How to Survive a Motion to Dismiss in New York Federal Court

I've often been asked "Why doesn't the Court just dismiss this lawsuit? It's frivolous."

The answer lies to this question lies in an understanding of the fundamentals of how a lawsuit is supposed to work, which in general terms, is as follows:

Other than in extenuating circumstances, such as where the plaintiff's claims, even if true, do not amount to a valid lawsuit, we prefer that plaintiffs be permitted to have their cases determined on the merits, or in layperson's terms, to "have their day in court."

As a result, the courts across the country - not merely New York - may only dismiss a lawsuit at its inception in very limited situations. In fact, one Federal Court in New York recently summarized the rule as follows:

"On a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must assume "all well-pleaded, nonconclusory factual allegations in the complaint to be true" and "draw all reasonable inferences in the plaintiff's favor."On the other hand, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." To survive a motion to dismiss, therefore, the allegations in the complaint must meet a standard of "plausibility."A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Plausibility "is not akin to a probability requirement," rather, plausibility requires "more than a sheer possibility that a defendant has acted unlawfully."

The plaintiff in support of her claim may allege "upon information and belief" facts that are "peculiarly within the possession and control of the defendant. Conversely, the plaintiff should not allege upon information and belief matters that are presumptively within her personal knowledge, unless she rebuts the presumption. Such matters include "'matters of public record or matters generally known in the community…inasmuch as everyone is held to be conversant with them.'"