You should call an experienced Massachusetts litigation attorney immediately to discuss how best to defend against the claims.
You intend to defend vigorously against the plaintiff’s case. Filing a motion to dismiss may be appropriate. If the court allows a motion to dismiss, it may mean that the defendant wins the case. Alternatively, if the court allows the motion in part, it may mean that the defendant wins on some, but not all, of the claims that the plaintiff is asserting.
Filing a motion to dismiss may not be the best strategy for defending against the case, however. Although the prospect of winning a case quickly is appealing, in reality, the court will most likely deny the motion. In many cases, a defendant may save time and money by skipping a motion to dismiss, and by simply filing an answer to the complaint.
It is easy for a plaintiff’s complaint to survive a motion to dismiss.
“To survive a motion to dismiss, the facts alleged and the reasonable inferences drawn therefrom must ‘plausibly suggest . . . an entitlement to relief.’ Flagg v. Alimed, Inc., 466 Mass. 23, 26-27 (2013), quoting Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).” Coghlin Elec. Contrs., Inc. v. Gilbane Bldg. Co., 472 Mass. 549, 554 (2015).
“While a complaint attacked by a motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions. Factual allegations must be enough to raise a right to relief above the speculative level based on the assumption that all the allegations in the complaint are true (even if doubtful in fact). What is required at the pleading stage are factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief, in order to ‘reflect the threshold requirement of Fed. R. Civ. P. 8 (a) (2) that the ‘plain statement’ possess enough heft to ‘show that the pleader is entitled to relief.’” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-1966 (2007) (internal alterations omitted).
So, why might a defendant file a motion to dismiss that the court will probably deny?
Let me start by saying that if there is no basis for filing the motion, you should not file it. Whether you agree with it or not, the complaint may allege the facts in a straightforward manner, and the plaintiff’s cause of action may be established in the law. The complaint may not be defective procedurally in any way. You just happen to deny the facts that the plaintiff is alleging against you. In such a case, you would probably be better off filing an answer. You may lose ground in the court’s eyes by filing a motion that has absolutely no chance of success. But most cases are not that simple.
A defendant may have a solid basis for filing a motion to dismiss. Pursuant to Mass. R. Civ. P. 12 (b), “the following defenses may at the option of the pleader be made by motion:
(1) Lack of jurisdiction over the subject matter;
(2) Lack of jurisdiction over the person;
(3) Improper venue;
(4) Insufficiency of process;
(5) Insufficiency of service of process;
(6) Failure to state a claim upon which relief can be granted.
(7) Failure to join a party under Rule 19;
(8) Misnomer of a party;
(9) Pendency of a prior action in a court of the Commonwealth;
Most likely, a defendant will move to dismiss under Mass. R. Civ. P. 12 (b) (6), for failure to state a claim upon which relief can be granted. The defendant is arguing essentially that even if the court accepts as true every allegation in the complaint, the plaintiff is still not entitled to relief.
Lack of subject matter jurisdiction may provide another basis for moving to dismiss, pursuant to Mass. R. Civ. P. 12 (b) (1). “Subject matter jurisdiction is ‘jurisdiction over the nature of the case and the type of relief sought,’ Black’s Law Dictionary 870 (8th ed. 2004), which among the various trial courts and administrative agencies ‘is both conferred and limited by statute.’ Edgar v. Edgar, 403 Mass. 616, 619 (1988).” Middleborough v. Housing Appeals Comm., 449 Mass. 514, 520 (2007).
For example, while the Superior Court can hear many types of cases, it cannot hear every type of case. The subject matter jurisdiction of the Superior Court is conferred by G. L. c. 212. “The court shall have original jurisdiction of all civil actions, except those of which other courts have exclusive original jurisdiction.” G. L. c. 212, § 4. For example, the Superior Court cannot hear matters that are within the exclusive original jurisdiction of the Land Court, such as complaints for the registration of land (see G. L. c. 185, § 1 (a)); or complaints affecting title to registered land (see G. L. c. 185, § 1 (a1/2)); or proceedings for foreclosure of and for redemption of tax titles (see G. L. c. 185, § 1 (b)). Additionally, the Superior Court cannot hear actions for divorce, or actions concerning the execution and validity of health care proxies, as those matters are within the exclusive original jurisdiction of the Probate Court. See G. L. c. 215, § 3.
A defendant may also argue on a motion to dismiss that the plaintiff lacks standing to sue, or perhaps that a statute of limitations has run, or on some procedural basis.
Even if there is a good ground to file a motion to dismiss, it is reasonable to expect that the court will deny the motion. In any event, preparing the motion gives a defendant a good opportunity to develop his theories for why he should win the case, and an ability to argue those theories early in the case. It also signals to the plaintiff that the defense has the resolve to counter a weak claim, and may actually facilitate an early resolution of the dispute.
Procedural considerations in light of the recent amendments to Superior Court Rule 9C.
Recent amendments to Superior Court Rule 9C, now require counsel for each of the parties to confer in advance of serving any motion under Mass. R. Civ. P. 12, and make a good faith effort to narrow areas of disagreement to the fullest extent. See Superior Court Rule 9C (a). “When conferring about any motion under Mass. R. Civ. P. 12, counsel for each of the parties shall make a good faith effort to narrow areas of disagreement that may be resolved through amendment of the pleading, curative action in respect to defective service, or other means related to the subject of the motion to dismiss.” Superior Court Rule 9C (b).
Essentially, the defendant’s lawyer now has to call the plaintiff’s lawyer before serving a motion to dismiss. This new rule could promote judicial economy by reducing the number of motions to dismiss that get filed overall.
Robert Nislick is a Massachusetts litigation lawyer. Contact him today to discuss your business, personal, or real estate dispute.