“Please make it go away”.

Being sued is not a joyful experience, and can cause stress, confusion, uncertainty and financial worries If you have been sued, one of the options you have is to file a pre-answer motion to dismiss.

Filing a pre-answer motion to dismiss is a powerful legal strategy that can potentially end a case early without the need for costly litigation. In New Jersey, the filing of such a motion is governed by Rule 4:6-2 of the New Jersey Court Rules, which outlines the defenses that can be raised by a defendant before submitting an answer. These defenses include lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, insufficient process, and failure to state a claim upon which relief can be granted.

Here are some strategic considerations to keep in mind when deciding whether to file a pre-answer motion to dismiss:

1. Early Case Termination

The primary advantage of filing a motion to dismiss is that it can lead to an early dismissal of the case, saving significant time and legal expenses. For instance, if a complaint is facially deficient or fails to establish the necessary legal elements of a claim, a successful motion can dispose of the case without the need for discovery or trial. This is particularly useful in cases where the claims are legally insufficient, even if the factual allegations are assumed to be true. For example, if someone files a suit against you in New Jersey, alleging that you defamed them 14 months ago, well, then you certainly should pursue a pre-answer motion to dismiss because generally, the statute of limitations for defamation in New Jersey is one year.

2. Framing the Litigation

A pre-answer motion to dismiss can force the plaintiff to refine or amend their complaint. In New Jersey, courts are generally lenient in allowing plaintiffs to amend their complaints to cure deficiencies, as per Rule 4:9-1. Therefore, even if the motion does not result in a dismissal, it can serve to narrow the issues at stake and clarify the legal theories the plaintiff intends to pursue. By exposing weaknesses in the plaintiff’s case, the defendant may gain an upper hand in shaping the future of the litigation.

3. Tactical Use in Negotiations

Filing a motion to dismiss can also be a strategic tool for early settlement negotiations. By demonstrating the defendant’s intent to vigorously contest the case and highlighting the weaknesses in the plaintiff’s complaint, the motion can push the plaintiff towards a more favorable settlement for the defendant. The plaintiff, faced with the risk of dismissal, may be more willing to compromise and avoid further litigation.

4. Delay in Discovery

In some cases, particularly in New Jersey state courts, the filing of a pre-answer motion can delay the onset of discovery. This can be advantageous for defendants who need more time to gather information or develop their defense. While discovery is typically not stayed in federal court unless explicitly requested, in New Jersey state court, the filing of a motion to dismiss may effectively pause the case until the motion is resolved.

5. Risks and Considerations

However, there are potential downsides to filing a pre-answer motion to dismiss. If the motion is denied, the court may view the defendant’s attempt to dismiss the case unfavorably, which could affect the court's perception going forward. Additionally, the denial of the motion may alert the plaintiff to weaknesses in their complaint, allowing them to amend their pleadings to address the deficiencies.

Moreover, certain defenses, such as failure to state a claim or lack of jurisdiction, can be waived if not raised in a timely manner under Rule 4:6-3. Therefore, defendants must carefully evaluate whether they can benefit from the motion or whether it is better to proceed directly to answering the complaint.

6. Conclusion

In conclusion, while a pre-answer motion to dismiss offers a powerful means of disposing of a case early, it should be used strategically. Defendants in New Jersey should assess the legal and factual strength of the plaintiff’s complaint and the potential impact of filing such a motion on the broader litigation strategy. When used correctly, it can shape the course of the litigation, save costs, and potentially lead to an early resolution in the defendant’s favor.

If you are involved in litigation in New Jersey and are considering filing a motion to dismiss, it’s important to consult with legal counsel to ensure that this strategic decision aligns with the specifics of your case.