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Starting The Story: Motion Practice And Its Pitfalls

Frank Hammond Aug. 14, 2023

We have seen that litigation is best practiced as the art of telling stories and explored how that process begins. In this article, lets take a look at the motion practice and its pitfalls.


Rule 12 of the Federal Rules of Civil Procedure offers several motions that can be made as a defendant’s first appearance. Three are of special importance, though, as they are the most likely to be made in typical commercial and government litigation. The first and most fundamental is a motion that the case should be dismissed because the court does not have jurisdiction to decide on the subject matter of the case. If, for example, the case does not allege a federal claim and federal jurisdiction does not otherwise exist, a motion to dismiss for lack of subject matter jurisdiction is available. When a good argument exists against subject matter jurisdiction, a motion to dismiss should always be made. Courts are very sensitive to whether they have jurisdiction, and are likely to dismiss a case when any serious question of subject matter jurisdiction exists.

A second possible motion is that the court does not have personal jurisdiction over the defendant. This motion becomes important when the defendant is from another state and has no direct contacts with the state in which the action is brought. In such an event, the Constitution would forbid the court from hearing the case. In order to use this defense reference must be made to the state’s “long arm” statute to see whether the state has exerted jurisdiction over the defendant. Nowadays most long arm statutes extend to the maximum jurisdiction allowed by the Constitution, which is very broad. Motions based on lack of personal jurisdiction are therefore rare, but still are used in some cases.

Failure To State A Claim

The type of motion I want to discuss in some detail is the motion to dismiss for failure to state a claim. Often you will hear lawyers refer to this as a 12(b)(6) motion. This refers to Federal Rule of Civil Procedure 12(b)(6). States have counterparts to the federal rule, so the motion can become an issue in every civil case. This motion argues that the plaintiff has not laid out facts–told a story–sufficient to justify the form of legal relief asked for in the complaint. Essentially it is an argument that the court should not waste its time listening to plaintiff’s story because nothing about it could lead to any form of relief.

Winning a 12(b)6 motion in a way that ends the case is difficult for two reasons. First, under the Federal Rules of Civil procedure it is not difficult to plead a claim that will survive the motion. Two relatively recent US Supreme Court cases have made it more difficult to state facts that will justify a claim. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Under these cases facts must be stated that are plausible, not just possible or likely. If, however, the plaintiff has a good story to tell, it should be possible for it to meet these standards. If it cannot meet these standards, it should not be wasting its time in court. The important point for the layman to take from this is that courts and litigants are constantly arguing over the requirements to state a claim. Under new federal law it may be easier to get a case dismissed, but a well thought out plaintiff’s case should be able to make the cut.

The second reason it is difficult to win a dispositive 12(b)(6) motion is that the rules of civil procedure generally make it very easy to amend the complaint. If the court grants a motion to dismiss, it usually offers the plaintiff the opportunity to amend the complaint to overcome the flaw that resulted in the motion being granted. Usually the plaintiff will take this opportunity unless it is impossible to amend. But lawyers being lawyers they usually can think of ways around the defect in the complaint. Then the defendant is left with the question whether to file another motion. It can go on this way for awhile.

So, is it worth it to file a motion to dismiss at the outset of the case? Often it will be. In some cases, the plaintiff simply will not be able to tell a story that justifies relief. The motion to dismiss is definitely justified in those cases. Another reason for filing the motions is it is the first time the defendant gets to start telling its story and why the plaintiff’s story is weak. The purpose is to begin educating the judge on the defendant’s response. The other reason for filing is to tell the judge that plaintiff’s case, even if it survives motion practice, is not worth much litigation, and this can set up motions restricting the amount of discovery that is required of the defendant.

Motions to dismiss can be expensive. The client should require careful analysis from the lawyers in any particular case whether the motions are worth what they are going to cost. The client should request a budget from the lawyers what the motions will cost, and a statement of expected and desired results. As with all parts of litigation, a client should know what it is getting itself into and force its lawyers to do careful thinking before jumping into a procedure.

Come back next week as we finish up the look into stories with a look at answers! With more than three decades of legal experience in Oregon, we have a deep understanding of how regulations can intersect with land use issues and development projects. For a consultation with our Portland office, call or email us directly. Make sure to follow us on Linkedin and message us there if you have any questions.