Motions to dismiss should be sparingly filed
One of our clients’ was served with a motion to dismiss the other day. In reviewing the basis, we came to see that it was largely without merit. However, even if it had merit, such a motion should necessarily be an uphill battle to grant. Such motions deny a plaintiff their day in court. Some attorneys feel that it is an obligatory part of litigation, which it was never intended to be.Dismissal under CR 12(b) is a drastic remedy granted only sparingly and with care, for the effect of granting the motion is to deny the plaintiff his or her day in court. Collins v. Lomas & Nettleton Co., 29 Wn. App. 415, 628 P.2d 855 (1981). Washington courts have said “it must appear beyond doubt that the plaintiff[] can prove no set of facts consistent with the complaint which would entitle them to relief.” See, e.g., Id. at 419; see also Karl B. Tegland & Douglas J. Ende, Washington Handbook on Civil Procedure, Vol. 15A, P. 292, (2011-2012) (allows a party to dismiss a claim only “when it is clear that the plaintiff will never prevail regardless of the facts proven at trial.”). In other words, in the case that commentator Karl Tegland refers to as “the leading modern case” on this point, “[a]ny hypothetical situation conceivably raised by the complaint defeats a CR 12(b)(6) motion if it is legally sufficient to support plaintiff’s claim.” Bravo v. Dolsen Co., 125 Wn.2d 745, 750, 888 P.2d 147 (1995). “Typical examples are cases in which the plaintiff’s claim is clearly barred by the statute of limitations, or the plaintiff is asserting a cause of action that is not recognized in this state, or the defendant has some other iron-clad defense as a matter of law.” Tegland & Ende, at 292.For purposes of deciding the motion, all of the factual allegations in the complaint are accepted as true. Dennis v. Heggen, 35 Wn. App. 432, 667 P.2d 131 (1983). The motion will be granted only if it appears beyond a reasonable doubt that the plaintiff could prove no facts consistent the complaint that would entitle the plaintiff to the relief requested. Orwick v. City of Seattle, 103 Wn.2d 249, 692 P.2d 793 (1984). Furthermore, Plaintiffs should be freely allowed to amend the complaint in lieu of a dismissal, if it appears that by doing so the plaintiffs may state a cause of action. CR 15(a); Caruso v. Local Union No. 690, 100 Wn.2d 343 (1983).