Example 14.1

Takeaway point 14.1: When filing a motion to dismiss, scour the plaintiff’s complaint (or amended complaint) to find relevant omissions, admissions, and revisions.

Motions to dismiss need to show a court that a complaint is, on its face, insufficient to provide the plaintiff with a remedy.

This case arose when a French citizen named Konowaloff sued a museum claiming to be the rightful owner of a painting by Paul Cezanne. Konowaloff alleged that the painting was seized from his ancestor (Morozov) in 1918. The complaint initially alleged that the Soviet government had taken the painting. The museum moved to dismiss the complaint based on the act of state doctrine, which prevents courts from unwinding valid actions taken by other sovereign governments. So what did Konowaloff do? He amended his complaint, alleging that the painting was seized by the Bolshevik Party rather than the official Soviet government. Here, the museum’s lawyers confront this maneuver.

Source: Museum’s motion to dismiss plaintiff’s amended complaint from Konowaloff v. Metropolitan Museum of Art, 10 CIV. 9126 SAS, 2011 WL 4430856 (S.D.N.Y. Sept. 22, 2011).

This clear preview of the argument is built around the legal test that governs this stage of the briefing: whether the complaint (or, in this case, the amended complaint) states a valid cause of action. This section of the motion argues that the seizure of the disputed painting was a valid act of government.

Here, we can see the chess moves that each side makes when a lawsuit begins. The plaintiff initially asserted that the Soviet government took his ancestor’s painting. The museum countered that this allegation was squarely barred by the act of state doctrine. The plaintiff then amended his complaint to get around this problem. Before filing a motion to dismiss, the defendent must assess whether doing so will end the plaintiff’s case or lead to a favorable settlement or, alternatively, whether the motion will simply provide free research to your adversary, who will amend its complaint and be in a better position to know what it needs to show to win its case.

Notice that the argument is built around the plaintiff’s allegations, not around what actually happened in 1918. The lawyers highlight the original complaint’s admissions to make the plaintiff look less reliable, truthful, and diligent.

Sharp language is an unfortunate reality of modern litigation.

Courts are supposed to consider only the materials within the four corners of the amended complaint. But notice that the museum’s lawyers brilliantly evade the legal standard here: they encourage the court to ignore what the complaint says — that the Cezanne painting was seized by a mere political party — and to reach instead the factual finding that the seizure was an official act given that other courts reached that conclusion. They try to convert a factual issue that the court cannot consider into a legal one that it can.

The motion plucks quotes from the amended complaint to advance its argument. Exercise great caution in crafting your complaints because omissions and statements can be fatal.

alt=00026.jpg> This sentence illustrates the risks of filing a motion to dismiss. The initial motion to dismiss caused Konowaloff to dig deeper for grounds to reclaim the painting. As a result, he learned that proving that Morozov was a victim of religious persecution would help his position, alerting his lawyers to pursue this issue during discovery, such as by getting an expert witness to discuss how Old Believers were persecuted by the Russian Orthodox Church. An unsuccessful motion to dismiss can strengthen a plaintiff.

The amended complaint alluded to Morozov’s religion but failed to allege that his painting was seized because of his religion. The Museum’s lawyers thereby exploit the amended complaint’s silence as well as what it said and what it altered from the original complaint.

The amended complaint alleged that international law was violated. Rather than delving into this legal morasse, the museum rejects that point’s relevance and uses the pithy phrase “it did not” to suggest that the plaintiff mischaracterized the law. This is an expert move that lets your client adapt to the applicable legal standard without letting the judge form unhelpful impressions about the facts or the law.