Drafting A Motion to Dismiss

                                                                                                      Drafting A Motion to Dismiss        

            What factors should an individual 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 succeeding on the merits?

This article will answer those questions, provide writing tips to ensure that a motion to dismiss is well-written and persuasive, and offer an example of a motion to dismiss.

            A.        Deciding When to File a Motion to Dismiss

A motion to dismiss is a powerful weapon in a defendant’s arsenal. It protects clients against non-meritorious lawsuits, promotes judicial economy, and facilitates the speedy resolution of frivolous cases.  In federal court, the motion to dismiss is governed by Rule 12(b) of the Federal Rules of Civil Procedure, which provides specific grounds upon which an individual may move to dismiss a complaint. Under federal law, and in most jurisdictions, an individual may move to dismiss a complaint for the following reasons:

●     Lack of subject matter jurisdiction;

●     Lack of personal jurisdiction;

●     Improper venue;

●     Improper service; and

●     Failure to state a claim upon which relief may be granted.

A defendant may 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.  An individual may also move to dismiss the entire complaint or only specific causes of action. Of course, if a defendant is only asking the Court to dismiss certain claims, those claims must be specified.

Ultimately, a 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, 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.

B.        Drafting a Well-Written and Persuasive Motion to Dismiss          

After deciding to file a motion to dismiss, drafting a motion to dismiss, a defendant should adhere to the following suggestions and guidelines to write the most effective and persuasive motion possible:

·         Write a short and clear introduction;

·         Draft a factually accurate narrative;

·         Know the standard that must be met and craft an explanation of the standard;

·         Use the most persuasive components of the relevant law; and

·         Apply the law to the facts in a convincing and credible manner

Write a short and clear introduction

            An introduction does not need to be longwinded, but it should provide some general facts and analysis and let the court know that the motion seeks dismissal of the plaintiff’s complaint. In the introduction, an individual can choose to discuss the applicable legal principles. Since a defendant will provide cites later in the motion, it is not necessary to provide them in the introduction.

Courts deal with motions to dismiss frequently, so an individual 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 is an example introduction where the defendant is moving to dismiss the complaint for lack of subject matter jurisdiction:

Long Construction Company files this motion to dismiss, asking the Court to dismiss Eastern States Construction Company’s complaint for lack of subject matter jurisdiction. Eastern alleges that the Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1332, which vests a federal court with jurisdiction over state-law claims when there is diversity of citizenship. While Long admits that the amount in controversy exceeds the $75,000 statutory minimum, Long and Eastern are not citizens of different states; thus, there is no diversity of citizenship. Long and Eastern 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. Because Long and Eastern are both residents of Virginia, this Court lacks subject matter jurisdiction. Thus, Long’s motion 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 without going into great detail about the law, since federal courts know the requirements of § 1332, and reminds the court again what Long is asking the court to do.  Introductions are extraordinarily helpful for judges and their clerks and individuals should use them in every motion.

Draft a factually accurate narrative

With the very important exception of motions to dismiss for failure to state a claim, Statements of Fact in motions to dismiss are not very important. Under the Federal Rules, the court must assume the allegations in the complaint are true.  Thus, in the motion to dismiss, an individual can still briefly outline the factual contentions in the case but he cannot dispute that they are true for purposes of the motion to dismiss. 

What an individual must do in the Statement of Facts is include facts that will be used in the brief to support the motion 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 client’s state of incorporation or the amount in controversy if the federal court’s subject matter jurisdiction is being challenged, the client’s state of residency if lack of personal jurisdiction is the basis for the motion, or the “non-fact” that the client has not been served with process in the action if lack of service of process is the basis for the motion.  Importantly, for each fact offered in the Statement of Facts, an individual must cite the complaint or some other admissible evidence that supports the position.

Below is an example of an effective Statement of Facts.  Suppose an individual represents a defendant-corporation and wants to file a motion to dismiss the plaintiff’s personal injury action on the basis of lack of service of process.  The plaintiff attempted to perfect service on the client by serving the corporation president’s administrative assistant, but the individual has legal authority from the jurisdiction that service on an administrative assistant who is not authorized to accept service is not sufficient. How might these facts be presented?

Dean filed this personal injury action against Jackson Management Company, Inc. on February 15, 2013, just one day before the two-year statute of limitations expired. See Personal Injury Complaint.

On February 28, 2013, 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. Affidavit of Elizabeth Ronald (“Ronald Aff.”) ¶ 4. That day, Dean’s process server, who did not identify himself as such, entered Jackson’s headquarters and asked Ronald if she worked for Winston. Id. at ¶ 6.   When Ronald told the process server that she did work for Winston, he handed her the envelope and walked out of Jackson’s office. Id. at ¶ 7.    In fact, Ronald was not even aware that Dean’s process server was attempting service until Ronald opened the package, which bore Winston’s name, and saw the summons and complaint. Id. at ¶ 8.

Ronald is not an officer of Jackson and is not Jackson’s registered agent for service. Id. at ¶ 10; Affidavit of Ryan Winston (“Winston Aff.”) ¶ 5. 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 authority. Ronald Aff. at ¶ 11; Winston Aff. at ¶ 6. 

Out of an abundance of caution, Jackson filed an answer within 30 days of the date Jackson was purportedly served. See Answer of Defendant Jackson Management Company.   

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 is 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 on the administrative assistant was valid service, so those are the only facts the writer outlines.  And Jackson’s decision not to mention the underlying allegations also is a strategic one.  Jackson wants the court to focus on the Dean’s “bad” conduct in waiting until the last minute to file the complaint then failing to properly perfect service, not the “bad” conduct Jackson allegedly committed that injured Dean.  By declining to detail the underlying facts, Jackson seeks to avoid giving the court a reason to feel sorry for Dean and allow him another opportunity to perfect service. 

If the motion to dismiss is one for failure to state a claim, however, the underlying allegations are critically important.  Why?  In filing a motion to dismiss, the filer basically says: “For purposes of the motion, I’ll concede that the plaintiff’s allegations are true. But even if they are, the plaintiff still can’t state a claim.” 

Know the standard that must be met and craft an explanation of the standard

The standard for granting a motion to dismiss is high. An individual must know what needs to be proved to show that the client is entitled to dismissal. In so doing, the individual must present the law honestly, but should also state the standard in a way that favors the client’s position. Below is an example of how that can be accomplished for a motion to dismiss for failure to state a claim.

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the complaint must “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A motion to dismiss should be granted when the plaintiff “can prove no set of facts in support of [the plaintiff’s] claims which would entitle [the plaintiff] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Seventh Circuit Court of Appeals, has interpreted this standard to mean that, to survive a motion to dismiss for failure to state a claim, the plaintiff’s complaint “must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101 (7th Cir. 1984) (quoting Sutliff, Inc. v. Donovan Cos., 727 F.2d 648, 654 (7th Cir. 1984)) (emphasis in original).

A grant of dismissal 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.” Worthington v. Subaru-Isuzu Auto., Inc., 868 F. Supp. 1067, 1068 (N.D. Ind. 1994). If every claim were allowed to proceed to trial, “the costs generated thereby would be enormous and there would be little benefit in the way of increased accuracy in the results.” Gomez v. Illinois State Board of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). When it is “obvious well before trial that the defending party is entitled to judgment…there is no need to expend further the resources of the parties and the court.” Id. 

            This is a good, defendant-friendly explanation of the general standard as interpreted by the Seventh Circuit. Instead of focusing on what the defendant must prove to get the motion granted, the author drafts the standard in terms of what the plaintiff must have done to survive the motion, making it appear as if 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…”

●     “The plaintiff’s 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 docket.”  

Use the most persuasive components of the relevant law

            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 a more specific explanation of the law. An individual should use this same method when drafting the Authority and Analysis section of the motion to dismiss, and should focus on law that is favorable.  

For this section and the next section, the focus is on the Virginia diversity of citizenship case that was the subject of the introduction above.  How should the law be outlined, in which the individual begins with broad principles and gravitates to more specific ones? Below is an effective example:  

Federal courts are courts of limited jurisdiction, and the burden of proving jurisdiction rests with the party asserting it. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). When a plaintiff seeks to litigate a state law claim in a federal court, the plaintiff must prove the federal court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332.  Under that statute, a federal court has original subject matter jurisdiction over litigation (1) where the amount in controversy exceeds $75,000, excluding interest and costs; and (2) the parties are citizens of different states. 28 U.S.C. § 1332(a).

A corporation is deemed to be a resident of both the state in which it is incorporated and the state where its principal place of business is located. 28 U.S.C. § 1332(c)(1). Thus, 28 U.S.C. § 1332(c) provides “dual, not alternative, citizenship” to a corporation that is incorporated in one state and maintains its principal place of business in another. Johnson v. Advance America, 549 F.3d 932, 935 (4th Cir. 2008).

A corporation’s principal place of business is its “nerve center;” that is, the place “where a corporation's officers direct, control, and coordinate the corporation's activities.” Hertz Corp. v. Friend, 559 U.S. 77, 92 (2010).  The nerve center is the location of the corporation’s headquarters, so long as that headquarters “is the actual center of direction, control, and coordination.” Id. In determining a corporation’s nerve center, courts will look to the location of corporate oversight and strategic decision-making. Central West Virginia Energy Co., Inc. v. Mountain State Carbon, LLC, 636 F.3d 101, 105 (2011). The principal place of business analysis is performed on a case-by-case basis. Long v. Silver, 248 F.3d 309, 315 (4th Cir. 2001). 

For example, in Central West Virginia, 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 defendant’s CEO, COO, 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. Id. at 105. 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. Id. The defendant’s corporate filings in several states, including West Virginia and Michigan, listed Michigan as the company’s principal place of business. Id.

The Fourth Circuit held that the defendant’s principal place of business for purposes of the Section 1332 jurisdictional analysis was Michigan. Id. at 102. The Court held that under the Hertz test, the defendant’s principal place of business was Michigan because corporate policies were set in Michigan, high-level corporate decisions were made in Michigan, and corporate oversight occurred in Michigan. Id.at 103. The court acknowledged that employees who made day-to-day decisions were located in West Virginia, and that the company was “active in the West Virginia business community;” however, the court held that under the Hertz analysis, the defendant’s “nerve center” was in Michigan. Id. at 102; see also Kansas City Life Ins. Co. v. Citicorp. Acceptance Co., Inc., 731 F. Supp. 106, 107 (1989) (company’s principal place of business was Missouri where CEO’s office was located in Missouri and board of directors meetings were held there).

            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, explains how courts determine citizenship of corporations, and then offers a case illustration of how the courts apply that test.

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 an individual’s entitlement to dismissal, those doubts will be resolved in the plaintiff’s favor and the motion will be denied. Thus, the Authority and Legal Analysis section of the motion to dismiss is very important.  Additionally, the analysis must consist of more than a conclusory summary of the facts or a blanket statement that the statute or cases offered, or both, apply and 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 an individual should ask to guide this analysis are:

●     Why is a statute/regulation/ordinance applicable or inapplicable?

●     How are favorable cases factually similar?

●     Does a comparison between recent cases and older cases suggest a trend that supports the legal argument?

●     How are unfavorable cases factually distinguishable?

●     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?

●     Are there policy arguments that support the position or disfavor the adversary’s position?

In addition, while an individual should not be overly repetitive, he should err on the side of over-explaining rather than under-explaining. Below is 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)(1) of Section 1332, Long, a corporation, it is a citizen of both the state 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, Long is also a citizen of Virginia because, under the Hertz 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 a central “call center” for the company, and Long’s accounting operations occur in Delaware. Eight of Long’s three hundred employees work from the Delaware office, but not one of those eight employees has any decision-making authority.  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 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 “direct[s], control[s], and coordinate[s] [Long’s] activities.” Hertz, 559 U.S. at 92.   

Evidence that Long’s principal place of business is in Virginia is even stronger than the evidence presented in Central West Virginia. In Central West Virginia, the defendant’s officers, who were responsible for company oversight and strategic 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 persons that its principal place of business is in Virginia. And, unlike in Central West Virginia, where day-to-day operations and decision-making occurred in different states, the vast majority of all of Long’s company operations, including the day-to-day operations, occur in Virginia. Under the Hertz nerve-center test, Long’s principal place of business is located in Virginia and Long, therefore, is a resident of this state.  

There is no question that Central is a Virginia resident because Central’s state of incorporation is Virginia. And, as outlined above, Long is also a Virginia resident because its principal place of business is located here. 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. This Court, therefore, 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 answering the question: Why should Long prevail in light of the facts and 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 in is Virginia under the nerve center test. The author then compares and contrasts the facts to those in Central West Virginia, explaining how the facts are similar to—and even stronger than—those present in the Central 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, and long is a citizen of Virginia because its principal place of business, per the Hertz nerve center test, is located in Virginia.

Because the legal analysis is such an important part of any brief, an individual must be sure that the legal analysis is thorough and convincing.

Conclusion

After reading this article, try to separately draft each section of a motion to dismiss, and in so doing, practice applying the techniques discussed above. With continued practice, every individual’s writing skills will improve, the persuasiveness of the motion will be enhanced, and the likelihood of succeeding on the merits will be maximized.

Footnotes