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Why Two Thirds of a Loaf is Better than None

Apr 14, 2015 | Litigation

SunTzuThus it is that in war the victorious strategist only seeks battle after the victory has been won, whereas he who is destined to defeat first fights and afterwards looks for victory.” – Sun Tzu

Time and time again, I hear in my practice or from a friend of the inadequacy of another attorney in a litigation.

You have to take that claim with a grain of salt.

Usually, that inadequacy centers around why the lawyer could not get them out of a matter characterized as a complaint based on male bovine defecation.

Why could they not get them out of a motion to dismiss?

To be successful in a motion to dismiss, you need to be able to drill down on the Complaint, and sweat the small details of the pleading. “To survive a motion to dismiss … a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.”” (Ashcroft v. Iqbal, 556 U.S. 662, 678)(2009). 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.” (Iqbal, 556 U.S. at 678,)

To be successful in a Motion to Dismiss for Failure to State a Claim, you need to be able to make a credible case that even if we assume that everything in the Complaint is correct, and that every inference and every allegation is proven. “The issue is not whether a plaintiff will ultimately prevail but whether [he] is entitled to offer evidence in support of the claims.” (Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974), overruled on other grounds by Harlow v. Fitzgerald). If not, there’s no claim that can be made under law, then, a Motion to Dismiss for Failure to State a Claim will be granted. Consequently, the court should not grant a motion to dismiss “for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” (Conley v. Gibson, 355 U.S. 41, 45-46 (1957))

As litigators, whether we’re in federal or state court, we know that small stuff sometimes makes all the difference. If you don’t pay attention to the fine points of rules and procedures, a slight oversight will end up being outcome determinative. This consciousness of those small issues is the essence of our litigation strategy: “you have to do it right before you have the opportunity to be right.” Every move an adversary makes should be reviewed to determine if there are procedural flaws that can be exploited to our client’s advantage.

One of our recent litigation victories in U.S District Court for the District of Nevada again illustrates this point. We won a partial dismissal of an action in for our client. The Court dismissed with prejudice the claims of breach of contract and anticipatory repudiation of the contract. The Court also granted the motion to dismiss the claim of anticipatory repudiation, again, because the client was not a party to the private option agreement, it could not have renounced a contractual duty before the time for performance arrived because the client did not have any duties under the private option agreements.

Technical? Yes. Technical is where a Motion to Dismiss for Failure to State a Claim lives. Motions to Dismiss live in the nitpicking.

However, the Court allowed one claim for the interference with contract to go forward. They pled enough to keep that portion of the complaint alive.

So that’s why we can’t help but sweat the small stuff. Some procedural flaws create a cascade of procedural flaws, which create a more permanent, collateral estoppel. Beating back the opposition procedurally, pointing out the bad lawyering and procedural flaws may dispirit even the most ardent opponent.

Even as we sweat the small stuff, we do our best to avoid wasting time and money by quibbling over points of law when it will serve no strategic or tactical purpose. As seasoned litigators, we have learned from our years of sweat and experience when and how to turn a little bit of sweat on the small stuff to our client’s material advantage. Your can read our client’s 8-k announcing the victory here.


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I formerly worked as a satellite employee from my home state of New Jersey. I ended my employment with my former employer in 2016. In 2018, I was sued by my former employer for $1.1 million in Illinois State Court. I was referred to Brinen & Associates, LLC by a friend who is a client of the firm. Brinen & Associates, LLC came highly recommended. I contacted Joshua Brinen and then had a consultation at his office with his colleague Mark White. Together, Messrs. Brinen and White explained my options...

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