Example 14.2
Takeaway point 14.2: Use procedural defenses to support your client’s motion to dismiss.
Let’s review one more example of this vital type of motion. This example is based on a procedural argument — that a court lacked jurisdiction because of an arbitration clause.
The lawsuit was filed by the world’s most famous cyclist, Lance Armstrong. Armstrong, who achieved global fame when he won the Tour de France seven consecutive times, was hounded for years by allegations that he had used steroids to boost his performance. Years after his last victory, the United States Anti-Doping Agency (USADA) charged him with using performance-enhancing substances, and it announced that it would ban Armstrong from cycling and strip him of his titles. Armstrong filed a lawsuit in federal court to challenge this penalty. Here, USADA moved to dismiss Armstrong’s lawsuit and force Armstrong to abide by an arbitration clause that he previously signed.Source: Defendant-USADA’s Motion to Dismiss for Lack of Subject Matter Jurisdiction or, in the Alternative, Motion to Dismiss or Stay Under the Federal Arbitration Act from Armstrong v. USADA, No. 1:12-cv-00606-SS (W.D. Tex. July 19, 2012).
Each of the points mentioned in this example is explored in greater detail later in the motion. This Introduction, however, provides a strong example of how a motion should burst from the starting line: the entire dispute is laid out in the first paragraph. Concision is even more important in trial courts than in appellate courts because trial judges are often so awash in filings.
The lawyers argue here that the court lacks subject matter jurisdiction.
This procedural move is commonly asserted in administrative cases. It alleges that a court lacks jurisdiction because the plaintiff has alternative steps that it must take before filing a lawsuit.
This motion is basically two motions wrapped into one. The USADA asks for one form of relief (dismissal) or for an alternative remedy (staying Armstrong’s lawsuit until the arbitration is complete). Motions may ask for multiple or alternative types of relief.
The phrase “undisputed facts” usually appears in summary judgment motions rather than in motions to dismiss. I include this example precisely because it reflects the sort of aggressive advocacy in which skilled lawyers engage. The USADA found previous lawsuits in which Armstrong asserted that he was bound by USADA rules. By relying on court records from those lawsuits, the USADA smuggled into the motion materials that the judge could not otherwise weigh until a summary judgment motion. Even though courts cannot consider facts outside the complaint without risking reversal, it’s hard for them to ignore facts like these in a motion to dismiss. Armstrong’s past quotation will probably force Armstrong to lock himself into a position in his opposition brief: he will need to confront these bad facts, and the court’s opinion can rely on his admissions. This sentence baits Armstrong into adding facts to the pile of what the trial judge can consider.
WARNING! Using a lot of abbreviations tends to confuse readers.
Even though this chapter is about motions rather than Introductions, notice how the lawyers advance their theme, which is that Armstrong is trying to get around the rules that apply to everyone else. And that’s an especially clever theme in this lawsuit given the underlying misconduct of which Armstrong is accused: ignoring the rules that prohibit steroids. Several months after this motion was granted, Armstrong publicly admitted that he had used steroids throughout his racing career.
This savvy approach — compiling errors in an Appendix — allows lawyers to point out the other side’s misdeeds without focusing on them in the body of the motion. It also lets them register their disagreement with those facts without creating a factual dispute that, under Fed. R. Civ. P. 12(d), would convert this filing into a motion for summary judgment, which would entail discovery and delay.