How to file motion to dismiss
Drafting a Motion to Dismiss
Timecodes:
what factors should one consider when
deciding how to file a motion to dismiss
what techniques should the individual
use to maximize its persuasiveness and
ultimately the likelihood of success on
the merits we'll look to answer those
questions provide writing tips to ensure
that emotions dismisses well-written and
persuasive and offer an example of a
motion to dismiss a motion to dismiss is
a powerful weapon in a defendant's
arsenal it protects clients against
nonmeritorious lawsuits promotes
judicial economy and facilitates the
speedy resolution of frivolous cases in
federal courts the motion to dismiss is
governed by rule 12 B of the Federal
Rules of Civil Procedure which provides
specific grounds upon which a person can
move to dismiss a complaint under
federal law and in most jurisdictions
one can move to dismiss a complaint for
the following reasons among others lack
of personal jurisdiction lack of subject
matter jurisdiction improper venue
improper service and failure to state a
claim upon which relief can be granted a
defendant can seek to have a complaint
dismissed for more than one reason such
as lack of service of process and
failure to state a claim upon which
relief can be granted one can also move
to dismiss the entire complaint or only
specific causes of action of course if
the defendant is only asking the court
to dismiss certain claims those claims
must be specified ultimately the
defendant should think thoroughly about
the likelihood of success before filing
a motion to dismiss and should not
include weak or substandard arguments as
they will likely detract from the
strongest arguments judges review
motions to dismiss with exacting
scrutiny notwithstanding that motions to
dismiss are granted regularly
demonstrating that they are clearly
appropriate in some cases and the
quality of the writing directly affects
the chance of success after deciding to
file a motion to dismiss while drafting
it a defendant should adhere to the
following suggestions and guidelines to
write the most effective and persuasive
motion possible one write a short and
clear introduction to draft a factually
accurate narrative three know the
standards that
must be met and craft an explanation of
the standards for used the most
persuasive components of the relevant
law and five apply the law to the facts
in a convincing and credible manner
let's start with the introduction an
introduction does not need to be
long-winded but should provide some
general facts and analysis and let the
court know that the motion seeks
dismissal of the plaintiffs complaint in
the introduction one can choose to
discuss the applicable legal principles
since the defendant will provide
citations and cases and statutes and
other authorities later in the motion
it's not necessary to provide them in
the introduction courts deal with motion
to dismiss frequently so one should in
most instances omit a detailed
explanation of the law in the
introduction of the motion to dismiss
however the introduction should at least
mention the applicable law below as an
example
introduction where the defendant is
moving to dismiss a complaint for lack
of subject matter jurisdiction long
construction company files this motion
to dismiss asking the court to dismiss
Eastern state's complaint for lack of
subject matter jurisdiction Eastern
alleges that the court has
subject-matter jurisdiction over this
case pursuant to 28 United States Code
section 1332 which vests a federal court
with jurisdiction over state law claims
when there is diversity of citizenship
while the defendant admits that the
amount in controversy exceeds the
$75,000 statutory minimum the defendant
and the plaintiff are not citizens of
different states thus there is no
diversity of citizenship long and
Eastern the plaintiff and defendant are
both citizens of Virginia long is a
Delaware corporation however its
principal place of business is in
Virginia and Eastern is a Virginia
corporation with its principal place of
business in Virginia as well because
long and Eastern are both residents of
Virginia this court lacks subject matter
jurisdiction thus Long's motions to
dismiss should be granted this
introduction tells the court that long
wants a dismissal tells the court the
facts that support Long's motion namely
that long and Eastern are citizens of
the same state
tells the court what law long is relying
on without going into great detail about
the law since federal courts know the
requirements of section 1332 and reminds
the court again what long is asking the
court to do introductions are
extraordinarily helpful for judges and
their clerks and people should use them
in every motion the second category is
to draft a factually accurate narrative
with the very important exception of
motions to dismiss for failure to state
a claim statements of facts and motions
to dismiss are not that important under
the Federal Rules the court must assume
that the allegations in the complaint
are true thus in the motion to dismiss
one can still briefly outline the
factual contentions in the case but one
should not dispute that they are true
for purposes of a motion to dismiss what
one must do in the statement of fact is
to include facts that will be used in
the brief to support the motions to
dismiss many times these facts will have
nothing to do with the substance of the
complaint for example the necessary
supporting facts might be the clients
state of incorporation or the amount in
controversy if the issue is subject
matter jurisdiction or the clients state
of residency if the issue is personal
jurisdiction were that the client has
not been served with process if the
motion is based on lack of service of
process importantly for each fact
offered in the statement of facts one
must cite the complaint or some other
admissible evidence that supports that
position now we'll look at an example of
an effective statement of facts suppose
one represents a defendant corporation
and wants to file a motion to dismiss
the plaintiffs personal injury action
based on lack of service of process the
plaintiff attempted to perfect service
on the client by serving the
corporation's president's administrative
assistants but that person has legal
authority from the jurisdiction that
service on an administrative assistant
who is not authorized to accept service
is not sufficient so how might these
facts be presented here's an example
Dean filed this personal injury action
against Jackson management company on
July 15 2017 just one day before
the two-year statute of limitations
expired on July 28th 2017 Dean attempted
to perfect service on Jackson by
delivering a copy of the summons and
complaint to Elizabeth Ronald the
administrative assistant of Jackson's
president Ryan Winston and here at the
affidavit of Ronald's could be cited
that day
Dean's process server who did not
identify himself as such enter Jackson's
headquarters and asked Ronald if she
worked for Winston when Ronald told the
process server that she did work for
Winston he handed her the envelope and
walked out of Jackson's office in fact
Ronald was not even aware that the deans
process server was attempting service
until Ronald opened the package which
bore Winston's name saw the summons and
complaint Ronald is not an officer of
Jackson corporation and is not Jackson's
registered agent for service Ronald had
no authority to accept service of
process on behalf of Jackson and did not
represent to the process server that she
had such as already out of an abundance
of caution
Jackson filed an answer within 30 days
of the date that Jackson was purportedly
served this would be an example of a
statements of facts and would cite
appropriate Authority such as the
complaint or other affidavits for all of
the assertions of fact now this passage
contains very little information about
the underlying factual allegations in
fact the only information the reader
learns is that the suit is a personal
injury action however that's because the
allegations in the complaint are not
important for purposes of Jackson's
motion to dismiss the only facts that
matter are those that bear on the issue
of whether service of process on the
administrative assistant was valid
service so those are the only facts that
the writer outlines Jackson's decision
not to mention the underlying
allegations is also a strategic one
Jackson wants the court to focus on the
plaintiffs bad conduct in waiting until
the last minute to file the complaint
and then failing to properly perfect
service not the bad conduct that Jackson
has allegedly committed that injured the
plaintiff by declining to detail the
underlying facts Jackson seeks
to avoid giving the court a reason to
feel sorry for the plaintiff and allow
him another opportunity to perfect
service if on the other hand the motion
to dismiss is for failure to state a
claim upon which relief can be granted
then the underlying allegations are
critically important why because in
filing a motion to dismiss the filer
basically says for purposes of the
motion I'll concede that everything that
you say are true but even if they are
the plaintiff still can't state a claim
therefore an allegation of the facts and
an in-depth analysis of those facts
showing why they do not establish a
legitimate cause of action are very
important next let's look at the
standard that has to be met when filing
a motion to dismiss the standard for
granting a motion to dismiss is high one
must know what needs to be proved to
show that the client is entitled to a
dismissal in so doing one must present
the law honestly but should also state
the standard in a way that favors the
clients position here's an example of
how this can be accomplished for a
motion to dismiss for failure to state a
claim
note that the motion to dismiss should
cite authorities such as cases or
statutes whenever appropriate so here's
the example to survive a motion to
dismiss under Rule 12 B 6 of the Federal
Rules of Civil Procedure the complaint
must state a claim of relief that is
plausible on its face a motion to
dismiss should be granted when the
plaintiff can prove no set of facts in
support of the plaintiffs claims which
would entitle the plaintiff to relief
the Seventh Circuit Court of Appeals has
interpreted this standard to mean that
to survive a motion to dismiss for
failures data claim the plaintiffs
complaint must contain either direct or
inferential allegations respecting all
material elements necessary to sustain a
recovery under some viable legal theory
grant of a motion to dismiss pursuant to
rule 12 B 6 serves the very valuable
function of saving judicial and party
resources in cases where it simply would
not be productive to proceed
if every claim were allowed to proceed
to trial the cost generated thereby
would be enormous and there would be
little benefit in the way of increased
accuracy of the results when it's
obvious well before trial that the
defending parties entitled to judgment
there's no need to expend further
resources of the parties and the court
this is an example of a good defendant
friendly explanation of the general
standard instead of focusing on what the
defendant must prove to get the motion
granted the author dressed the standard
in terms of what the plaintiff must
prove to survive the motion making it
subtly appear like the plaintiff bears
the burden of proof the author uses the
following language to survive a motion
to dismiss the complaint must a motion
to dismiss should be granted when the
plaintiff etc and the plaintiffs
complaint must what does that paragraph
add to the explanation of the standard a
lot for the defendant the author uses
the second paragraph to emphasize the
importance of 12 B 6 motions and is
essentially saying to the court I'm
helping you out by filing this motion
I'm trying to preserve judicial
resources avoid wasting money and
prevent this fruitless case from
clogging up the court target good legal
writers start with a broad explanation
of the relevant legal principles which
is often known as the umbrella section
and work their way to more specific
explanations of the law one should use
this same method when drafting the
authority and analysis section of a
motion to dismiss and should focus on
the law that is favorable for this
section we're gonna focus on the
Virginia diversity of citizenship case
that we discussed a little bit earlier
how should the law be outlined in which
the individual begins with broad
principles and gravitates to more
specific ones here's an example federal
courts are courts of limited
jurisdiction and the burden of proving
jurisdiction rests with the party
asserting it when the plaintiff seeks to
litigate a state law claim in federal
court the plaintiff must prove that the
federal court has subject-matter
jurisdiction pursuant to 28 United
States Code section 1332
under that statute a federal court has
original subject matter jurisdiction
over litigation one where the amount in
controversy exceeds $75,000 excluding
interest and costs and to the parties
are citizens of different states and
then of course you would cite section
1332 a corporation is deemed to be a
resident of both the state in which it
is incorporated and the state in which
its principal place of business is
located
thus section 1332 C provides dual not
alternative citizenship to a corporation
that is incorporated in one state and
maintains its principal place of
business and another a corporation's
principal place of business is its nerve
center that is the place where a
corporation's officers and other
management direct control and coordinate
the Corporations activities the nerve
center is the location of the
Corporations headquarters so long as
that headquarters is the actual center
of Direction control and coordination in
determining a corporation's nerve center
courts will look to the location of the
corporate oversight and strategic
decision-making the principal place of
business analysis is performed on a
case-by-case basis for example in the
Central West Virginia case the Fourth
Circuit Court of Appeals considered
whether a defendant's principal place of
business was located in Michigan or West
Virginia the offices of the defendants
CEO CEO CFO and general counsel were in
Michigan while only one corporate
officer who was a vice president and
general manager maintained a West
Virginia office the michigan officers
were responsible for significant
oversight and strategic decision-making
but the day-to-day company management
and operations such as purchasing
materials selling products and
administering payroll occurred in West
Virginia the defendants corporate
filings in several states including West
Virginia and Michigan listed Michigan as
the company's principal place of
business the Fourth Circuit held that
the defendants principal place of
business for purposes of section 1332
was Michigan the court held under the
Hertz
that the defendants principal place of
business was Michigan because the
corporate policies were said in Michigan
high-level corporate decisions were made
in Michigan and corporate oversight
occurred in Michigan the court
acknowledged that the employees who made
day-to-day decisions were located in
West Virginia and that the company was
active in West Virginia business
community however the court held under
the Hertz analysis that the defendants
nerve center was in Michigan
and here we cite another case Kansas
City Life Insurance Company versus City
Corp for the proposition that the
company's principal place of business
was Missouri where the CEOs office was
located in Missouri and the Board of
Directors meetings were held there as
well in this example the author outlines
the broad subject matter jurisdiction
principles namely that federal courts
are courts of limited jurisdiction then
focuses on the elements of federal
subject matter jurisdiction analysis
namely the amount in controversy and
diversity of citizenship of the
plaintiff and defendant and explains how
courts determined citizenship of
corporations and then offers a case
illustration of how courts apply that
test finally we have to apply the law to
the facts in a convincing and credible
manner the legal arguments in a motion
to dismiss must be extremely persuasive
and supported by relevant facts if the
court has any doubts about one's
entitlement to dismissal those doubts
will be resolved in the plaintiffs favor
and the motion to dismiss will be denied
thus the authority and legal analysis
sections of the motion to dismiss are
very important
additionally the analysis must consists
of more than just a conclusory summary
of the facts or a blanket statement that
the statutes are cases cited support the
position the analysis should answer the
question why should the client prevail
in light of the facts and law some of
the questions that one should ask to
guide this analysis are why is a statute
or regulation applicable or inapplicable
how our favorable case is similar to our
case does a comparison between recent
cases and older cases suggest a trend
that's
ports our legal argument how are
unfavorable cases factually
distinguishable from our case was an
unfavorable case decided under a
different statute with different
language was an unfavorable case decided
under common law principles but a
statute now applies and are their policy
arguments that support the position or
disfavor the adversaries position in
addition while we should not be overly
repetitive we should err on the side of
over explaining rather than under
explaining here's an example of an
effective legal analysis of the Virginia
subject matter jurisdiction case in this
matter the requirements of section 1332
are not met and this Court has no
subject matter jurisdiction over this
case long admits that the amount in
controversy exceeds the $75,000
statutory minimum however long and
Eastern are not citizens of different
states and therefore there is no
diversity of citizenship between the
parties under subsection C one of
section 1332 long a corporation is a
citizen of both the states in which it
was incorporated and the state in which
its principal place of business is
located long was incorporated in
Delaware and thus is indisputably a
citizen of Delaware however it long is
also a citizen of Virginia because under
the hurts nerve center test Long's
principal place of business is in
Virginia as outlined above long
maintains a small office in Delaware
that serves as essential call center for
the company and Long's accounting
operations occur in Delaware eight of
Long's 300 employees work in the
Delaware office but not one of those
eight employees has any decision making
1/3 Long's headquarters is located in
Roanoke Virginia the office of Long's
owner and president the single person
who makes all corporate level decisions
and has sole control over the operation
of the company is located in Roanoke
Virginia as well and even the day-to-day
operations of the company occur in
Roanoke further Long's corporate filings
with the secretaries of state in both
Delaware and Virginia
list Long's Roanoke Virginia address as
its principal place of business there
can be little question that Roanoke
Virginia is the place where Long's owner
and president directs controls and
coordinates Long's activities evidence
that Long's principal place of
businesses in Virginia is even stronger
than the evidence presented in the
Central West Virginia case in the
Central West Virginia case the
defendants officers who were responsible
for company oversight and tricked
decision making were located in Michigan
but the day-to-day operations occurred
in West Virginia here Long's
headquarters and president the single
decision-making authority in the company
are both located in Virginia and Long's
corporate filings represent to all
interested parties that its principal
place of business is in Virginia and
unlike in central West Virginia case
where day-to-day operations and
decision-making occurred in different
states the vast majority of all of
Long's company's operations including
day-to-day operations occur in Virginia
under the hurts nerve center tests
Long's principal place of business is
located in Virginia and long therefore
is a resident of the state of Virginia
there is no question that central the
defendant in the case is a Virginia
resident because Central's state of
incorporation is in Virginia as outlined
above long is also a Virginia resident
because its principal place of business
is there thus because long and central
are both citizens of Virginia there is
no diversity of citizenship between them
and the requirements of section 1332 are
not met therefore this court lacks
subject matter jurisdiction over this
matter and Long's motion to dismiss
should be granted the author of this
section effectively analyzes the legal
issue in light of the facts and answers
the question why should long prevail in
light of the facts in law specifically
the author begins the analysis by
summarizing the relevant facts about
Long's corporate structure and the
location of its headquarters to reach
the conclusion that Long's principal
place of business is in Virginia under
the nerve center test the author then
can
hairs and contrasts the facts to those
in the Central West Virginia case
explaining how the facts are similar to
and even stronger than those present in
the essential West Virginia case
importantly the author concludes the
analysis by answering the initial
question is there subject matter
jurisdiction the author explains that
the court lacks subject matter
jurisdiction because long is a citizen
of Virginia because its principal place
of business per the Hertz nerve center
test is located there and because
Central the other party to the case is
also a citizen of Virginia because it's
incorporated there because the legal
analysis section is such an important
part of any brief or memo or motion one
must be sure that the legal analysis is
thorough and convincing practicing
applying these techniques including
correctly drafting facts standards law
and then applying the law to the facts
is the best way to improve one's writing
skills it will also help improve the
persuasiveness of the person's writing
and that person's likelihood of
succeeding on the merits will be
maximized
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