Motions to Dismiss

During the course of litigation, you may have an opportunity to file a motion to dismiss.  You may also be forced to respond to such a motion from an opposing party.  

What is a motion to dismiss?

Preliminary objections and Rule 12-b motions ask the court to assume that everything in a pleading is true and that the party filing the pleading, nevertheless, has no legal basis for a claim.  Preliminary objections and a 12-b motions are very similar.  Preliminary objections are filed in Pennsylvania courts, whereas, “12b” motions are a feature of federal court procedure.   The term “Motion to Dismiss” is an informal way of describing either preliminary objections or a “12b” motion.

For example, if a plaintiff sued a defendant for telling plaintiff that he did not like the color of her shirt; the defendant would likely succeed on a preliminary objection or a “12b” motion.  Even if the court were to believe everything the plaintiff said—that defendant did not like the color of plaintiff’s shirt—there is no law that the defendant violated and plaintiff cannot recover.

Similarly, preliminary objections or a “12b” motion can be used to attack technical deficiencies in a pleading.   For example, if a plaintiff sues the defendant in an inappropriate venue, the defendant can challenge that venue using such a motion.

When do you file a motion to dismiss?

Preliminary objections or “12b” motions must be filed before answering a pleading.  In Pennsylvania courts, this means the preliminary objections must be filed within thirty days of service of pleading.  In federal court, a “12b” motion must be filed within 21 days of a pleading.  Objections that are not filed in time are waived.

Why would you file a motion to dismiss?

There are a number of reasons to file preliminary objections or “12b” motions.  Parties often file preliminary objections or “12b” motion to challenge technical deficiencies in a pleading, for example, venue or failure to attach exhibits.

Preliminary objections and “12b” motions can also be used to force an opposing party to clarify the basis of its claim.   Attorneys sometimes, whether as a tactical device or because of incompetence, inject or allow ambiguity and vagueness in their pleadings.  An opposing party may not wish to answer such a pleading as it may require them to disclose more information than they would otherwise or because it allows the filing party latitude to change or modify their claims later in the litigation.  

Preliminary objections and “12b” motions are used to dismiss frivolous claims.  Such motions can allow a party to avoid the need to answer frivolous allegations or conduct discovery. 

Preliminary objections and “12b” motions can be used to challenge novel legal theories.  It is not uncommon that a plaintiff seeks to recover from a defendant using a legal theory that has not been approved by an appellate court.  Preliminary objections and “12b” motions challenge the legal adequacy of such novel theories early in the litigation, thereby allowing the court to either approve a legal theory or reject it and allow the disappointed party to take an appeal. 

There are also dishonest reasons for filing a motion to dismiss.  Some attorneys and firms have a reputation for filing preliminary objections or “12b” motions as a tactical device aimed at delaying a proceeding, increasing their own billable hours and forcing their opponents to incur attorney’s fees to respond.  This practice is both unethical and a violation of the rules but it happens with some frequency, particularly in Pennsylvania courts. 

What happens if we win or lose a motion to dismiss?

Since preliminary objections and “12b” motions test the sufficiency of a pleading, a court is generally required to give a party the opportunity to correct these pleadings.  Thus, if preliminary objections are filed against you and you do not prevail, the court will generally allow an opportunity to amend the pleading.  A party can file an additional motion to dismiss to amended pleadings.

There may be instances where a party cannot “correct” their pleading.  For example, if the plaintiff is advancing a novel theory of law there is no way to add additional facts to a complaint that would validate that theory.  In such instance, the court’s order sustaining preliminary objections or granting a “12b” motion has the effect of dismissing one or more of a party’s claims.  If the order disposes of all claims in the litigation, the disappointed party is put out of court and has a right to appeal. 

If a court overrules preliminary objections or denies a “12b” motion, the party that filed it is required to answer to the pleading they objected to.  For example, if a party files a motion to dismiss to a complaint and the motion is denied, the party will be required to answer the complaint.