When a complaint is served, defense counsel’s knee jerk reaction often is to make a motion to dismiss. After all, a well-founded motion to dismiss may:

But moving to dismiss is not always the best approach when responding to a complaint. It sometimes may be best to simply answer the complaint, let the plaintiff proceed with his case and then move for summary judgment at the close of discovery, when it is too late for plaintiff to gather the evidence he needs to prove his case. For more information on answering a complaint, see Practice Note, Responsive Pleadings, Answering the Complaint and Standard Document, Answer. For more information on summary judgment motions, see Practice Notes, Summary Judgment: Overview (Federal) and Summary Judgment: Drafting and Filing a Motion and Reply (Federal) and Standard Document, Summary Judgment: Movant's Statement of Material Facts (Federal). Before moving to dismiss, counsel should evaluate the strength of its arguments and carefully consider the risks.

For example, if the grounds for moving to dismiss are weak (such as pleading defects which can be easily remedied by an amended complaint), the cost of making the motion may outweigh the potential benefits (see Kids of Am. Corp., v. Menard, Inc., No. 04-cv-00822004, , at *1 (W.D. Wis. June 15, 2004)). Aside from the expense, a weak motion to dismiss also may annoy the judge. You do not want the judge’s first impression of you to be as someone who wastes judicial resources (see Kids of Am. Corp., , at *1).

Even worse, a motion to dismiss may provide the plaintiff with valuable insight about:

(See, for example, Thomas H. Lee Equity Fund V., L.P. v. Grant Thornton LLP, 586 F. Supp. 2d 119, 135 (S.D.N.Y. 2008).)

In addition, your client’s settlement position may be jeopardized if a judge denies your motion to dismiss and indicates that he favors the plaintiff’s position in any way. While a successful motion to dismiss may devalue or eviscerate the plaintiff’s case, a failed one can inflate its value to more than it is worth.

For more information on motions to dismiss, see Practice Notes, Motion to Dismiss: Overview and Motion to Dismiss, Drafting a Motion to Dismiss, Opposition and Reply and Standard Document, Motion to Dismiss: Memorandum of Law.