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Opposing Motions to Dismiss

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Opposing Motions to Dismiss

Judges are granting more motions to dismiss—and getting past the starting gate is tougher than it was in past decades. Making matters worse, by the time you respond, the judge has already heard the defendant’s side of the story and may feel ready to dismiss your case. How can you make a comeback and ensure your case proceeds to discovery? Join professional brief writer Jonathan Hilton as he shares ten tips you can put into practice right away in opposing these common motions.

Transcript

Hello, everyone. Jonathan Hilton here. Welcome to brief writing for plaintiff's attorneys, opposing motions to dismiss. Today we're going to be talking about something that plaintiff's attorneys face increasingly now in nearly every case in federal court and in most state court cases as well. Other than perhaps a very routine car crash, you're going to be seeing these motions to dismiss. And we're going to talk about how to deal with those in your legal writing today. Quick introduction to my firm and what we do. I'm Jonathan Hilton. I'm the one there on the right. Jeffrey Parker is the one on the left. We're Hilton Parker LLC, and we help plaintiff's attorneys to write better and take their brief writing to the next level, particularly when facing tough and difficult legal challenges. Really those interesting legal issues. That's what we love to focus on and what we love to assist plaintiff's attorneys with. All right, let's think about something to kind of set the mood for the rest of the hour. This is a thought to get started when you're writing a response to a motion to dismiss. You need to keep in mind that the judge has already heard the defendant's side of the story and may already be inclined to dismiss your case. If you read a lot of motions to dismiss nowadays, the language in briefs is often getting sharper and sharper. There's going to be jabs at your plaintiff. There may be jabs at you. Even though judges probably are going to try not to be swayed by any of these things. We all know that. Well, often the more times you hear something, the more likely you are to believe it. Statistically, often that's true. So when you're writing that motion to dismiss opposition, you have to be thinking in terms of not just responding to legal points, but also making a comeback. You have to bring the court along with you on a narrative with your plaintiff, and you have to get the court inclined to want to rule in your favor on motions for the rest of the case. So this is going to guide everything else that we talk about today. So the first half of the lecture today, I'm going to spend on the craft of narrative. And how do you piece together a strong, compelling opposition to the motion to dismiss? In the last half of the lecture, I'm going to talk about more of the rules, technicalities and the tricks of the trade, if you will, that will help you rope in big pockets if you are trying to get defendants with deeper pockets into your case. And we'll help you understand some of the real technical points about responding to motions to dismiss. Do you amend do you just file an opposition brief? What do you do about statutes of limitation and so on? So when we talk about crafting the opposition, there's five things that I want you to keep in mind. I'm going to want you to keep in mind that you need to start by going back to basics. The judge has just been taken on a ride by the other side. They've probably put all kinds of law and facts, some of them true, some of them not in the court's mind. You have to bring the judge back to first principles and explain in a in a real, you know, first year law school kind of way. These are the basics of the case. And this is why your client deserves a day in court. And the way that you defeat a motion to dismiss, which is often based on very technical points, is that you create an alternate storyline. The defense has their narrative. They've put it out there. You don't want to just pick apart the defense motion. You want to have your own story of the case. Not quite as if you were presenting it to a jury. Of course, this is motions practice, but in some ways you need to be thinking about it in the same way. You have to create that narrative for your client so that the court understands how the law is going to apply in your case. This ties into the next point, which is you don't just want to pick apart the other side's legal points. You don't just want to post up into your brief, copied and pasted a lot of case law that you think is favorable to you without really showing from the ground up why your client states a claim. You want to look at the elements of your claim and you want to explain how you meet those. Based on what you know now and what you anticipate you're going to have at trial, what kind of case are you are you going to put on so that the court really sees and understands why your client deserves to get to that trial, to that day in court and deserves to go through the discovery process? Part of that, you can start planning at the very beginning of your complaint. When you are writing the complaint, you can think of good emotional facts to put in the complaint to help shape the narrative. We'll talk about that and how to do that. And then you just want to keep in mind, if you have a case where you can't create that compelling narrative, as long as there isn't authority directly on point, that's going to prevent a judge from ruling against you. Often the court is going to find a way to dismiss your case. And I'll go through an example of a time when that happened to my firm and one of our cases. Then when we move into the last part of the lecture, we'll get into the difference between notice pleading not just what it is, particularly if you've gone to law school recently, you may have no idea what I'm talking about when I say notice Pleading versus Twombly and Iqbal. But we'll get into that. And of course, if you've been practicing for a very long time, you may have in your mind the very old notice pleading standards. And I'll talk some about how those have evolved in light of the Twombly and Iqbal standards that we've seen out of the US Supreme Court and Federal court. We'll talk about the difference between Rule eight and Rule nine B, we'll get into that. So some of the heightened pleading standards and then, like I said, thinking about when you're writing your complaint and when you are moving into your motion to dismiss briefing, how do you find and advance a theory that will allow you to get to some of those defendants who may actually be holding the money bags? So we'll move into that as well. All right. What do I mean when I say start with first principles? Well, often I'm thinking about what would you say if you were teaching a taught class to a group of one else? Or if you were A1L law student and you were trying to write a decent exam answer for, you know, your nutty talk professor who is focused on. Just basic theories of liability and how did the common law evolve? That's what I'm talking about. And we'll get into a little bit of the technicalities of how do you actually do that. But what I tell people is keep your first year talk book handy. The cases that are in there are very emblematic and often, even if they're not from your state and most of the time they're not going to be, you may be able to find one of your state law cases that cites to one of those classic textbook tort cases. And you may also just be able to use it as an illustrative example for the court. So I'm going to give you an example of a time when I have used this idea of starting from very first principles in a brief. So in this case, we were representing a client who had taken Zantac and developed cancer. You may or may not know there's a lot of these Zantac cases out there claiming that ranitidine that was caused by it originated in that was found in these Zantac pills allegedly caused cancer. And so there's a lot of these cases out there. And what we wanted to argue in this case is that the brand name manufacturer GlaxoSmithKline could be on the hook for the generic version of the drug, even though they didn't produce it. Gsk didn't make this particular pill that our client took, but we wanted to find a way to hold them liable regardless. So what I did with that. Looked through Nevada state law because that's where we were and found the most basic rudimentary principle that I could, which is this responsibility for injuries caused by defective products is properly fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. Basically what that says is when you're looking at the evolution of the common law. As products liability has developed over time. There's a basic principle in there that the courts are looking to assign liability for injuries, not based on the very technical points of doctrines like privity and so on. They're looking to be practical and assign responsibility for injuries in a way that is going to help society. So that is often a very good starting point. If you have a defendant who, for instance, is asserting that it doesn't owe a duty to your client. Start with that first principle and build from that so that you're building your claim from the ground up. So in this case, the brief went on for a little while. It said, you know, following that principle laid out, the court assigns responsibility for injuries wherever. It reduces the hazards to life and health. So in that particular case, we were able to explain to the trial court that the only way that you can assign liability in a case like the Zantac case and have it actually have some impact on society is by holding the party that develops the drug and patents it liable. Because generics by federal law simply copy what the brand name does. So if you change what the brand name does, you're going to change what the generics do. And that in turn is going to help society. But if you try to hold the generic liable, they can't do anything because, well, they are just bound by federal law to copy the brand name. So that was successful in a state court in Nevada. And it actually went up on appeal to the Nevada Supreme Court, which at least in the interlocutory appeal stage, declined to overturn the trial court's decision. That was a unanimous decision and the other side moved for rehearing. That was recently denied six one. So if you start with those basic principles, you can craft something that is going to sound very reasonable, very sensible to the trial court, and you can bring them with you on your legal theory. Okay. I like to bring this point up. Have you cited learned hand lately? If you don't know or don't remember learned, Hand is one of the sort of founding fathers of modern tort law. He was a judge in the early 1900s on the Second Circuit, and he wrote these economic formulas. I don't want to get into those because maybe you learned them in law school, maybe you didn't. But most trial courts are busy and don't want to get into math. But the basic point is this Courts should impose a duty when the precaution that you want the defendants to take is small, but the safety payoff is big. And you may have an entire industry that has lagged behind. So, for instance, there's a very famous law school textbook case, The Hooper, which is about the safety technology in small boats. Should we require the industry to update their technology? Well, and you may have an entire industry that has lagged behind so the defendants can't just point the finger and say, well, we're doing what everybody else does. You can go back to those basics and say, Well, maybe the precaution that we want the defendants to take would have been small, but it would have saved the plaintiff here. It would have saved potential other people and other cases. So let's move into. Okay. Those are your first principles. Once you know what your theme is from a first principles perspective, you want to build the story of your opposition around those first principles. And why do you need a narrative? Let's just say the defendants are wrong or you have contradictory authority on the on the point that the defendants are making. Why not just keep it extremely short, you know, put in a bunch of cases, say, look, judge. You know, the defendants have made this really technical point and we want this court to not side with them. Well, here's what I think is interesting, right? The motion to dismiss machinery, if you will, the way it's designed is designed to allow courts to rule in defendants favor on narrow legal issues. Maybe it's the existence of a duty. Maybe it is something technical about one of the causes that one of the elements of the causes of action that you're trying to assert. Maybe it's some administrative thing, whether you've exhausted an administrative requirement. They're designed to be narrow. And if you play on that very narrow field, you're playing on the defendant's turf and you're making it easier for the court to decide with whatever authority the defendants have cited and dismiss your case. Taking a step back from that, if you are asking the court to pick between stories or basically entire universes of narratives rather than just between legal arguments, that's not something that the motion to dismiss machinery is designed to handle. That's something that jury trials are meant to resolve. So you want to be playing where you can in that universe and making the judge understand that this is something a jury is ultimately going to need to decide because the two sides are just in such different places. So how do you do that? How do you create that alternate storyline? I'm going to show you something from one of the my favorite briefs that I've ever seen. Um, this is a case that involved a drive by shooting at an Airbnb. Airbnb, if you don't know it, and you probably do at this point, but it's an online platform that connects people who want to rent out properties with people who want to stay short term. And if you look at what was actually alleged in this complaint, so the the plaintiff was going to an Airbnb, there was some sort of event there and then there was a drive by shooting at at or around that event. And the plaintiff in that case was tragically killed. So the the question, of course, is, well, how is Airbnb liable for that? And Airbnb, of course, filed a motion to dismiss that was based on, well, Airbnb doesn't owe any duty here on. Whatever happened was the work of whoever was renting out the house. Airbnb. It's connecting buyers and sellers. Or buyers and renters or. Or renters and. And those who are trying to rent their property. It's not participating in any of this conduct. Particularly not the criminal conduct. So how can you develop an alternate storyline to try to hold that company liable? So there was an allegation in the complaint that said on information and belief, Airbnb was in some sort of joint venture with the people who were renting out this apartment space. So that was the allegation in the complaint. It's a notice pleading state and we'll get into that. What does that look like in opposing the motion to dismiss? So the brief writer here starts with something uncontroversial, to take the court into a mind space where the court is going to be inclined to think that what the plaintiff is saying is reasonable and makes sense. So it starts with, well, if a hotel's business model were to encourage wild parties with booze, a jury would hold it liable if it failed to employ security guards. So setting the background stage with an analogy, something that isn't terribly controversial. Then moving into facts. Facts that aren't found in the complaint, but in a notice pleading state that doesn't really matter as long as you're able to illustrate the fact in some way. Until Airbnb implemented a permanent global party ban in 2022, it had just such a business model and you'll see some headlines cited here. So for instance, shootings and wild Airbnb parties renewed calls for crackdown on short term rentals. So this is painting the scene. Keep in mind, we're not just doing what a lot of plaintiffs lawyers reflexively do, and we're not just starting with how badly the plaintiff was injured. Sometimes that's just a tragic fact, the defendant admits. And you have to find a way to set the stage for the principle that you want to uphold. So the brief goes on for years by collaborating with these renters. Airbnb profited from putting illegal hotels, bars and nightclubs into residential neighborhoods, all the while shirking its common law obligation to provide security. So now that you see the narrative built. Then it's time to start moving into some of these conclusions that are going to push the court along to siding with the plaintiff that this led to violence can surprise no one. So the motion to dismiss should be denied. So. We're going to tie this all back on thinking about. The idea of showing the strength of your claim and not just trying to refute the other side's points. You want to try to do more of what we have just seen in that last set of excerpts. You want to refocus the court on why you have stated a claim. What are the elements? How did you plead them? And you want to bring that storyline back to your plaintiff and not just be playing ball in the other side's territory the entire time under technical legal points. So. This is doing this is going to really allow you to focus on your narrative, your narrative. And if you focus on the elements of your claim, what do courts actually require for your claim? This is going to allow you to call the defendants out anytime that they have set up some kind of requirement that goes beyond that. Defendants are always trying to impose little extra things. The plaintiff has to show that this was related to that or that was related to this. But if you focus the court on the actual elements, then it becomes easy and systematic for the court to rule in your favor. Plaintiff pled element one, plaintiff played element two and so on and so on. So. How do you from the outset plan to try to build emotional facts in in, into and get them into your motion to dismiss opposition. Well, you want to be as you're drafting the complaint and as you're drafting the opposition, thinking about why does your plaintiff deserve a day in court and why should the other side have to pay damages to your client? Really basic questions, but you don't want to lose sight of those focusing on legal technicalities. So this is an example from a brief that I absolutely love. It's just a a nice little example of how you can work in emotional fact into a motion to dismiss opposition based off of careful planning from your complaint. So in this case, the plaintiff was bringing a product defect claim and and the plaintiff had been operating a water jet that was designed to cut granite and. Essentially got, you know, his arm or body mangled in this thing. So in the complaint, whoever had drafted that complaint had been very clever and thought to put in there an allegation that said that the water that struck the plaintiff hit him with the force of a £200 man jumping from a 25 story building. And at the motion to dismiss stage, the court has to accept that as true. You're not required to bring in an expert to really go over the math. But. Putting it in. The complaint allows it to be cited as an allegation, and it's a very compelling image of how badly this product malfunctioned. Oh, God. What happens if you can't build this kind of a narrative? Well, the title that I've put up on the screen, Dumb cases die. That's a little bit harsh, particularly, you know, for somebody like me. I love to try to find ways of ways that plaintiffs can win cases no matter what the facts are. So I don't mean to be too harsh, but I wanted to leave you with something that you can keep in your mind and that you're not going to forget. And if you keep it in your mind, you know, dumb cases die when you're sitting down and you're trying to decide how can you write this opposition or this complaint or even whether to take a case on contingency in the first place, you want to keep something in mind? If you can't craft this kind of a narrative, if you can't bring the court along, if the court isn't precluded by case law from ruling in your favor, the court may just rule against you. And it really may do so for reasons that you don't anticipate, reasons that parties don't argue. The court might just find a way to dismiss the case. So this is an example of a time this happened to my firm. We were representing a woman named Miss Kaguya in what's called a Fair Debt Collection Practices Act case. One provision of the Fair Debt Collection Practices Act says that a debt collector may not send a letter. To a consumer, a debtor, if you will. If that letter has the name of the company on it and the name of the company gives away the fact that the letter is from a debt collector. In other words, if you're thinking back to when the Fair Debt Collection Practices Act was passed in the 1970s, were really thinking about prohibiting debt collectors from calling their company something like, Hey, deadbeat, pay up and putting that as their return address. That's really what Congress was likely thinking of at the time. And that's the kind of stuff that was happening. But in this particular case, you had a company, it was called United Collection Bureau Inc, and they did in this little glass window. That was see through. And you can see it right there on the face of the envelope. You can see the words collection bureau. Now, I don't know how bright your screen is. And, you know, this isn't the same thing as seeing the envelope in broad daylight, but. Uh, you can imagine. We filed this case. We get a motion to dismiss. It's. Difficult sometimes to craft that narrative. And let's see what the trial court did with it. Well, the trial court said essentially the Fair Debt Collection Practices Act. Exists for unsophisticated consumers. Okay. We're not. It's designed to protect the most vulnerable consumers. And applying that standard, the trial court said, well, unsophisticated consumers can't read upside down or backwards. Mm. So you have a statute that's designed to protect unsophisticated people. Unsophisticated people can't read backwards. Therefore, case dismissed. Case dismissed because some people can't read backwards. Okay, Well, if you stop and you think about it, that makes no sense. For one thing, the person who might see this envelope, you know, somebody else living in the house or the apartment, you know, they might not be the least the least sophisticated consumer. They might be very smart. Maybe they can read backward. Um, you can also think about it in terms of, well, just because it's designed to protect the least sophisticated consumer, that of course, doesn't mean that we should be using that lack of sophistication against them to dismiss their claims. It's meant to protect consumers. But I think the appellate court and luckily we did get this reversed by the appellate court, the appellate court, in a 2 to 1 decision said, well. Maybe it's printed upside down and backwards, but somebody's checking the mail. Could rotate the letter. They could just turn the letter around and then they would be able to read upside down. Thinking about this. Yeah. Yeah, that's pretty obvious. And. What's amazing to me, though, right? That was a 2 to 1 decision. The dissent in that case. Did You know what I think the trial court was probably thinking and just spelled it out a little more clearly. The dissent just said, well, even though this is what the law says, you know, this is an absurd and a in a bizarre result and we aren't going to construe the law to reach an absurd result. Um. Well, okay. Fair enough. All right. And there, you know, the dissenting judge is saying exactly what he thinks. But what does this mean for your cases? Well, if you're bringing a case and the court doesn't think that your case at some gut level makes sense. That's going to leave the judge in a position as long as there's no binding authority on point saying that the judge has to go along with you. The judge can just say, I use the canon of construction against absurd or bizarre results to find that you didn't state a claim. So that's just an example of why you absolutely need this narrative and you need to be able to explain to the court why it makes sense that you are stating a claim. Part two of this lecture. Let's get into the technical stuff. Notice pleading. What is it? So you have notice, pleading, and you have Twombly and Iqbal Twombly and Iqbal apply in federal courts, and they apply in some state courts that have adopted them. Notice pleading is the old pleading standard that used to be used in federal courts starting in about 1938, where the rules of civil procedure and was used more or less up until the early 20 tens. So not that long ago. What is the notice pleading standard? Well, the defendant must prove that there is no set of facts on which the plaintiff could win the case. And what does that mean? No set of facts because obviously you can always conjure up some sort of hypothetical, no set of facts. You know, you can always think of some fact. Well, if the defendant did what was in the complaint and did these other things, surely the defendant would be liable. Well. So no set of facts probably doesn't truly mean no set of facts. But it does mean something along the lines of you don't have to put everything in your complaint that you would need to win the case. So. Start by doing the research. Are you in a notice pleading state? You want to look for quotes like this? I'm from Ohio, so I've chosen my Supreme Court's ruling on this. Okay, until the highest court of your state adopts a new pleading standard or the local rules, the state rules that you're using are changed. Your state remains a notice pleading state. And that's true in a lot of states. A lot of states are still notice pleading because. Courts have not adopted Twombly and Iqbal across the country as fast as most people on the defense bar. And a lot of people even on plaintiff's side would have thought. So what's the big difference between Notice Pleading and Twombly and Iqbal? It all comes down to what the court has to accept as true and how much leeway you got to argue facts that are outside your complaint. Okay, so what is true on notice pleading. Um, there's a there's a quote from Justice Souter from his dissent in the Iqbal case. And I love this because this sums up notice pleading. The court is required to accept as true anything except like little green men. The plaintiff's recent trip to Pluto or experiences in time travel. Basically, it has to be absolutely insane before the court can look past it and reject it. But federal cases. The judge is going to look at the pleadings and is going to construe them looking through the lens of plausibility. So if the judge, based on judicial experience, you know, that's like a real term judicial experience, thinks your claims are implausible. Mm. Then you can get kicked out at the motion to dismiss phase. Okay, so what does that really mean? I think a good way to conceptualize it is if you're alleging a conspiracy, if you're alleging that some high ranking officials conspired or some CEOs, which, by the way, is exactly what the allegation was in Iqbal, that Ashcroft had conspired with some people to deprive the plaintiff of constitutional rights. Well, if you allege that there was a smoke filled back room and all these high ranking people were sitting around smoking cigars and coming up with ways to defraud your plaintiff, well, that might be implausible. Is it little green men? No, not little green men from Mars. But on the other hand, a lot of federal courts are going to dismiss those kinds of claims. So notice pleading. Well, let's dive down a little bit more into that, because there's there are different states that have different sets of case laws. The old view of notice pleading and this was popular, I mean, up until really the end of the 90s. This is how it worked. The plaintiff didn't even have to set out the facts for each element of the claim. Uh, you know that those were the good old days. There's a great case from the seventh Circuit by Judge Easterbrook. Very respected federal judge. And he said, Now complaints are not required to plead lord or match facts to every element of a legal theory. He said, you know, come on, that's ridiculous. We want a short, plain statement of the facts. The issue in Bennett, if you can actually believe this is something people used to argue about. The plaintiff had filed a 12 page complaint for racial discrimination, and the trial court had dismissed that complaint on the basis that 12 pages was too long for a federal complaint. Judge Easterbrook reversed, saying, well, 12 pages is is not a mortal sin. Clearly, this should have been six pages, should have just been something very simple form complaint. And if guess what? If the court thinks that it was implausible, the court should just set a tight case management timeline, get the discovery done quickly, and move on to summary judgment. But, you know, six pages long enough. Well, even in most state courts now, six pages is often not going to be enough for a complex case. You in most states, Ohio is one of these. Even if you use notice pleading, you need to have at least some fact for each element. Um, you don't want to just recite the elements. That's labels and conclusions. You need some fact, but the facts don't have to be pled with. Any kind of particularity you can, you know, just in most cases, you can just say very basically what you think the defendant did, and you don't really have to dive in to any detail on it. Okay. So how do you use notice pleading to your advantage? Well, good use of notice pleading. I want to just start out with a caveat. It doesn't mean, oh, you got to be lazy in drafting your opposition to the motion to dismiss. You don't you don't get to use it as an excuse for not having some idea of where your case is going because then the judge is not going to be sympathetic to you. Things that you're just fishing for evidence that you don't know what your case is about. And the court's going to find some way to try to dismiss you. But a good use of notice pleading means that you can set out in your opposition the story of how you intend to prove the case at trial, even if you don't have the evidence to cite for it yet. You talk about, well, the other side has to prove. There's no set of facts that could get in discovery that would help me win or that would allow me to win. So you can say, look, statistically, here's how these businesses operate. Statistically, this is how these kinds of scenarios play out. You can use newspapers, you can use articles. You could even talk about your past experience and say, well, I had a case that was very similar. We learned this kind of thing in discovery. And then plaintiff was able to succeed at trial. So you can do those kinds of things and you don't have to cite to the complaint in a notice pleading state for every single thing that you put in your brief, because you're talking about the set of facts that could allow you to win. But you do need to know how you could win the case. So here's an example from that Airbnb opposition that I talked about. The use of newspaper articles I think is very compelling here. So the the background section of facts section, notice these are not things that were in the complaint itself. These are things that are external to the complaint because we're talking about no set of facts. So the background Airbnb joins forces with local ghost hotel operators to exploit the underage teen party market. So what what does that mean? Well, the plaintiff here uses newspaper articles sites to $8 billion a year in yearly revenue from joining Airbnb, working with what they call ghost hotel operators. Those are ghost hotels. They're for profit enterprises. They're like traditional hotels, but they employ no front desk staff and no security guards making them appear deserted. And they are hotbeds of crime. So this is shifting that focus back to what the defendants allegedly did. It's refocusing the court on how the defendants could be liable. And it's citing two newspaper articles in order to show that there there could be a way for the plaintiff to prevail at trial. So let's let's move on in our remaining time. We've talked about how you don't have to have particularity under civil rule eight if you're in a notice pleading state. But most states are going to have a civil rule nine be just like the federal courts do. That applies to, well, two things fraud or mistake? Okay. Keep in mind. Um, you know, everybody thinks of fraud for Rule nine. Be A lot of people don't think of mistake if you're alleging something in a contractual dispute and you're claiming that there was a mutual mistake or that the parties at some point made some mistake of fact, you may need to plead that with particularity as well. Okay. But in a lot of states, a condition of mind may be alleged generally. So things like knowledge, intent, malice, well, that makes sense, right? Because you as a plaintiff can't know. What the defendant's intent was. So you just allege it generally. Okay, so where does that leave civil conspiracy? Civil conspiracy is the one of the ways that plaintiffs lawyers typically rope in defendants with big pockets. You allege that the defendant who has the money conspired with the person who actually carried out the carried out physically, whatever the tort was. So is a civil conspiracy as that knowledge? Is that intent? Is it a condition of mind or is it fraud of some sort? Well. In most states. If you dig in and you do the case law on Rule nine B, you're probably going to find that if there's a conspiracy to commit fraud, well, that rule nine B pleading standard is going to carry over into the civil conspiracy aspect. Again, what is particularity? Well, you need to know who, what, when, where and why. I would just I would even put in, you know, five paragraphs on that. I just, you know, allege each, Um, and, and you've got to put in not only who, what, when, where and why. Were these statements made that allegedly defrauded your plaintiff. But you also if you're using civil conspiracy, you're probably going to have to say, you know, who conspired? What did they conspire to do? When did they conspire to do it? Like what time of day? Where was it? That smoke filled lounge in the back or, you know, or on an airplane or whatever. But you're going to have to have something to back it up if you don't want to run into your rule 11 problems, you know, you end up getting sanctioned if you completely make this stuff up. You have to have some reasonable, good faith basis for alleging who, what, when, where and why this conspiracy formed. Um, I'd say do the research in your home state, though, because. If you're alleging civil conspiracy, why not try to pick a tort that doesn't have several civil rule nine, be applying to it like maybe a conspiracy to commit conversion or some easier tort. Now you're going to find states where no matter what, if you're alleging conspiracy, it's covered by rule nine B, But most states out there, I'd venture to say the law is pretty unclear. People are always alleging a conspiracy to commit fraud. So there's probably a case law on that. But people don't think to allege a conspiracy on something easier. So look for those cases, see if that is something that you are able to do. This kind of moves into my next point, though, which is when you're choosing what to emphasize in your opposition to a motion to dismiss or you are. Drafting a complaint. How do you hook in the parties that have the money? There are a lot of common theories out there. People think of these ones respondeat superior. Well, I mean, that's kind of obvious that the employee does something You try to hook in the company. People try to stretch that one, though. And depending on your state case law, maybe you can stretch it. Agency. Well, you have a parent agency which is know well, you know, the there was some outward manifestation that looked like the person who committed the tort was from the company. You're trying to hold liable a parent agency theories. I mean, sometimes these work sometimes these don't ratification the company approved of it afterwards can also be kind of hard you often don't have. Strong facts to go off of at the outset for ratification. Strict liability. Yeah, well, you know, a lot of a lot of ultra hazardous materials, you may be able to get that working. Negligent hiring, again, that's kind of a hit or miss. It's very hard to prove that one at trial unless you have some very good evidence that the defendant actually knew that the person they were hiring had some sort of criminal tendency. Um, you know, and in my home state of Ohio, we have all kinds of exceptions to negligent hiring, pleading standards, courts. I get the feeling courts don't really like a lot of negligent hiring claims. And so, you know, you may come into courts imposing additional pleading standards on you there. Um, civil conspiracy we've just talked about. Those are common theories. They are theories that often work If you have a basis to allege them, you should. But there's two theories that I want to highlight today that I think a lot of plaintiff's attorneys just forget about or miss. And if you can plead these, well, it is going to really level up your pleadings and get you past a lot of motions to dismiss. So joint venture, we're going to do a lot on that today. And then assumption of a duty. So I've given you a restatement section three 4324 A That section says that a party becomes liable if it has undertaken a duty to perform or if it has undertaken to perform a duty that somebody else owes. But then it performs that duty negligently. So Well, What do I mean by that? I mean that the defendant has, you know, even if the defendant is claiming that it doesn't owe a duty, you can come back and really, hopefully through some good illustrations of whatever you've found just in your Googling of the defendant, your research, news articles, whatever you if you find that they have. Carried out that role in the past if they have acted. The correct way, according to your allegations in the past. You may be able to imply that through custom or history, that company has assumed a duty that somebody else owed. So landlord tenant cases are probably a good example of that. Maybe the tenant is the only person who by law is liable for something that happens on the inside of their apartment or maybe for something like, you know, an animal that they keep their dog bite case or so on. Well, if the landlord through custom or history has. Assisted in the past in controlling the dog. You can argue that it's implied that they have undertaken this duty even though they didn't owe it in the first place. And then of course, you go on to say they, uh, they did it negligently. So if you're doing a dog bite case, you want to rope in the landlord. Look to facts like did the landlord put up a beware of dog sign or warn other people entering the premises about the dog? Um, you know, did the landowner ever. Call animal control, anything like that when something happened in the past. Or did they talk to the tenant and try to keep the tenant under some sort of agreement? Maybe if you look to the landlord tenant agreement, you can find that the landlord is reserving the right to deny allowing those animals, you know, a vicious dog, for instance, to be on the property. Well, then you may have a hook to try to get the landlord on because they've assumed some degree of control, some degree of responsibility, and they've undertaken a duty owed by someone else. And I think a lot of people forget that theory and don't plead it. What is a joint venture? It's basically like a limited scope partnership. It may require almost nothing to plead. I've given a case citation up there. The Korpan case. And it looked at a complaint that was pled under old notice pleading standards. And it said, well, the plaintiff can satisfy the pleading a joint venture under notice, pleading just by saying that the defendants acted individually and through their entities at all times. Um. Plus, the plaintiff in Discovery had mentioned that as a theory that they were going to pursue at trial. That might be good enough for notice pleading, so it might take very little to plead. What do I think? Pleading a joint venture. You know, like what? What would I recommend? Pleading. Of course, your state, you know, you should look at your state's requirements, see if they have any case law. But I think you should set out the nature of the alleged joint venture. What is it that these parties were doing together and how were they associated with one another? Were they just known in the community to be working on this project together? Did they go into did they jointly sign some contracts together? Did they work together on, you know, a logo or or trademarking or whatever? I would allege that the defendants combined their efforts property and money or skill or knowledge to the venture. Depending on your state's requirements, you could get more or less detailed with that. And then I would say that either the defendants agreed to share profits or at least they were paid from the same revenue stream. Some states do plead joint venture. Say that you have to actually have the defendants sharing profits. So basically, the total amount of money made after all of their expenses and that's what has to be shared in some percentage fashion. Other states are going to say no. As long as the customers paid into this pool of money and both partners were paid from it, that's good enough. Same revenue stream. So no, if your state has any case law going into that. Okay, so that's how you bleed a joint venture. Let's talk briefly in our time remaining about statutes of limitation. I'm sure that I'm going to do a full scale lecture on statutes of limitation eventually here, but. For now. If you have a statute of limitations problem, do you omit it from your complaint entirely or do you put the date in along with some sort of tolling theory? Well, I think it depends if you have to plead. The who, what, when, where, why? Because you have a rule nine B theory or because maybe you're attaching some document that's going to raise the statute of limitations issue. Or maybe you reference a document and the other side can incorporate it by reference. In those cases, you probably got to put the date in on. And then you just want to plead a set of facts that either is going to support a tolling theory to delay or push back that statute of limitations like discovery rule or. You want to try to plead some alternate universe of facts about, you know, when you actually think the cause of action accrued. So maybe some key document was signed on a certain day. And the other side is going to argue that triggers the statute of limitations clock. But you should be sure to put in your version and say, no, it wasn't when we signed the document, it was when the defendants committed this, that or the other breach of their duty that triggered that statute of limitations and got it running. So handle them carefully. The one thing that you never want to do is you plead a date. You get a motion to dismiss from the other side, and then you just file an amended complaint that omits all of the dates. You're going to lose all your credibility, and the court is going to find some way to dismiss you so that that theory almost never works. Brings us to our next and final point. To amend or not to amend. Okay. In many states there are what are called matter, of course, amendments. This is true in federal court as well. A party may amend its pleading once as a matter of course, after receiving either an answer or a motion to dismiss. Okay. So. That's typically done instead of submitting a an opposition brief. Well. And is that a is it a good idea or is it not a good idea? Um, typically the way that I look at it is I'm going to ask myself when I get that motion to dismiss, is the other side just pointing out a technical pleading failure? Are they saying, oh, well, you had to plead this additional element and you forgot? Or is there a motion. To dismiss cutting at something more at the root of the case? Are they actually claiming that my client, under no set of circumstances, could ever win the case? And if it's the first one, if it's a technical pleading failure, oh, yeah, I forgot to attach the contract or whatever it is that your state law requires. Okay. Makes sense. Matter, of course. Amendments. That's what they're for. You can go ahead and do it. But if it gets more to the merits of the case, here are my thoughts. There are some downsides to amending. I've already talked about losing credibility, so be careful what you amend to say. But other downsides the defendant will have had more time. Their counsel will have had more time to think about the case. They're going to be kicking themselves after a few days, like, Oh, I wish I'd had time to include that theory, or, Oh, I didn't think of this other theory. And when they come back and they file their next motion to dismiss. To dismiss your amended complaint. Well, they're going to have a more thoughtful motion, so it's going to be higher quality. The other thing is maybe the judge read their initial motion and now the judge has read their motion twice, but has only heard from you one time. Well, the more often the judge hears their side of the story, the more time the other side is spending figuratively with the judge. The more likely the defense is going to be at convincing the judge to go with them. So, you know, and it also adds time and expense to the case. The other thing is, from a practical standpoint, the longer you are in motion to dismiss practice, we all kind of know this, the more the defendant can get away with resisting discovery, saying, Oh, well, you know, this is not really relevant, or you guys haven't really stated a claim. Yeah. Just from a practical standpoint, if let's say you only have a year to get to trial in your timeline, well, how much of that do you want to spend with the defendant resisting discovery based on the fact that some motion is pending? So here's what I like when you can consider using notice pleading in your opposition. Instead, invoke the known set of facts standard. If you didn't put in all of the good stuff in your complaint that you could have use notice pleading if you're in a notice pleading state as a way to. Explain to the court that you are allowed to put in. The possible set of facts that would allow you to win at trial and explain what you intend to prove through discovery and at trial. All right. That wraps up the hour, folks. We're right at over 60 minutes. If you have questions, please feel free to reach out to me. My contact information is up there [email protected]. Thank you very much for attending today. And I hope you beat all the motions to dismiss that you face.

Presenter(s)

JHJ
Jonathan Hilton, JD
Partner
Hilton Parker LLC

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