Is Filing a Motion to Dismiss a Waste of My Money?

For start-ups and a lot of foreign companies, U.S. litigations are usually being portrayed as "daunting," "costly," to intimidate these particularly vulnerable groups for early settlement. However, a meaningful compromise would not be able to ascertain without putting up a good fight in early litigation stage. Thus, today's topic is about whether it is worth of filing a motion to dismiss.

In response to the U.S. Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly, some litigants have suggested that motions to dismiss under Federal Rule of Civil Procedure 12 will be resurrected as an effective tool for defendants. In fact, motions to dismiss were never dead; they were routinely used and granted before Twombly was decided.

According to statistics, In the federal practice, almost 1800 motions to dismiss (Rule 12 b), judgment on the pleadings (Rule 12 c) were filed in the 7700 cases studied. Nearly 84% of these motions sought dismissal of or judgment on the case in its entirety, and another 12.5% sought dismissal of or judgment on some claims. Over 44% of these Rule 12 motions were granted in their entirety, and another 10% were granted in part. Less than 30% were denied.

We should put these numbers into perspective; the numbers were similarly high for motions for summary judgment brought under Rule 56. The study recorded nearly 2300 such motions in the 7700 cases, 70% of which sought full summary judgment. About 54% of all summary judgment motions in the study were granted in full or in part; in seven of the eight districts, at least half the motions were granted in full or in part.