By Samantha A. Huettner
A dispositive motion is either a beacon of legal efficiency or a disfavored procedural shortcut that prematurely ends a perfectly good claim, depending on a party’s status as movant or nonmovant.
Young lawyers who find themselves and their pleadings on the wrong end of a Trial Rule 12(B)(6) motion should consider the following:
What is a 12(B)(6) motion? Rule 12(B)(6) of the Indiana Rules of Trial Procedure allows a court to dismiss a case for “failure to state a claim upon which relief can be granted.” Generally, there are two types of pleadings vulnerable to a 12(B)(6) motion: those that are legally deficient and fail to set forth all of the essential elements of a cause of action as a matter of law; or those that are factually deficient, with facts that make it clear that the claim is barred (for example, an injury case where the date of the accident shows that the applicable statute of limitations time-bars the claim). Attorneys faced with a 12(B)(6) motion should consider into which of these two categories their pleading falls, if any, in formulating a response.
What rules guide the court’s decision? A motion to dismiss under Rule 12(B)(6) tests a complaint’s legal sufficiency; that is, whether the allegations establish any set of circumstances under which a plaintiff would be entitled to relief. A court will accept as true the facts alleged, should consider the pleadings in the light most favorable to the plaintiff, and should draw every reasonable inference in the plaintiff’s favor. This legal framework creates an advantage for attorneys responding to a 12(B)(6) motion.
What happens if the court dismisses the case? If the court dismisses your case for failure to state a claim under 12(B)(6), you may amend your pleading once as of right within 10 days after service of notice of the court’s order sustaining the motion and thereafter with the court’s permission. T.R. 12(B)(8). Attorneys considering this route should first take a hard look at the facts and theories underlying the claim. The law is clear that a court may award fees against a party who files an amended complaint that suffers from the same deficiencies as the first if it finds that the amended complaint is “frivolous, unreasonable, or groundless.” I.C. § 34-1-32-1.
Should you ever voluntarily dismiss a case? Perhaps. If careful reflection and review of the law shows that the 12(B)(6) motion has merit and is likely to succeed, a voluntary dismissal without prejudice may be appropriate. Initiating an action will less often be considered frivolous, unreasonable or groundless than continuing to litigate the same action. Indiana is a notice-pleading state, which means that a case’s commencement may be justified on relatively insubstantial grounds, and “thorough representation will sometimes require a lawyer to proceed against some parties solely for the purpose of investigation through pretrial discovery.” Tipton v Roerig, a Div. of Pfizer Pharmaceuticals, 581 N.E.2d 1279, 1284 (Ind. Ct. App. 1991). Courts do expect attorneys to quickly determine the propriety of continuing the case and to dismiss promptly claims found to be frivolous, unreasonable or groundless. Depending on the strength of the 12(B)(6) motion and the attorney’s reassessment of the applicable facts, law and pleadings, making the hard decision to voluntarily dismiss the case may be in the best interest of both lawyer and litigant.•
Ms. Huettner is an associate in the Bloomington office of Clendening Johnson & Bohrer and a member of the Young Lawyers Section of DTCI. The opinions expressed in this article are those of the author.