by Wilton H. Strickland

When presented with a complaint against a client, many attorneys reflexively think ahead to a possible trial — they sketch out the relevant issues and witnesses, launch into verdict research to calculate possible damages, or hunker down to pursue discovery. My approach always has been a little different; I never take a complaint as a given, but rather set to finding legal flaws that could justify dismissal in whole or in part.

I can count on one hand the complaints I’ve reviewed during the past fifteen years that had absolutely no grounds for dismissal appearing on their face. Spotting these grounds and asserting them in a motion to dismiss is a worthwhile exercise for a number of reasons. It fulfills the attorney’s duty to be a zealous advocate on behalf of the client. It creates more time to formulate and file the answer (after which there might still be grounds for a motion for judgment on the pleadings, a type of relief I’ve discussed previously). It can reduce the number of claims against the client and thereby limit damages exposure. It can lead to an amended complaint that states the allegations more precisely and thereby tightens the focus of discovery. It can strengthen the bargaining posture for settlement. It can lay a foundation for appeal if the motion is wrongly denied. And it might just result in victory with a court ruling or a voluntary dismissal, either of which saves the client a tremendous amount of time, money, and stress.

Below is a list of complaint defects I frequently run into, which is by no means exhaustive. Keeping such defects in mind helps not only defendants who want to dispose of a complaint, but also plaintiffs who want to make their complaint ironclad.

Lack Of Personal Jurisdiction

Jurisdictional allegations should appear at or near the beginning of the complaint to establish right away that the court has power to grant relief. Personal jurisdiction (also known as “in personam” jurisdiction) is one of these allegations — the plaintiff must explain why the court may exercise authority over the defendant, who possibly resides in another state or country and thereby can seek dismissal on the basis of being outside the court’s authority.

Most states have a “long-arm” statute explaining when a court may assert jurisdiction over a defendant who resides somewhere else. For example, if the defendant has regular contact with the state or has offices or property there, the court likely has “general jurisdiction” over the defendant for any type of complaint. On the other hand, if the defendant has only limited or infrequent contacts with the state, the court may still have “specific jurisdiction” over the defendant if the complaint’s allegations are linked to those contacts. In the event that the long-arm statute does not grant jurisdiction, the defendant can move to dismiss, which often requires filing an affidavit to prove that the defendant indeed lacks sufficient contact with the state.

Even if the state’s long-arm statute grants jurisdiction, the defendant often can still argue that his or her contact with the state is so minimal that it would violate the U.S. Constitution for the court to exercise authority. Some states avoid this difficulty by drafting their long-arm statutes to reach as far as the U.S. Constitution allows. Either way, it’s a good idea to examine whether the complaint establishes a basis for jurisdiction over the defendant.

Lack Of Subject Matter Jurisdiction

Regardless of whether the court may exercise jurisdiction over the defendant’s person, the complaint must also specify that the court has authority to adjudicate the types of claims at issue and to grant the requested relief. For example, if a complaint seeks damages of $5,000 but is filed in a court with a threshold damages requirement of $15,000, the court lacks subject matter jurisdiction and should dismiss the complaint.

Courts take subject matter jurisdiction very seriously because it implicates the court’s very power to act. This is especially true in federal courts, which all have limited jurisdiction and cannot hear a dispute unless it fits narrow criteria set forth by statute. Indeed, subject matter jurisdiction is so important that it is considered non-waiveable — a defendant could preserve the objection all the way through trial and decide to assert it only after a negative verdict, at which time the court would have to entertain the objection and dismiss the case if the objection is valid. This rarely happens, though, because courts on their own initiative (“sua sponte”) will dismiss a case for lack of subject matter jurisdiction if necessary.

The best thing to do is assert lack of subject matter jurisdiction at the earliest opportunity, along with lack of personal jurisdiction or any other grounds that might be applicable.

Improper Venue

Apart from the court’s power to hear the dispute or exercise authority over the defendant, there is the separate question of whether the complaint should have been filed in a different location (venue). Statutes often vary as to what the right venue is, but the complaint usually should be filed closest to where the defendant resides, where the cause of action accrued, or where any real property at issue in the complaint is situated. If venue is improper, the defendant can move to dismiss the complaint and/or transfer it to a proper court.

Improper Service Of Process

Unless the defendant agrees to a waiver or a specific exception applies, the plaintiff must accomplish personal delivery (service) of the summons and the complaint (process) to the defendant, either through a sheriff or a private process server. Moreover, this must be accomplished within a specific time after filing the complaint. In Florida, for example, service must take place within 120 days of filing. Montana is far more lenient in this regard, allowing for 3 years (!) to serve process after filing the complaint.

To the extent these requirements are not strictly observed, the defendant can move to quash service of process and to dismiss the complaint, since the court cannot acquire personal jurisdiction over the defendant absent proper service.

There are additional complications when attempting to serve a defendant who resides in a foreign country. As I discussed once before, failure to follow treaty requirements or abide by the foreign country’s domestic procedures can result in dismissal of the complaint as well.

Untimely Complaint (Statutes Of Limitation Or Repose)

Statutes that put a time limit on filing a complaint are normally asserted as an affirmative defense in the answer. However, if the allegations of a complaint show right up front that a claim is stale, the defendant can immediately assert a motion to dismiss for failure to state a cause of action (see below).

For example, if a statute of limitation fixes a two-year deadline for claims of assault and battery, but the complaint alleges that an assault and battery took place more than two years ago, the defendant can move to dismiss the complaint as untimely on its face. Note that the date of the complaint’s filing, not service, determines whether the complaint is timely. Also note that statutes of limitation often can be delayed or “tolled” for various reasons, either because the plaintiff could not discover the grounds for relief or because some other statutory exception applies.

Statutes of repose are more definite than statutes of limitation, since they establish a firm deadline after which there is absolutely no right of relief.

Whatever type of complaint a defendant confronts, it’s a good idea to double check all applicable statutes of limitation and repose. They may very well require dismissal even if the complaint is otherwise flawless and sets forth valid claims for relief.

Failure To State A Cause Of Action

This category of argument is fairly broad, requesting dismissal where the complaint’s allegations even if taken as true do not establish a legal basis for relief. Here is a brief list of situations where dismissal for failure to state a cause of action might be warranted:

• The complaint asserts a claim that does not exist in your jurisdiction, or which used to exist but has since been repealed.

• The stated claims, though theoretically valid, do not make the necessary factual allegations to establish a right of relief (e.g., a claim of fraud fails to allege an intentional misrepresentation, a claim of breach of fiduciary duty fails to establish the existence of a fiduciary relationship, etc.).

• The allegations show that the complaint is untimely for violating a statute of limitation or repose.

• The allegations contradict each other or an exhibit attached to the complaint.

• The complaint asserts equitable relief (e.g., unjust enrichment) despite showing that the plaintiff has a legal remedy (e.g., breach of contract).

• The complaint asserts a claim founded on a statute, but the statute does not provide for a private cause of action.

Conclusion

This is only a small sampling of the many arguments a defendant may assert to dispose of a complaint as legally deficient. When considering the extreme expense of litigation in terms of time, money, and stress, it’s a good idea for plaintiffs and defendants to scrutinize the complaint’s allegations to ensure that they are valid and warrant going to trial if no settlement is reached.