Monday, July 25, 2011

Should You Include Reasons in Your Motion to Dismiss?

Judge Altonaga tackles a hot-button issue that is all the rage among us civil litigators -- when you prepare a motion to dismiss, should you include reasons why the action should be dismissed as to your client?

My own feeling is as follows:

I'm an artist.  You wouldn't ask John Coltrane to explain one of his mind-blowing sax solos, nor would you ask Chagall to explain one of his paintings or James Joyce to explain Finnegans Wake.

Likewise, my 12(b)(6) motion stands on its own, inviting -- nay, challenging -- the reader to find his or her own meaning in my random collection of important-sounding legal words, and arrive at the correct conclusion in spite of (and most definitely not because of) my brillant if maddeningly obscure wordcraft.

Isn't that the very definition of transcendent art?

Alas, Judge A has a different view:
As a general observation, the Court notes that, in their Individual Motion, Barillas and Chaveco address the 12 counts of the Complaint in a cursory fashion. They argue, without citation to any authority or analysis, that the Complaint fails to allege with specificity what it is they did to be liable in all 12 counts. In their Reply [ECF No. 36], Defendants attempt to make concrete arguments relating to some of the counts, for instance by pointing out that the Complaint does not allege what actions they took to make them personally liable under the FDUTPA or for unfair competition. Nonetheless, they cite to no law and do not provide any legal argument addressing the sufficiency of the non-Lanham Act claims. As the court noted in Rux v. Republic of Sudan, “a moving paper makes a specific request for relief of some sort . . . [a] memorandum of law in support, on the other hand, supplies the reasons why the moving party is entitled to that relief.” No. Civ.A. 2:04CV428, 2005 WL 2086202, at * 14 (E.D. Va. Aug. 26, 2005) (emphasis in original). In the absence of any meaningful legal analysis regarding the sufficiency of the remaining claims stated against these Defendants, the Individual Motion fails to persuade.
 Ok, perhaps she has a point, but how bourgeois is that?


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