Winning Your Case Before Trial – Part 1
You have just been sued in federal court by someone serving you with a complaint. The complaint demands that you return and file an answer addressing each of the allegations that have been made against you by either admitting or denying them. Initially, you will probably think that immediately filing an answer is a good idea. However, there are number of critical considerations you need to make before filing that answer, and your next steps will lay the foundation for and change the course of how the case is decided and how much work you will have to put into it.
For example, what if instead of filing an answer, you respond successfully with a motion to dismiss a significant part of the claim made against you? While this might not make the case disappear altogether, it very well could increase the chances that the plaintiff will sit down and settle with you for a smaller amount than he had originally intended, as opposed to going through expensive and time-consuming litigation. In the end, the case was resolved, both parties saved time and money, and you did not even have to go to trial. On the other hand, filing pretrial motions is not always the best practice as it can be expensive and time consuming if not used strategically and tactfully. This article will discuss pretrial motions, such as the motion to dismiss, and provide you with a better understanding of why case strategy is important as soon as a claim is filed, and not just during trial itself. If you have been served a complaint and are being sued, it is imperative that you hire or consult with an experienced trial attorney as soon as possible so that you can strategize and calculate your best steps moving forward.
Please note that lobbyists are active in the state of Arizona with regards to Arizona Rules of Civil Procedure, especially in the last several years. While Arizona Rules of Civil Procedure generally follow the federal rules below, the corresponding Arizona rules may differ slightly based on recent changes. The best way to know for sure is by contacting an experienced Arizona trial attorney who has experience in both federal and state courtrooms.
Motion to Dismiss – Rule 12(b)
A motion to dismiss is a device that allows a defendant to attempt to dispose of a plaintiff’s claims before actually filing an answer to the plaintiff’s complaint. Motions to dismiss are governed by Federal Rule of Civil Procedure 12(b), and generally include dismissal on the following grounds:
12(b)(1) – Lack of Subject Matter Jurisdiction
Subject matter jurisdiction generally refers to a court’s power to preside over a particular type of case. An Arizona state superior court will generally have jurisdiction over all types of cases brought by a plaintiff above a dollar limit of $10,000. However, a federal district court in Arizona is a court of limited jurisdiction, meaning that it only has the power to preside over certain types of cases. A federal court has subject matter jurisdiction when either (1) the plaintiff’s claim arises from laws of the federal government or (2) there is the plaintiff and the defendants are citizens of different states, and the amount in controversy exceeds $75,000.
Unlike the other motions to dismiss, the Federal Rules of Civil Procedure allow a motion to dismiss for lack of subject matter jurisdiction at any point in the litigation process, even if an answer has already been filed, a jury has been selected, or the parties have made their arguments. Moreover, even if an opposing party fails to file a motion to dismiss a case from federal court for lack of subject matter jurisdiction, a court may dismiss the case on its own (this is called a dismissal sua sponte).
12(b)(2) – Lack of Personal Jurisdiction
While subject matter jurisdiction refers to a court’s ability to hear a case, personal jurisdiction generally refers to the ability of a court to exercise power over a particular defendant or item of property. Traditionally, a court would only have personal jurisdiction over a defendant who (1) lives in the state where the court resides, (2) was present in the state when he was served with a lawsuit, or (3) has consented to be sued in that state. If traditional personal jurisdiction does not exist, the court may generally assert personal jurisdiction over the defendant when they have purposefully availed themselves and they can reasonably anticipate getting sued in that state. This modern type of personal jurisdiction is often referred to as “minimum contacts.”
For example, while Apple, Inc. may not have its headquarters in Arizona, it has established minimum contacts by opening up numerous Apple stores, selling products here, etc. (sometimes described as “purposeful availment” of the right to do business in Arizona). Once a court determines that an individual or company has minimum contacts with the state of Arizona, it must also consider whether or not bringing in the defendant from another state is unreasonably just or unfair. Apple, Inc. can reasonably expect to be sued in Arizona because of the large amount of business that the company does here. On the other hand, if asserting personal jurisdiction over the defendant would cause the defendant to lose important rights by being sued in Arizona that he or she would reasonably expect in his or her home state, or if the defendant will have to travel an unreasonably far distance, the court may determine that the Arizona state or federal court lacks personal jurisdiction.
12(b)(3) – Improper Venue
Venue refers to the designation of the proper geographic district in which to bring an action, and it will depend on both where the cause of action arose and on the nature of the parties (whether they are individuals or entities). Venue is often confused with subject matter jurisdiction, but remember: subject matter jurisdiction is a question of power and venue is a question of geography. Here is an example to help you distinguish venue from subject matter jurisdiction:
Brad and Larry are in a car accident. Brad is an Arizona citizen and Larry is a Utah citizen. Brad files a lawsuit against Larry for his personal injuries and the damages to his car in California, because he travels to California frequently for work, in federal district court. Brad meets the subject matter jurisdiction requirements discussed above because he and Larry are from different states and the amount he is claiming is over $75,000. While Brad has subject matter jurisdiction, venue is improper because neither party lives in California and the car accident did not occur in California. This case will therefore be subject to transfer or removal by the federal court.
In addition to the difference of geography and power discussed above, another unique distinction is that venue, unlike subject matter jurisdiction, may be waived by the parties. Waiver does not have to be actively made by a party, but can be inadvertently waived by merely forgetting to make a motion to dismiss for improper venue. Once venue has been waived, either purposefully or accidentally, neither party may again make a 12(b)(3) motion to dismiss for improper venue.
12(b)(4) – Insufficient Process
A motion for dismissal based on insufficient process generally occurs when there is a problem with the actual documents served to the defendant. Let’s return to our Brad and Larry hypothetical above. If Brad serves Larry with a copy of a complaint to initiate a lawsuit but he calls him Gary instead, then this could potentially allow for a 12(b)(4) insufficiency of process motion. Other violations might include misstating the defendant’s address, giving insufficient time within which the defendant must appear and defend against the complaint, forgetting to receive the Clerk’s signature, etc. A Motion to Dismiss for insufficient process under Rule 12(b)(4) will generally be granted only when the defect is actually harms the defendant. If it is not prejudicial, then the court will almost always allow a quick amendment of the pleading to correct the plaintiff’s mistake.
12(b)(5) – Insufficient Service of Process
Service of process is the procedure that a party takes to give appropriate notice to other parties that they are being sued and must respond to the proceeding before a court, body, or other tribunal. As a constitutional matter, notice must be “reasonably calculated, under all circumstances, to apprise interested parties of the action.” In a regular federal lawsuit, notice consists of two documents: (1) a summons (formal notice of suit and time for response); and (2) a copy of the complaint.
Who can serve process?
Generally, any nonparty to the lawsuit who is at least eighteen years of age may serve process on a defendant, and the process server does not need to be appointed by a court.
When should process be served?
Generally, if a defendant is to be served in the United States, service is to take place no longer than ninety days after the complaint is filed with the court.
How is process served on an individual?
Personal Service – papers are served directly to the individual.
Substituted Service – papers are served on someone who resides in the defendant’s home.
This is usually okay if it is the defendant’s “usual abode” and person who the papers are served to is of suitable age and discretion who resides there, such as a spouse or a butler.
Service on Defendant’s Agent – papers can usually be served on a defendant’s agent authorized by appointment or law to receive service of process.
Arizona State Law Methods – In addition to the federal procedural methods for service, an Arizona plaintiff may use Arizona state methods for service in federal court if either (1) the state court sits in Arizona, or (2) the service is made in Arizona.
How is process served on a business or organization?
Process for businesses and organizations generally must be served on an officer or a managing agent. Such officer information is public and can usually be found easily on the Arizona Corporation Commission website.
12(b)(6) – Failure to State a Claim Upon Which Relief May be Granted
Failure to state a claim upon which relief may be granted means that the complaint filed by the plaintiff failed to properly address the elements required to prove their claim. For example, suppose Brad files his complaint against Larry (in the hypothetical above) and claims that Larry was negligent. To prove a case for negligence, Brad must show that (1) Larry owed him a duty of care, (2) that Larry breached that duty of care, (3) that Brad suffered injuries, and (4) that Brad’s injuries were caused by Larry’s negligent acts. So, if Brad failed to mention in his complaint one of those four elements, like whether Larry owed him any kind of duty of care, Larry would probably be able to bring a 12(b)(6) motion to dismiss Brad’s complaint and succeed. Rule 12(b)(6) motions are usually unsuccessful due to the fact that pleading requirements are quite liberal—in other words, a lawsuit does not have to be very detailed to survive a Rule 12(b)(6) motion.
12(b)(7) – Failure to Join a Necessary Party
Generally, when there is a party that is indispensable to the lawsuit that has not been named by the plaintiff in his or her complaint, the defendant may motion to dismiss the complaint under 12(b)(7). While there are many nuances to determining who is and who isn’t an indispensable party, here is an example that highlights when a party might be necessary. Imagine you have a minister who forms a contract with three specialized builders to design and construct a church. Each of the three will be responsible for a different aspect of the building. When the four individuals fail to erect the building, the minister does not want to sue them for money, but wants to sue them for specific performance of the contract. However, when the plaintiff files his complaint, he only names two of the contractors. When the two named parties file a motion to dismiss on failure to name a necessary party, the judge may very well grant their motion because, unless you can get all three of the specialized builders in court, it will be very hard to get specific performance. If you are considering filing a lawsuit, it is critical that you consider who to name in your complaint, otherwise you might just be wasting your time as the defendants may file a 12(b)(7) motion to dismiss if you fail to include the indispensable parties.
When and how should you invoke your 12(b) motions to dismiss?
These seven Rule 12(b) motions are the bases for motions to dismiss in federal court. Similarly, these seven rules have formed the foundation for Arizona motions to dismiss. Perhaps the most complicated issue that arises from these 12(b) rules involves whether they should be invoked in a motion, asserted as a defense, or both invoked in a motion and asserted as a defense. Getting this right is critical for your case. In theory, when you have good-faith grounds for dismissal, these motions should almost always be asserted. However, this may not always be the best strategy for your case moving forward. If you have been served with a lawsuit and you are unsure how to respond to the answer, it is vital that you discuss your options moving forward with an experienced Arizona litigation attorney.
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