After a civil defendant is served with the complaint, he can either file an answer or file a motion to dismiss. The motion to dismiss is useful because if it is granted, then the case is over for the dismissed defendants at a very early stage. Also, it forces the plaintiff to come forward with her evidence to oppose the motion. Sometimes there is no evidence at all. Why let the case drag on for months or years if there is no case against your client?
It should be noted that some judges may be reluctant to grant a motion to dismiss, and often state that it is “premature”. That is sometimes shorthand for the judge’s fear of making a mistake and having his decision overturned on appeal.
However, on the right facts and law, a motion to dismiss can be an effective weapon.
In a recent case, my corporate client was sued along with the two individual owners of that corporation. Those individuals had not personally done any business with the plaintiff. Often, a plaintiff will try to sue the individuals improperly for shock value and to intimidate and greenmail the defendants. In my case, the plaintiff claimed that the individual defendants had committed a fraud in telling the plaintiff that the corporate defendant promised not to breach their contract. That is obviously an absurd argument and ripe for a motion to dismiss.
The trial judge did grant my motion and dismiss the complaint as to the two individual defendants.
Since we had served the plaintiff’s attorney at the beginning with a demand to withdraw the complaint under the frivolous claim statute and rule, and he failed to do so, we will be applying to the court to direct the plaintiff and the plaintiff’s attorney to pay all attorneys fees and costs incurred to date by my clients.
That’s how it’s done.
