Two things that are nearly universally true in litigation are 1) the Defendant is never happy to be sued; and 2) there are almost always two sides to every story. As a result of these truths, we often get questions from clients asking if we can get the lawsuit dismissed because what was alleged in the lawsuit just isn’t true. We appreciate such questions from our clients, and also appreciate their frustration with this process, which is often slower than they would like. However, from a legal standpoint, as recently discussed by the North Carolina Supreme Court in Blue v. Bhiro, procedural problems can arise if a Defendant seeks to tell their side of the story to the Court too early.

I often explain cases to clients in the context of “off-ramps.” The first and most common “off-ramp” a Defendant will seek to take in litigation is a Motion to Dismiss for Failure to State a Claim under North Carolina Rule of Civil Procedure 12(b)(6). The second “off-ramp” is a Motion for Summary Judgment. There are major differences in these two “off-ramps” even though they have the potential to bring about the same result.

As the Supreme Court pointed out in Bhiro, in considering Rule 12(b)(6) Motions to Dismiss Courts are limited to the four corners of the Complaint (the allegations in the lawsuit). At issue in Bhiro was whether the trial court improperly considered matters outside the pleadings when considering a Motion to Dismiss on statute of limitations grounds in a medical malpractice case. In Bhiro, the Court of Appeals determined that the trial court had looked beyond the four corners of the complaint when ruling on the Motion to Dismiss. When a trial court looks beyond the four corners of the complaint when ruling on a Motion to Dismiss, the Motion to Dismiss is converted into a Motion for Summary Judgment, and parties are afforded a reasonable opportunity to present the necessary evidence to allow for the proper consideration of a Motion for Summary Judgment. It is error for a Court to consider matters outside the pleadings in ruling on a Motion to Dismiss without also affording all parties an opportunity to develop a summary judgment record. Ultimately in Bhiro, the Supreme Court concluded that the trial court, in considering memoranda and arguments of counsel which were not evidence, did not look outside the pleadings, and thus the trial court made no error in allowing a Defendant’s Motion to Dismiss pursuant to Rule 12(b)(6).

Oftentimes, our clients want us, in response to a complaint, to tell their side of the story as early as possible. What we have to explain to clients who are sued is that they will have an opportunity to tell their story. That opportunity usually comes at the Summary Judgment “off-ramp” after discovery has been completed. At the Motion to Dismiss for Failure to State a Claim “off-ramp” unfortunately, you are limited to the allegations made by the Plaintiff. Thus, at that early Motion to Dismiss, in order to successfully take the “off-ramp” you must show that even if every single allegation against you in the lawsuit were true, the Plaintiff has failed to state a claim for relief. You may have a fantastic piece of smoking-gun evidence that refutes the Plaintiff’s claims entirely, but you are not allowed to talk about it at a Motion to Dismiss for Failure to State a Claim (unless your evidence was mentioned in the four corners of the Complaint, which is unlikely).

Patience is important in litigation. You will eventually get the chance to tell your story when you are sued. However, it is important not to make improper procedural mistakes out of frustration with the process. In litigation, it is important to trust the process and follow the rules. Discovery will eventually be complete, and you will have the opportunity to take the Summary Judgment “off-ramp” where you can present your side of the story through evidence. Your lawyer is not being foolish by not telling your story at a Motion to Dismiss. Rather, they are operating within the confines of the Rules and what is available for consideration by the Court at that time. If your lawyer were to improperly go beyond the pleadings at the Motion to Dismiss for Failure to State a Claim stage, and if the Court were to permit them to do so, it is likely that a “quick win” would turn into a loss or “do-over” on appeal.

Knowing when to use what procedural tools and when you can present your evidence is important in litigation. If you have been sued and would like to discuss your defense options, one of our attorneys would be happy to schedule a consultation.