Avoiding Dismissal of Your Complaint at the Start of Your Lawsuit
One of the most difficult things injured plaintiffs have to do to be successful in suit is to plead their case clearly and thoroughly enough to withstand a motion to dismiss. How is this accomplished? Skilled trial attorneys understand the detail and specificity by which to assert your claims against the negligent parties. In order to do so, an effective plaintiffs’ counsel must first understand New Jersey Court Rule 4:6-2.
Rule 4:6-2 states:
Every defense, legal or equitable, in law or fact, to a claim for relief in any complaint, counterclaim, cross-claim, or third-party complaint shall be asserted in the answer thereto, except that the following defenses may at the option of the pleader by made by motion, with briefs: ... (e) failure to state a claim upon which relief can be granted… If, on a motion to dismiss based on the defense numbered (3), matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46…
On a Motion to Dismiss for failure to state a claim pursuant to R. 4:6-2(e), all well-pled allegations of the Complaint are accepted as true and the matter is to be resolved based upon the pleadings themselves. Holmin v. TRW, Inc., 330 N.J. Super. 30, 32 (App. Div. 2000), aff’d, 167 N.J. 205 (2001); Rieder v. State Dep’t. of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987). Well-pled allegations are factual allegations and the Court may and should ignore speculation, conclusions and argument. Ibid; In Re: Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420, 1426 (3d Cir. 1997); Craig v. Suburban Cablevision, Inc., 274 N.J. Super. 303, 307 (App. Div. 1994), aff’d, 140 N.J. 623 (1995). Accepting all plaintiff’s allegations as true, the Second through Fifth Counts of plaintiff’s Complaint must be dismissed because “even a generous reading of the allegation does not reveal a legal basis for recovery.” Camden County Energy Recovery Assocs. v. NJ Dep’t. of Envtl. Prot., 320 N.J. Super. 59, 64-65 (App. Div. 1999), aff’d, 170 N.J. 246 (2001).
The legal defects in a plaintiff’s claims cannot be cured by amendment or re-pleading, See Printing Mart v. Sharp Electronics, 116 N.J. 739 (1989). So, you must retain an experienced lawyer with the skill and knowledge to advocate on your behalf. You must hire a lawyer who knows how to draft a complaint that will not be subject to dismissal before you get to even be heard by the judge. You need Verp & Leddy. Call us today!