As they said at Bunker Hill, "Don't fire until
you see the whites of their eyes!"
Last week, I wrote about early motions to dismiss
employment lawsuits under Rule 12(b)(6) and questioned whether they were always
the best strategy for the employer. Most of last
week's post simply described the differences between a motion to dismiss, a
motion for summary judgment, and a trial, as background for the benefit of our
readers who are not lawyers.
As noted in a comment by Philip Miles of Lawffice Space (great blog, by the
way, and well worth a visit), there is no question that a judicious motion to
dismiss an employment lawsuit may be a good idea. If it works, of
course, it is by far the least expensive option because it allows you to end
the lawsuit at the earliest possible point. (Big "if," unfortunately,
but we can dream, can't we?)
I'd give a motion to
dismiss serious consideration in these circumstances:
*As Philip points out, even
if you can't get the entire lawsuit thrown out, you can narrow the case down
to the "real" issues by getting the "trash" claims
dismissed. Plaintiffs often throw the kitchen sink at the defendant, and a
"surgical" motion to dismiss will allow everyone to focus on the part
of the lawsuit that is serious.
*Sometimes it will be crystal
clear from the allegations of the complaint that the claim is baloney
("I was fired because I'm a woman. I got caught stealing, but males who
didn't steal were not terminated") or is outside the statute of
limitations ("Twenty years ago, the company fired me because of my
race"). Why don't we get lawsuits like this more often?
*Sometimes it's a good
strategy for pragmatic reasons -- maybe your case has some problems (for
example, hostile witnesses, lack of documentation, or poor handling of the
situation that led to the lawsuit), and it's worth trying an early motion to
dismiss to avoid all that.
*Or maybe you just want
the plaintiff's lawyer to know that your company isn't an easy mark for
lawsuits and that she'll have to work for her money. You need to be careful
about this motive, though -- you may be opening yourself up to sanctions if you
don't have a strong legal ground for the motion.
In short, I'm not 100% opposed to a motion to dismiss,
and I have been known to file them occasionally myself. That having been said,
I think defense lawyers frequently overuse them, and I'd like to give you five
reasons why an early motion to dismiss is not always in your best interests as
Reason No. 1 - You may "make bad
law." A real-life example will illustrate what I mean. My
state of North Carolina, like many other states, recognizes a claim for
"public policy" wrongful discharge but takes a fairly limited view of
what a protected "public policy" is. Among other reasons, you can't
fire an employee for refusing to commit perjury, or for a discriminatory/retaliatory
reason, or for filing a workers' compensation claim, or a truck driver for
refusing to falsify his driving logs.
In a real lawsuit decided last fall, a landscape
architect claimed that his ex-employer fired him because he made complaints
about the employer's lack of compliance with state laws requiring that projects
be certified by a real landscape architect. The architect/plaintiff claimed
that his ex-employer's refusal to comply created public safety issues, as well
as cost overruns and delays on multiple projects, and he gave
specifics. The employer filed a motion to dismiss on the ground that North
Carolina didn't recognize a "public policy" discharge claim on
Well, guess what? It
does now. A federal district court found that our state courts would
indeed recognize such a claim. (Link is to the magistrate's recommendation, but
the judge adopted
the recommendation.) Of course, I have no idea what evidence the employer would
have been able to present in its own behalf because a motion to dismiss is
filed before the development of evidence. Maybe this motion to dismiss was the
best in a set of bad options. But there is also no question that we now have a
new cause of action for wrongful discharge that we didn't used to have . . .
all because of this motion to dismiss.
Reason No. 2 - Your motion may "coach"
the plaintiff about how to say it better next time. Let's
say the plaintiff, who is African-American, alleges, "The company
discriminated against me because of my color and national origin in violation
of Title VII of the Civil Rights Act of 1964." Let's say there is no
factual allegation that her "color" played any role in her
termination, and because she's American, she doesn't have a national origin
claim. Should you file a motion to dismiss? I wouldn't, because your motion
will teach her (or her attorney) that she needs to use the buzzword
"race" instead of "color" or "national origin" in
Reason No. 3 - Even if your motion is
granted, the judge will probably give the plaintiff "leave to amend."
but true. As I said last week, if you wait and win on a motion for summary
judgment, the case is over subject only to the plaintiff's right of appeal. But
if you win on a motion to dismiss, chances are very good that the judge will
simply let the plaintiff rewrite his complaint and file it again. (Also, your
motion will have taught him how to make it "stick" this time. See
Reason No. 2.)
Reason No. 4 - An overly aggressive motion to
dismiss will tick off the judge. You certainly don't want the
judge to be mad at you, and in my experience, judges can't stand a
bully. They especially don't like to see big law firms hassling small
practitioners, or -- heaven forbid -- plaintiffs who are representing
themselves. If you have a really well-founded motion to dismiss, go for it, but
if it's borderline and the other side is a "small lawyer" or pro
se plaintiff, I'd back off. Instead, be nice, and wait for summary
Reason No. 5 - It's often an exercise in
futility and a waste of money. (See all of the above.) PS
- Judges don't like wasting time on unnecessary motions any more than they like
Here are some specific instances in
which I would not recommend filing an early motion to dismiss an
*Where the plaintiff did a poor job articulating
her allegations, but everyone knows what she meant and she has a valid
*Where the plaintiff is pro se.
Period. (OK, maybe if the lawsuit is totally incoherent, but
otherwise . . .) Dude, be nice. Let him have his day in court.
*Where you have a "home run" case,
but you need a little bit of evidence to get wood on the ball. If
you need evidence, that's summary judgment, not a motion to dismiss.
*Where you can get one or two claims
dismissed, but many more claims will have to remain in the lawsuit.
This is a matter of economics -- if the valid claims significantly outnumber
the "trash" claims, it's probably going to be easier and cheaper for
the client to dispose of everything on summary judgment.
*Where you only "probably" have a
statute of limitations defense. For example, the federal
anti-discrimination laws require that you file suit no later than 90 days after
receipt of the EEOC's dismissal of the charge. Let's say the lawsuit is filed
on day 93 after the date of dismissal. Don't waste your time with a motion to
dismiss the federal claims on grounds of untimeliness - the plaintiff will
simply respond with the claim that she didn't receive the notice until day 95,
and you won't be able to disprove it. The time runs from date of receipt,
not date of issuance. (See also Reason No. 2, above, about educating
Visit the Employment and
Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and
employment law firm Constangy, Brooks & Smith, LLP.
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