Drafting a Motion to Dismiss

This paragraph discusses the factors to consider when deciding to file a motion to dismiss, including the likelihood of success and the strength of arguments. It emphasizes the importance of not including weak arguments and highlights the role of a motion to dismiss in protecting against nonmeritorious lawsuits and promoting judicial economy. The Federal Rules of Civil Procedure, specifically Rule 12(b), are mentioned as the governing rules that provide specific grounds for dismissal, such as lack of jurisdiction, improper venue, and failure to state a claim. The paragraph also offers writing tips for drafting a persuasive motion, including writing a clear introduction, knowing the standards to be met, and applying the law to the facts convincingly.

The second paragraph focuses on the importance of drafting a factually accurate narrative in a motion to dismiss, with the exception of motions for failure to state a claim. It explains that while the court must assume allegations in the complaint are true, the motion should still outline the factual contentions that support the dismissal. The paragraph provides an example of how to present facts in a motion based on lack of service of process, emphasizing the need to cite admissible evidence for each fact. It also discusses the high standard for granting a motion to dismiss and suggests presenting the standard in a way that favors the client's position.

This paragraph delves into the standards for subject matter jurisdiction, particularly in the context of diversity jurisdiction under 28 U.S.C. § 1332. It explains the requirements for a federal court to have jurisdiction over state law claims and the importance of proving jurisdiction lies with the party asserting it. The paragraph also discusses the concept of a corporation's citizenship and the 'nerve center' test used to determine a corporation's principal place of business. It uses the Central West Virginia case as an example to illustrate how courts apply these principles, highlighting the factors considered in determining jurisdiction.

The fourth paragraph discusses the necessity of applying the law to the facts convincingly in a motion to dismiss. It stresses the importance of the legal arguments being persuasive and supported by relevant facts. The paragraph provides a detailed example of a legal analysis for a case involving subject matter jurisdiction, explaining how the facts and law lead to the conclusion that the court lacks jurisdiction. It emphasizes the need to answer why the client should prevail and contrasts the facts of the case with a previous case to strengthen the argument.

The final paragraph concludes the script by emphasizing the importance of improving legal writing skills, particularly in drafting a motion to dismiss. It suggests that correctly drafting facts, standards, law, and applying the law to the facts are key techniques to enhance persuasiveness and the likelihood of success. The paragraph reinforces the idea that thorough and convincing legal analysis is crucial for the effectiveness of any legal document, including a motion to dismiss.