Consumer protection lawsuits in federal court: part 5 — motion to dismiss filed by defendant


The defendant has filed a motion to dismiss your consumer protection lawsuit in federal court — what happens next?

What is a motion to dismiss?
A motion is where the person filing it is asking the court to do something. To take some action.

Dismissal means to get rid of the case.

So a motion to dismiss is where the defendant, who has been served with your complaint (lawsuit), is asking the court to throw the case out of court.

The defendant will argue that there is no way you can ever win your case. Taking your facts in the complaint as being true, you still lose under the law.

The defendant will also try and argue that no matter how much detail you put into the complaint, the facts are not enough, or the defendant will say that the court should ignore your facts.

This gets absurd very quickly but this is the typical approach taken when a defendant asks the court to dismiss your lawsuit.

Do I get a chance to respond?

Almost always the court will issue a “briefing deadline” or other order that tells you when your response to the motion to dismiss is due. And normally it will also give the defendant the chance for the “last word” — it can respond to your response. The reason is that the defendant has to convince the court it is right and so it gets the first and last word since it bears this burden to convince the court.

You can point out why you have alleged the right facts and how the law is not against you — so it is possible for you to win. That is all that is necessary at this stage in the lawsuit — that it is possible you will win.

Sometimes we will take whatever the arguments are of the defendant about the facts and then amend the complaint so we clearly answer their arguments. These arguments are almost always absurd but sometimes it is quicker and easier to just change the complaint rather than to argue about the meaning of a word.

So for example, we might say “The defendant failed to investigate Plaintiff’s dispute after Equifax properly notified the defendant that Plaintiff disputed the account on Plaintiff’s credit report.”

The defendant, say Bank of America, might argue “Judge, the Plaintiff never said we were notified within 5 days by Equifax so we have no obligation to investigate the Fair Credit Reporting Act dispute.”

That’s crazy as we said “properly notified” but rather than fighting, we might just amend or modify the complaint to say:

**Plaintiff disputed to Equifax about the Bank of America account.

**Equifax notified Bank of America within the required 5 days of receiving the dispute.

**Bank of America was properly notified as required by the FCRA and it’s obligation to investigate was triggered under the FCRA.

I’m short cutting this so it doesn’t go on for too long but you get the idea.

Will the court have a hearing on this or will the court rule without oral argument?
If we don’t amend the complaint (which normally gets rid of the motion to dismiss), then the court has the option to decide the arguments on the written papers (briefs) or to have oral argument in the courtroom.

In the Northern District of Alabama where we primarily practice, it is most common to NOT have oral argument. The judges have found it to be most effective to look at the briefs (written arguments) and then decide.

Occasionally we have oral argument but most of the time the motions to dismiss are so lacking in merit that there is no need to take up the court’s time.

How long does it take to get a ruling from the court?
This depends on the judge and the judge’s schedule. So for example, if your judge is starting a 4 week long criminal case, then the motion to dismiss is going to be a distant memory as trials are very time intensive.

Generally, we get a ruling in about 30-90 days. Sometimes it takes longer if the judge is very busy or needs to take more time to decide the motion to dismiss.

What happens after the ruling?
Three possibilities:

1. Case is dismissed completely.

2. Case is partially dismissed.

3. Motion to dismiss is denied and the case proceeds just as it was filed in your complaint.

The first option — dismissed completely — is rare. If you are filing a case (through your lawyers) then you and your lawyers should be confident the case is a valid case with valid facts alleged. This should be rare and I can’t remember one our cases being dismissed this way in federal court.

The second option — partial dismissal — means that the case is still alive but maybe a particular claim is dismissed. Different judges view certain laws differently and so one judge may allow a particular claim to go forward but another judge takes the opposite approach. Normally if this happens — a partial dismissal — the dismissed claims are not the main claims but instead pretty minor ones.

The third option — motion to dismiss is denied — is the most common experience. If you have good facts alleged, and the law is valid, then the case should proceed.

Assuming the case is not dismissed completely, then the next step is for the defendant to answer the complaint (lawsuit) which we’ll talk about in our next article.

Hope you are enjoying our series on consumer protection lawsuits in federal court.

Give us a call at 205-879-2447 if you have any questions and we’ll be glad to help you any way we can.


John Watts

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