Motion to Dismiss

 It’s time to talk about the Motion to Dismiss since many of the post-election cases have been eliminated at that preliminary level. A Motion to Dismiss will generally only be granted where the plaintiff has “failed to state a claim upon which relief can be granted.” Put more simply, if we assume that everything in the Plaintiff’s complaint is true, is there is enough to continue the case? With that in mind, I listened with interest this morning to the live-streamed oral argument on the motion to dismiss Lynn Powell’s case in Georgia.

Powell said what you expect she would. After reciting her elevator speech about all of the alleged wrongdoings in Georgia, she told the judge that he needed to accept all of them as true for purposes of the motion. And that would have been true if it weren’t for one small problem. You never even get to the “facts” in the complaint unless you can show that you are the correct plaintiff (standing), that you are in the right court (jurisdiction), that you are raising the issues in a timely fashion (laches), and that you are entitled to relief you are requesting. The judge noted that the 3rdCircuit Court of Appeals on Saturday addressed those basic, and very preliminary, issues and decided that a case like hers couldn’t proceed. Powell’s response was “we don’t agree with that decision.” This won’t get you far in court. The court immediately dismissed the suit.

Dismissing this case, and the other that have been dismissed elsewhere, does not show a corrupt judiciary (as I’ve seen claimed elsewhere). It shows quite the opposite. The correct plaintiff, filing in the correct court, raising issues in a timely manner, and asking for appropriate relief, WILL be heard. Frankly, that isn't difficult to do for a competent lawyer. Those rules ensure that the American public can rely on decisions based on fact rather than innuendo and tweets. [Written December 7, 2020]