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An Information-Forcing Approach to the Motion to Dismiss

30 Pages Posted: 17 Nov 2012  

Samuel Issacharoff

New York University School of Law

Geoffrey P. Miller

New York University School of Law

Date Written: November 15, 2012

Abstract

This article proposes a new approach to the 12(b)(6) motion to dismiss. The idea works as follows. Defendant moves to dismiss exactly as under current practice. Plaintiff either responds to the motion, thus submitting the matter for decision, or files an affidavit proposing a plan of targeted discovery. After receiving defendant’s response, the court approves, rejects, or revises the proposed discovery plan. If the judge allows discovery, defendant either withdraws the motion or produces the information. If defendant withdraws the motion, the litigation proceeds in the usual way. If defendant continues the motion the parties engage in targeted discovery. The court then reviews the motion taking account of information which either party brings to the court’s attention, including information produced in discovery. If the court grants the motion, the case is dismissed and plaintiff pays defendant’s reasonable fees and costs associated with the motion and associated discovery. If the court denies the motion, the case continues and defendant pays plaintiff’s reasonable fees and costs. Our proposal would incentivize both parties to reveal information pertinent to the court’s decision. It promises to improve the operation of the motion to dismiss regardless of the substantive standard used to evaluate the sufficiency of the claims for relief.

Suggested Citation

Issacharoff, Samuel and Miller, Geoffrey P., An Information-Forcing Approach to the Motion to Dismiss (November 15, 2012). NYU School of Law, Public Law Research Paper No. 12-62; NYU Law and Economics Research Paper No. 12-37. Available at SSRN: https://ssrn.com/abstract=2176257 or http://dx.doi.org/10.2139/ssrn.2176257

Samuel Issacharoff (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6580 (Phone)
212-995-3150 (Fax)

Geoffrey P. Miller

New York University School of Law ( email )

Center for the Study of Central Banks
40 Washington Square South
New York, NY 10012-1099
United States
212-998-6329 (Phone)
212-995-4590 (Fax)

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