First, the party filing the motion (you can call the party filing the motion the “moving party”), will submit his moving papers, which include a memorandum of law explaining to the Court why he thinks the case should be dismissed.
Second, the opposing party (the party opposing the motion may be called the “nonmoving party”) will then submit an Opposition to the motion to dismiss, arguing why he think his case should not be dismissed.
Third, the moving party will submit a Reply, in which he attempts to rebut the points raised in the Opposition.
After that, the judge might schedule oral argument. The parties (well, their lawyers) will come to court, explain their positions on the motion to dismiss, and answer any questions posed by the judge.
Finally, the judge will decide to grant or deny the motion.
But there could be months between the moving papers and the decision. What happens to the case in the meantime?
We’ll get to the answer in moment, but if you need a background on motions and motions to dismiss, please watch the videos below:
- Moving Papers
- Opposition Papers
- Oral Argument
So what happens to the case while the Motion to Dismiss is pending?
Like many things in life, it depends. The answer to this questions depends on the type of case and the court.
Usually, motions to dismiss are filed shortly after receiving the Complaint and before discovery has begun. Defendants typically file a motion to dismiss instead of an Answer, hoping to knock out the Complaint.
In federal courts, a motion to dismiss will typically not stay discovery,
There are some exceptions in federal court:
- For example, in federal securities fraud cases, the Private Securities Litigation Reform Act provides that discovery is automatically stayed (except in rare instances) pending a decision on the motion. This is a very powerful weapon for defendants. Once the defendant files the motion to dismiss, there is no discovery until the Court decides to grant or deny the motion.
- In other cases, a moving party might ask for a stay of discovery pending a decision on the motion to dismiss. In most cases a court will not grant such a motion unless the moving party can show that there is some pressing reason to stay the litigation.
Discovery on Motions to Dismiss for Lack of Personal Jurisdiction
Sometimes courts will order the parties to engage in limited discovery for purposes of determining whether a motion to dismiss for lack of personal jurisdiction should be granted or not. For example, let’s say Defendant Company A is sued in State B. Defendant Company A says it has no contacts with State B and asks the court in State B to dismiss the case for lack of personal jurisdiction. In such a circumstance, the court might allow plaintiff to seek discovery from Defendant Company A to determine the extent of Defendant Company A’s contacts with State B.