsel

Authored Article


A motion to dismiss filed unwisely may result in a well-written, well-argued, but very expensive motion that actually harm your interests

You receive a complaint and forward it to your outside counsel requesting that the firm defend the company’s interests. You then think back to your experiences as a junior associate when you were asked by a partner, “How should we answer?” A trick question, of course, because in your delay in responding, the partner screams “WE DON’T ANSWER, WE MOVE TO DISMISS!” This is a common reaction: Come out guns a-blazing to dismiss these specious allegations against the venerable client.

Although this course of action is appealing because a win on a motion to dismiss vindicates the litigator and ends the case, it is worth pausing to consider the strategic implications involved with filing pre-answer motions. Encourage your outside counsel to put the litigator muscles away and take a long view of not only the case, but your company’s interests. Here are a few strategic considerations to be considered prior to filing a motion to dismiss.

Rule 11

The Federal Rules, and most state rules, of Civil Procedure prohibit filing frivolous or delaying motions. Your first question to discuss with counsel: Do the allegations fail to state a claim upon which relief can be granted? The general rule in both state and federal court is that when reviewing a motion to dismiss, the court must treat the well pleaded allegations as true. If in good faith you can assert that the plaintiff failed to state a claim, move to the next stage of the analysis.


Federal court provides defendants with advantages when filing motions to dismiss against a poorly worded complaint, opposing counsel working in an area out of his or her expertise, or apro se plaintiff. The first is that the motion delays the time for initial attorney conferences, and more importantly, discovery and scheduling deadlines. The second is the U.S. Supreme Court decisions Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009), which some argue substantially heightened federal pleading standards.

It’s a different story in state court, as most states have not adopted the rulings and rely on notice pleading, i.e., whether the allegations place a party on notice of a cause of action. Moreover, state courts who do not utilize scheduling orders or who utilize “rolling” trial calendars allow a case to move along even when dispositive motions are pending. The motion may not be heard for some time, limiting the time available to conduct discovery and prepare for trial.

Educating the plaintiff

The primer on the nuances of properly pleading a violation of the unfair trade statute or the Jones Act may be a masterpiece of legal work product, but it may also educate the plaintiff on the law and provide the plaintiff with legal research paid for by you. Motions to dismiss can be hard to win and in many cases, the court will allow the plaintiff to amend the complaint. The plaintiff is now in possession of not only the legal research, but also all of the required elements of a cause of action needed to revise the complaint. The motion may also identify defenses, the theory of the case, and the key areas for discovery.


Many lawsuits grow out of extended business relationships or disputes with some history of discussion, limited compromise and failed negotiation. Is this a case which can be settled, or is the plaintiff going to take this dispute to the mat? Motion practice can be expensive. Most state courts require hearings for all motions and will not decide the motion on the papers. This means time spent preparing for oral argument, travel time getting to court, and in smaller counties, a day spent waiting for the motion to be called. All for naught if the court allows the party to amend. Moreover, the motion may cause the plaintiff to dig in, offended by the argument the complaint is “specious.”

Know the audience

The motion is also the first impression of the company and counsel to the judge. As such, it is best to consider how this judge perceives 12(b) motions. As delay tactics used to increase litigation costs or as legitimate tools to narrow issues? How has this judge ruled on this issue in the past? The answers to these questions may be hard to find in certain jurisdictions, but they must be considered prior to filing.

Legal services are expensive, and both in house and outside counsel are called to be good stewards of the company’s resources. A motion to dismiss filed unwisely may result in a well-written, well-argued, but very expensive motion with second and third order effects that actually harm your interests. It may be better to keep the powder dry and look toward a motion for summary judgment. This course of action may result in higher angst in the short term, but provides greater advantages and freedom of movement and may even be more cost efficient. Review the cost/benefit analysis before filing and seek an objective prediction on the likelihood of success of a motion to dismiss. If the discussion and analysis suggest that a motion to dismiss stands a chance of ending the case early or forcing a quick settlement, file away.

Republished with permission. This article first appeared in Inside Counsel on September 25, 2014.