Answers and Motions to Dismiss
Earlier this week, I talked about pleading requirements, focusing on drafting and filing a civil complaint. But what about the answer or other response to a complaint?
The same ethical considerations apply (under Rule 11). But, you must also think through every response to every allegation, as well as your client's affirmative defenses.
Under Federal Rule of Civil Procedure 8(b), you should think about:
🤔 Will the client admit or deny the allegation? In full or partially?
🤔 If denying the allegations, how can the client otherwise fairly respond to the claim?
🤔 Is a general denial appropriate, or should the client admit some allegations (including the jurisdictional statements)?
🤔 Does the client have enough knowledge or information to admit or deny the allegation?
🤔 What affirmative defenses should the client raise (or risk waiving)?
🤔 Are there grounds to move to dismiss the complaint all together (or partially)?
I am not one to race to file a motion to dismiss. Why?
👉 Most attorneys can craft a complaint in a way that survives such a motion.
👉 A lot of courts hesitate to cut the cord on a complaint in the beginning (and most will give a plaintiff a chance to re-plead).
👉 A motion can create a roadmap for the plaintiff to simply file an amended complaint (mooting the original complaint and the motion to dismiss).
But, sometimes a motion to dismiss creates leverage.
⚖️ It can poke holes in the plaintiff's case.
⚖️ It can educate the judge and opposing counsel on key issues and fact questions.
⚖️ It can bring plaintiff to the negotiation table.
⚖️ It can buy time to further dig into the facts and substantively answer.
Federal Rule of Civil Procedure 12 governs these considerations and is a rule every federal litigator should be deeply familiar with (and your state's counterpart).
I recently started re-reading the federal rules. They remind me why I loved civil procedure, speak to my rule-following nature, and refresh my love for litigation. (Nerdy to the core, without shame!)
❤️🔥✌️