I was in Court this morning for a motion and as those of us who are in Court regularly know you can get a real education watching Judges and Attorney's argue Motions. You can learn about the issues of law involved in their Motions and you can get a feel for the particular Judge in terms of how they deal with various Motions etc.
This morning a strikingly good looking, young, female Attorney with a very thick accent and European name took to the counsel table to argue a Motion to Dismiss. In sitting and watching her get creamed by the very patient Judge it was clear that she was clueless. The Lawyer that sent her should have known better than to send this rookie into the shark tank. I thought, though, that this would present a good opportunity to talk for a minute about Motions to Dismiss.
A Motion to Dismiss is made when the Defendant believes that the evidence presented viewed in a light most favorable to the Plaintiff is not sufficient to state a cause of action. So, if the case is about fraud and the facts alleged in the complaint do not make out a prima facie case for fraud the defense can make a Motion to Dismiss saying as much.
Judge's are loath to grant Motions to Dismiss especially before any discovery has taken place. I have seen dozens of Motions denied outright because the Judge ruled that absent the discovery process, where information and evidence to back up a Plaintiff's claim is to be revealed, the Motion must be denied because the legitimacy of the claim can not be weighed. Invariably, in these pre-discovery Motions to Dismiss the Attorney for the defendant will stand there and say adamantly that there is no case, that the complaint is all conjecture and lies and nothing of the sort took place. These inexperienced advocates, like the one I saw this morning, don't realize that this argument plays right into the plaintiff's hands and leads directly to a denial of the Motion.
The reason is simple. If you say that the allegations are spurious you have actually agreed that there are factual inconsistencies to be looked at. If their are factual inconsistencies then you have triable issues of fact. If you have triable issues of fact then the Motion to Dismiss must be denied. It is only after discovery, where each party shows his case, that a Defendant can honestly say that looking at the facts that are undisputed and giving the benefit of the doubt to the Plaintiff on the facts that are disputed that there is no cause of action.
Let's look at an example. P sues D for breach of contract. D makes a Motion to Dismiss and says that D has not breached the contract. D's motion to dismiss must be denied because there clearly is an issue of fact between the parties as to whether D has breached the contract.
CPLR 3211(a) gives a laundry list of instances where even if there are factual inconsistencies a Motion to Dismiss can prevail. Such scenarios are the Plaintiff has no standing, the Court lacks Subject Matter Jurisdiction, Defendant is immune to liability, etc. These are all legal arguments and as such can form the proper basis for such a dismissal. So, if P sues D for breach of contract and D makes a Motion to Dismiss and says that P lacks standing to sue because P was not a party to the contract then the motion should be granted. Presumably D would show the contract being sued upon and P would be absent as a party to that contract.
As a rule of thumb, I wait until after discovery to make a Motion a Dismiss. This affords me the opportunity to ask for a bill of particulars, send out interrogatories and conduct EBTs. It is through the discovery process that I can gain an understanding of a Plaintiff's action and determine whether a Motion to Dismiss is appropriate and my chances of prevailing on the Motion. Doing the Motion pre-discovery is almost always a waste of my time, the clients money and leads to my not being able to deliver a result that the client expects, however unreasonably those expectations are. Why would I want to create those expectations when I know that prevailing on the Motion is an unrealistic expectation? I create those expectations only after I become certain that they are realistic.
To this morning's inexperienced rookie I strongly recommend that you advise your clients that just because we all agree that the facts in the complaint are incorrect doesn't mean that we can offhandedly dismiss the action. Obviously there is a dispute of facts otherwise we would not be in Court in the first place. The Court is there to ultimately determine who is right and who is wrong. Every lawsuit is a he said - she said scenario. The argument of liar liar pants on fire is not sufficient to support a dismissal. Moreover, you are not likely to curry favor with your adversaries and with judges if your response to every lawsuit is a motion to dismiss and your clients are not going to be happy with your inability to get the case dismissed despite the expectations that you have created (even if those expectations were created unwittingly). It is waste of your time and the clients money. Make the motion when you can get it through that it is after discovery.
Lastly, to the Attorney who supervised this morning's rookie on this motion and sent her to court on her own, it is very poor form to send such an unprepared Attorney to court. She had no idea that her motion was not appropriate and clearly thought that she could just say that her client didn't do what he is accused of doing and get the case dismissed. Very poor form.
Feel free to contact me with any questions regarding this blog and any other legal questions you may have. I can be reached via e-mail jgoldstein@jgoldsteinlaw.com.
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