Why Won’t the Judge Throw Out the Case Against Me? Part I: Motions to Dismiss
By Sarah A. Johnson, Esq.
A common question that engineers ask when faced with litigation, particularly litigation that the engineer feels is meritless, is “why won’t the judge just throw out the case?” While there are mechanisms in most jurisdiction for resolving cases via motion prior to trial, these typically take the form of a motion to which particular legal standards apply. The first of such motions is often a motion to dismiss. There are two types of motions to dismiss in most jurisdictions, one which argues that even if what the plaintiff has alleged is true, the plaintiff still has not stated a valid legal theory entitling him or her to recovery, and another which argues that even if you accept plaintiff’s allegations as true, there is an affirmative matter that prohibits the plaintiff from recovering.1
For the first type of motion to dismiss, i.e., a motion to dismiss for failure to state a claim upon which relief can be granted, the court must accept all of the plaintiff’s factual allegations as true and give the plaintiff the benefit of all reasonable inferences from the factual allegations.2 This motion essentially argues “so what?” In other words, it argues that even if everything the plaintiff alleges is true, plaintiff has not sufficiently pled facts supporting the elements of a recognized cause of action under the law.3
For example, in most instances, a plaintiff cannot simply allege that the engineer made an error as causation and damages are typically required elements of the causes of action that can be brought against the engineer. In other words, the plaintiff must also allege that the mistake caused some sort of damage to the plaintiff. If the plaintiff fails to allege the causation and damage elements, the complaint may be subject to a motion to dismiss.
The second type of motion to dismiss, i.e., a motion to dismiss due to an affirmative matter that defeats the claim, also accepts the plaintiff’s factual allegations4 as true. Examples of such affirmative matters include expiration of the statutes of limitations or repose, or application of some sort of immunity.5
Engineers in litigation are often frustrated by the inaccuracy of the allegations against them. However, such inaccuracies cannot be challenged by these motions to dismiss. Instead, such inaccuracies must be investigated via the process of discovery where the parties engage in fact finding through the use of written requests for information and documentation and oral depositions.
Given the limitations on motions to dismiss, successful motions to dismiss are often brought on technical grounds, which the engineer may not entirely understand, such as the economic loss doctrine, a doctrine which limits a plaintiff’s recovery of economic loss to those parties that the plaintiff has contracted with in certain circumstances, or the failure to obtain a valid certificate of merit in jurisdictions requiring same.6
Even if a motion to dismiss is granted, it is likely that the court will allow the plaintiff multiple chances to amend its pleadings and state a valid cause of action that is not defeated by an affirmative matter. While some frivolous claims by plaintiffs may be resolved by motions to dismiss, the vast majority will not be resolved this way due to the low pleading standard imposed on the plaintiff and the plaintiff’s many chances to get it right.
The fact that the case against the engineer survives a motion or motions to dismiss does not necessarily mean the case has merit, only that the plaintiff was able to successfully state a cause of action.
The investigation of the plaintiff’s factual allegations is yet to come in discovery. After discovery, the engineer may be able to pursue a dispositive motion, or motion for summary judgment, in an attempt to resolve the case favorably. However, the discovery process can be both expensive and time-consuming.
1 N.Y. Law § 3211(a)5 and 7 (LexisNexis 2026); 735 Ill. Comp. Stat. Ann. 5/2-615 (LexisNexis 2026); 735 Ill. Comp. Stat. Ann. 5/2-619; Fed. R. Civ. P. 12(b).
2 Pooh-Bah Enters., Inc. v. County of Cook, 905 N.E.2d 781,789 (Ill. 2009); Timken v. S. Denver Cardiology Assocs., P.C., 155 F.4th 1227, 1233 (10th Cir. 2025).
3 Timken, 155 F.4th at 1233.
4 Tolan & Son, Inc. v. KLLM Architects, Inc., 719 N.E.2d 288, 293 (Ill. App. Ct. 1999); Grove Isle Ass’n, Inc. v. Grove Isle Assocs. LLLP, 137 So.3d 1081, 1089 (Fla Ct. App. 2014).
5 O’Brien v. City of Chicago, 674 N.E.2d 927, 932, 934 (Ill. App. Ct. 1996).
6 Fireman’s Fund Ins. Co. v. SEC Donohue, Inc., 679 N.E.2d 1197, 1198, 1201 (Ill. 1997); Cal. Code. Civ. Proc. § 411.35(g) (Deering 2026) (“The failure to file a certificate in accordance with section shall be grounds for a demurrer pursuant to Section 430.10 or a motion to strike pursuant to Section 435.”).
