Catherine is a lawyer representing a retired fireman. The fireman, along with ten other individuals, invested in a commercial real estate development. The development company was later sued by a bank after it defaulted on a construction loan, and the lender named all of the investors in the suit, claiming they were guarantors of the loan. The case is pending in federal court. After the suit was served, the fireman met with Catherine and briefly met Karla, Catherine’s paralegal. In the meeting, Catherine recommended that, instead of filing an answer to the complaint, a motion to dismiss be filed. The fireman accepted the recommendation, but did not really understand what that meant. Before he left, the fireman ran into Karla, and he stopped her long enough to ask her to explain motions to dismiss. Of the options listed below, what is Karla’s best approach to answering the client’s question?
Explanation
Answer: C - State that a motion to dismiss, under the federal rules, can be filed before filing an answer to the complaint. It seeks to have a claim or party dismissed from the case because something about the complaint or its service is faulty. Answer C is correct because it is a brief, but reasonably accurate description of a motion to dismiss under Rule 12 of the Federal Rules of Civil Procedure. Answer A is not correct because answering this question, in this circumstance, would not be unauthorized practice of law. Answer B is not correct because it describes a motion for summary judgment. Answer D is not correct because Rule 12 does not authorize dismissal based on frivolousness.
