All The Reasons NOT To File a Motion To Dismiss

What is a motion to dismiss?

If you are a defendant in a lawsuit, your attorney may tell you that the claims against you, which are made by the plaintiff and contained in a legal document called the complaint are baseless, and that a legal tactic called a motion to dismiss will be over quickly and inexpensively resolve the lawsuit in your favor. I’m sorry to say, that this is almost never the case, and the result is that you could incur significant additional legal fees by agreeing to this tactic.

When you submit a request to a court to decide an issue before trial, that request is called a motion. Motions can be made when a lawyer believes there is sufficient paperwork to prove all of part of a case.

However, there is a very high bar set against you when seeking a motion to dismiss a complaint. The law provides that the court is to resolve any issue that is not absolutely black and white in favor of the plaintiff and therefore you are fighting an uphill battle.

The rule for a motion to dismiss can be found at: CPLR § 3211(a) thru (e).

What is perhaps the bigger reason that a motion to dismiss is almost always a poor litigation strategy, is that the law permits to the plaintiff to amend his complaint.

The rules allowing the plaintiff to amend his complaint are:

CPLR § 3025(a) and

CPLR § 3211(f) which provides that no answer needs to be filed until after the motion is decided.

More often than not, if there really were deficiencies in the complaint that could have worked to your advantage, the motion to dismiss has done nothing more than to point out all the deficiencies, so that the complaint can be corrected, and the claims against you wind up stronger than before. And your motion, and the money you’ve spent and time you’ve wasted are not only all for nothing, but you’ve actually helped make the plaintiff’s case stronger.

So, a motion to dismiss is always great for your lawyer who is billing you for all this extra work, but almost always is not so great for you. If you are in a situation where a case should be disposed of quickly and early, there are far superior procedural methods to accomplish this than by a motion to dismiss.


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