Motions Directed to the Complaint

AuthorHeath Szymczak
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.
Motions Directed to
the Complaint
Heath Szymczak
Nelson_BizTorts_20140514_15-35 Confirmation Pass.indd 69 8/12/14 10:25 AM
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).
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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