Motions Directed to the Complaint

• Author: Heath Szymczak
• Pages: 69-92

You just received a call from a brand new client. His company has been

served with a complaint. He is in the process of having it scanned and will

email it to you shortly. The complaint contains various business tort claims

accusing your client of a myriad of nefarious acts, all of which have sup-

posedly caused irreparable harm to the plaintiff.1 He says that the plaintiff

is coming after him personally by trying to “pierce the corporate veil” of

his company. He is anxious and has turned to you for guidance. He wants

to know what this means to him and his company, and what will happen

next. The conicts check has cleared. The sound of the clock ticks loudly

and your mind begins to race. Now what?

There are many issues to consider. How long has your client had the

complaint? Was service proper? What about jurisdiction and venue? Are

the correct parties named? What are the claims? Should you answer or

make a motion? You recall something about waiving certain defenses if

you are not careful, but which ones? The allegations against your client are

scandalous. Fueled by your client’s sense of outrage, you feel compelled to

charge to his defense and jump right in to the details of the merits. Resist

1. The analysis to be considered when emergency relief is also sought against your cli-

ent is discussed in Chapter 4.

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CHAPTER 5

Motions Directed to

the Complaint

Heath Szymczak

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this temptation. Step back and slow down. There are many threshold con-

siderations to look at before you get bogged down in the minutiae of the

merits—issues that may be simpler to address and could give your client a

quicker, more cost-effective strategic advantage.

Keep in mind that your opponent has been methodically planning and

investigating his case for weeks, even months. He has carefully selected

his forum, interviewed his witnesses, framed his facts, and researched and

honed his legal theories. You, however, do not have the luxury of time—

you must move fast. In this chapter we consider the most common types of

motions that may be directed at a complaint in a business torts case.2 You

can achieve various strategic and substantive objectives depending upon the

motion you use. In fact, the selection of the right type of motion is akin to

selecting a golf club: each has a unique function and must be sized up and

selected depending on the specic circumstances presented. This chapter

is intended to assist you in picking out the right motion for the job (or in

making the decision to pass on a motion altogether) so that you can get

the best possible result for your client (or at least stay out of the rough).

I. MOTION TO DISMISS: OVERVIEW

A motion to dismiss can be a devastating tactical weapon, which, if not

handled carefully, may backre on its wielder.3 This chapter gives you a

practical overview of the considerations involved in formulating and bring-

ing your motion to dismiss, along with some other related motions. The

emphasis is on the Federal Rules of Civil Procedure since many state civil

practice rules generally follow federal practice (with some deviations that

may vary signicantly from state to state). If you are in state court, be sure

to consult the corresponding state practice rules as there may be additional

bases for dismissal not listed in the Federal Rules.

2. The answer, afrmative defenses, and counterclaims are discussed in Chapter 6.

3. See Heath J. Szymczak, Motions to Dismiss in New York: A Primer on a Procedural

Gatekeeper, New York State Bar Association’s Business Torts and Employment Litigation Blog,

http:// nysbar .com /blogs /nybusinesslitigation /2011 /07 /motions _to _dismiss _in _new _york .html

(July 29, 2011).

B  T: A P  G  L 

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