Chapter 2: Motions to Dismiss for Failure to State a Claim

Katrin C. Rowan

Learning Outcomes

1. Understand:

  1. the bases for a Rule 12(b) motion to dismiss;
  2. the relevant procedural rules when making or opposing a Rule 12(b)(6) motion to dismiss; and
  3. the documents required when making or opposing a Rule 12(b)(6) motion to dismiss.

2. Be able to:

  1. apply the relevant procedural rules when making or opposing a Rule 12(b)(6) motion to dismiss; and
  2. draft the documents required when making or opposing a Rule 12(b)(6) motion to dismiss.

Introduction

The basic procedure for moving to dismiss a claim in federal court is set out in Federal Rule of Civil Procedure 12. See the appendix for links to each state’s rules.

Instead of filing an answer to a plaintiff’s complaint (see Rules 8 and 12), the defendant[1] may choose to move to dismiss the claim(s) instead. (Note that the plaintiff’s complaint will state one or more legal claims to relief, some or all of which may be the basis for a motion to dismiss.)

Rule 12(b) lists seven bases on which the defendant may move to dismiss:

(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.

When there is a non-frivolous argument that the court lacks subject-matter or personal jurisdiction (see 28 U.S.C. §§ 1331, 1332 and Fed. R. Civ. P. 4(k)), or that the case was filed in the improper venue (see 28 U.S.C. § 1391), or that there are defects or insufficiencies with process or service of process (see Fed. R. Civ. P. 4) or non-joinder (see Fed. R. Civ. P. 19), the defendant may move to dismiss one or more claims rather than filing an answer. See also Rule 12(g) and (h) for additional provisions on joining motions and waiving certain defenses, and note that Rule 12(h)(3) provides: “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” For more information on motions to dismiss under Rules 12(b)(1-5) and 12(b)(7), see 5B Wright & Miller, Federal Practice & Procedure §§ 1350-53, 1359.

When there is a non-frivolous argument that even if all the factual allegations are true, there would be no relief available under the applicable law for one or more claims, the defendant may move to dismiss the claim(s) for failure to state a claim under Rule 12(b)(6). This chapter focuses on these kinds of motions.

Why Move to Dismiss Under Rule 12(b)(6)

A Rule 12(b)(6) motion attacks the sufficiency of the allegations—not the truth of those allegations. Unlike a motion for summary judgment, which is generally filed later in the litigation and considers discovery material outside of the complaint, a 12(b)(6) motion is focused on the allegations themselves, before discovery has been conducted.[2]

Consider your litigation strategy when deciding whether to file a 12(b)(6) motion to dismiss instead of an answer, which can and should include defenses under Rules 8 and 12. A successful motion to dismiss may end the entire case or one of several claims advanced, saving your client time, money, and litigation exposure. However, if the motion prompts the plaintiff to file an amended complaint (see Rule 15(a), allowing the plaintiff to amend its pleading “once as a matter of course”), or if the court grants your motion and dismisses the case without prejudice (see Rule 41), allowing the plaintiff to file an amended complaint, then the plaintiff may have the opportunity to strengthen its case with a preview of your legal arguments.

When to Move to Dismiss

After the plaintiff serves a complaint, the defendant will need to decide whether to answer the complaint (with defenses) or move to dismiss one or more claims. If the defendant files an answer, the case will proceed, with further pleadings (if applicable), discovery, motion practice, and trial. If the defendant files a motion to dismiss, then the parties will brief the issue and the court will decide whether to grant or deny the motion. In general, the defendant must file the motion to dismiss within 21 days after service of the complaint, the same deadline as the answer. See Fed. R. Civ. P. 12(a), (b).

Check local rules to determine the deadline for responding to a motion to dismiss. For example, in the Western District of New York, the responding party must file a brief in opposition to the motion to dismiss within 14 days. The court may or may not request oral argument on the motion; many motions to dismiss will be decided on the briefs (without oral argument).

Procedural Rules

Exercise 2-1

 

As you learned in your Civil Procedure class, Rule 8(a)(2) requires that the complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” In the landmark decisions of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court instructed courts to evaluate not just whether the defendant was on “notice” of the plaintiff’s allegations but instead whether there is a “plausible” claim for relief.

Some claims and allegations require special pleading. Rule 9, “Pleading Special Matters,” outlines requirements for allegations of fraud, mistake, and conditions of mind; special damages; and other specific circumstances. Certain causes of action might require particularized pleading, so always check the requirements for each claim before drafting a complaint, answering a complaint, or moving to dismiss.

In assessing a claim on a motion to dismiss, the court assumes that all factual allegations—but not legal conclusions—are true. Therefore, the moving party should point out any legal conclusions masked as factual allegations in the complaint. The court must “draw all reasonable inferences in [the plaintiff’s] favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks and citation omitted). Based on these facts as connected to the underlying claim, the claims must be not only “conceivable” but instead “plausible.” Twombly, 550 U.S. at 555. Courts must use “judicial experience and common sense” in evaluating whether there is a plausible claim for relief. Iqbal, 556 U.S. at 679.

The motion to dismiss generally focuses only on the sufficiency of the allegations in the complaint. In addition, in assessing a motion to dismiss, courts “consider documents that are attached to or submitted with the complaint and any matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, and items appearing in the record of the case.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (citation modified); see also Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”). Courts may take judicial notice of undisputed, common knowledge facts outside the complaint, such as “(1) scientific facts: for instance, when does the sun rise or set; (2) matters of geography: for instance, what are the boundaries of a state; or (3) matters of political history: for instance, who was president in 1958.” Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir. 1997).

If the moving party attaches materials to a motion to dismiss that are outside the scope of the pleadings, the court “has discretion to either exclude these materials or convert the motion to dismiss into a motion for summary judgment.” Bellavia Blatt & Crossett, P.C. v. Kel & Partners LLC, 151 F. Supp. 3d 287, 291 (E.D.N.Y. 2015) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 154 (2d Cir. 2002), aff’d, 670 F. App’x 731 (2d Cir. 2016). If the court chooses to proceed under Rule 56 (summary judgment), “all parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d).

Exercise 2-2

   

Supporting Documents

The defendant will file a motion or notice of motion and supporting memorandum of law (also called a brief). See Rule 7(b), which requires that motions be in writing and “state with particularity the grounds for seeking the order,” as well as the relief sought. The plaintiff will respond with a memorandum of law (brief) in opposition to the motion. Depending on local rules, the defendant may file a reply. Always check local rules to confirm page/word limits and other formatting requirements, courtesy copies, and other details. In addition to the example documents below, you can ask your supervisor or colleague for a sample filing in the same jurisdiction, to give you an idea what this brief should look like conforming to local standards.

Because the court will view the substantive issue through the procedural lens of a motion to dismiss, the underlying arguments in the supporting and opposing briefs must be framed in accordance with this standard. For a review of how to organize and write a persuasive memorandum of law, see Nan Haynes, Legal Writing Handbook for Clinical Students (CALI eLangdell Press 2023).

Checklist

✓ Consider your litigation strategy, in terms of deciding whether to answer the complaint or move to dismiss for failure to state a claim.

✓ Identify the jurisdiction whose procedural rules apply, which may be federal or state.

✓ Find the applicable procedural rules, including the jurisdiction’s pleading standard and how the court will view the factual allegations in the complaint.

✓ If you are in federal court, determine whether state or federal substantive law applies.

✓ Identify the required supporting documents.

✓ Review the filing rules for your jurisdiction, your local court, and for the judge assigned to your case.

Sample Documents

In the first sample, defendant Charles Martin moves to dismiss a claim alleging that he defamed plaintiff Dorothy Anderson. Martin argues that his words are protected speech as “opinions” and thus cannot be defamatory.

In the second sample, plaintiff Lucy Emmett has alleged in her complaint that the defendant school district violated her First Amendment rights when it prohibited her from speaking at a meeting without first submitting a written comment in accordance with the school district policy. The school district has moved to dismiss the claim, arguing that its enforcement of the policy complied with relevant First Amendment requirements as a reasonable, viewpoint-neutral restriction.

In both samples, the defendant as the moving party accepts as true the factual allegations pled in the plaintiff’s complaint. The defendant argues that, even if these facts are true, the plaintiff has no right to relief under governing law, and thus the court should dismiss the claim.

 

Sample Document 1

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

DOROTHY ANDERSON,
                           Plaintiff 25-cv-260
                   v.
CHARLES MARTIN,
                           Defendant

DEFENDANT’S NOTICE OF MOTION TO DISMISS COMPLAINT

Defendant, Charles Martin, respectfully requests that the Court dismiss the complaint of Plaintiff, Dorothy Anderson, for failure to state a claim upon which relief may be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). In support of this motion, Defendant relies on the attached memorandum of law, filed pursuant to Local Rule of Civil Procedure 7(a).

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

 

 

Sample Document 2

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

DOROTHY ANDERSON,
                           Plaintiff 25-cv-260
                   v.
CHARLES MARTIN,
                           Defendant

DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF

MOTION TO DISMISS COMPLAINT

This dispute arises out of a highly contentious local election for New York City Council. Displeased with her loss last November, plaintiff Dorothy Anderson now seeks to blame her former campaign manager, Charles Martin, for her failure to win a tight race. Because Martin’s statement about Anderson was constitutionally protected opinion, Anderson’s defamation claim must fail as a matter of law. Accordingly, Martin requests that the Court grant his motion to dismiss Anderson’s complaint.[3]

 

STATEMENT OF FACTS[4]

 

Charles Martin has nearly twenty years of experience in local politics. Compl. ¶ 12. Anderson, a New York resident, is a former political candidate for New York City Council. Compl. ¶ 10. Martin, a New Jersey resident, was Anderson’s campaign manager until the events at issue in this lawsuit transpired in October 2024. Compl. ¶ 14. At that point, the parties began disagreeing about Anderson’s affiliation with a particular local interest group, Reform NYC. Compl. ¶ 30. Martin became disenchanted with Anderson’s candidacy and resigned as her campaign manager on October 29, 2024. Compl. ¶ 34. Martin then sent an email to a group of four top advisors at Anderson’s opponent’s campaign, stating: “Dorothy Anderson is a traitor to the citizens of New York. She’s not interested in helping anyone but herself.” Compl. ¶ 36.

On Election Day 2024, Anderson did not win her race. Compl. ¶ 45. She promptly sued Martin for defamation, blaming him for her loss. Compl. ¶ 56.

 

ARGUMENT

 

THIS COURT SHOULD DISMISS THE COMPLAINT BECAUSE, BASED ON THE FACTS AS PLED, IT DOES NOT STATE A CLAIM FOR DEFAMATION.

 

When the plaintiff has failed to “state a claim upon which relief can be granted,” the defendant may move to dismiss the complaint.[5] Fed. R. Civ. P. 12(b)(6). In deciding the motion, the court must “draw all reasonable inferences in Plaintiff[’s] favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks and citations omitted). If the complaint has not stated “enough facts to state a claim to relief that is plausible on its face,” the court should dismiss the complaint. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). As courts have made clear, “[b]ecause a defamation suit ‘may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself,’ courts should, where possible, resolve defamation actions at the pleading stage.” Adelson v. Harris, 973 F. Supp. 2d 467, 481 (S.D.N.Y. 2013) (quoting Washington Post Co. v. Keogh, 365 F.2d 965, 968 (D.C. Cir. 1966)), aff’d, 876 F.3d 413 (2d Cir. 2017).

In this diversity action,[6] this Court will apply the forum state’s—New York’s—choice of law rules. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). New York law provides that the substantive law of the “state with the most significant relationship to the issues in dispute” should be applied. Reeves v. Am. Broad. Cos., 719 F.2d 602, 605 (2d Cir. 1983) (citing Nader v. Gen. Motors Corp., 255 N.E.2d 765, 768 (N.Y. 1970)). Here, the parties agree that New York substantive law applies to govern this dispute.

New York’s defamation law has been developed to comply with federal constitutional requirements.[7] See, e.g., Immuno AG. v. Moor-Jankowski, 567 N.E.2d 1270, 1274-75 (N.Y. 1991) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)). It is axiomatic that opinions are protected by the First Amendment of the United States Constitution. Gross v. N.Y. Times Co., 623 N.E.2d 1163, 1167 (N.Y. 1993). As the New York Court of Appeals has made clear: “The rule to be applied may be simply stated. An expression of pure opinion is not actionable. It receives the Federal constitutional protection accorded to the expression of ideas, no matter how vituperative or unreasonable it may be.” Steinhilber v. Alphonse, 501 N.E.2d 550, 552 (N.Y. 1986).

Therefore, a plaintiff cannot state a claim for defamation, and the lawsuit cannot proceed, if the statement at issue constitutes a “pure opinion.”[8] See Davis v. Boeheim, 22 N.E.3d 999, 1003 (N.Y. 2014). To assess whether a statement constitutes a protected opinion as a matter of law, courts apply a factor-based test to determine “what the average person hearing or reading the communication would take it to mean.” Steinhilber, 501 N.E.2d at 553. Courts consider:

(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal [to] readers or listeners that what is being read or heard is likely to be opinion, not fact.

Mann v. Abel, 885 N.E.2d 884, 886 (N.Y. 2008) (citations omitted).

Courts typically focus on the third factor—the full context of the statement and the broader social context—in concluding that a statement constitutes protected opinion. See Brian v. Richardson, 660 N.E.2d 1126, 1129 (N.Y. 1995) (noting that the context-based third factor “lends both depth and difficulty to the analysis”). In assessing context, courts have repeatedly highlighted the heated rhetoric featured in political and similar contexts as a sign that readers or listeners would understand the sentiment expressed to be opinion in nature. As the New York Court of Appeals has stated in a case involving a labor dispute, in concluding that a related offensive statement constituted protected opinion, “even apparent statements of fact may assume the character of statements of opinion, and thus be privileged, when made in public debate, heated labor dispute, or other circumstances in which an audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole.” Steinhilber, 501 N.E.2d at 556 (internal quotation marks and citation omitted). See also Mann, 885 N.E.2d at 886 (noting the “tenor” of political comments against a town attorney in concluding that statements were nonactionable opinion); 600 W. 115th St. Corp. v. Von Gutfeld, 603 N.E.2d 930, 938 (N.Y. 1992) (emphasizing the public hearing forum at issue and “the skepticism a reasonable listener brings to such proceeding” in holding that the statement was protected opinion).

As for the first two factors of the test—whether the statement contains precise language that could be proven true or false—courts have consistently dismissed defamation claims consisting of hyperbolic language which a reasonable reader would recognize as constituting opinion. See, e.g., id. at 937 (holding that use of “colloquial and loose terms ‘smells of’ and ‘fraudulent as you can get’ . . . conveys to listeners that he has no hard facts, only generalized suspicions”); Brian, 660 N.E.2d at 1131 (noting “the predominant tone of the article, which was rife with rumor, speculation and seemingly tenuous inferences” and affirming dismissal of complaint); Mann, 885 N.E.2d at 277 (holding that “the tenor of the column, including allegations that Mann was a ‘political hatchet Mann’ who appeared to ‘pull[ ] the strings,’ clearly signals the reader that the piece is likely to be opinion, not fact”).

Here, Martin’s statement—hyperbolic rhetoric communicated in the context of a heated political campaign—is a protected opinion that cannot be the basis of a defamation claim.[9] Paramount to this case is the political context in which Martin issued his statement. A reasonable reader of the statement would recognize, by its very nature, that the dispute arose between two individuals in a hotly contested political race. As with the labor dispute at issue in Steinhilber, the local political scuffle in Mann, and the public hearing in 600 W. 115th Street, just to name a few, the statement in this case was inextricably connected with an ongoing election.[10] Such a situation is inherently heated and full of opinionated rhetoric, and a reasonable reader would interpret the statement as such.

With respect to the first two factors of the test, the language of the statement itself is imprecise and not capable of being proven true or false. Martin stated that Anderson is a “traitor,” but reasonable minds could differ as to what constitutes a “traitor”; it is not a concrete factual allegation. Additionally, Martin’s statement that Anderson is “not interested in helping anyone but herself” is impossible to prove, given that the reasonable reader does not have access to the internal thoughts of Anderson’s mind.

For all these reasons, Martin’s statement about Anderson was a constitutionally protected opinion and cannot be the basis of a defamation claim.

 

CONCLUSION

 

As a matter of law, based on the facts as pled by Anderson that establish that Martin’s statement cannot be defamatory, this Court should conclude that Anderson has failed to state a claim. Accordingly, Martin respectfully requests that the Court grant this motion and dismiss the defamation claim, with prejudice.[11]

 

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

 

 

 

Sample Document 3

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

DOROTHY ANDERSON,
                           Plaintiff 25-cv-260
                   v.
CHARLES MARTIN,
                           Defendant

 

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANT’S MOTION TO DISMISS COMPLAINT

 

This is a case about significant harm caused to a public servant’s reputation, caused by a defamatory statement with devastating impact. Because the plaintiff has satisfied the minimal pleading standards at this early stage of the litigation, this Court should deny the defendant’s motion to dismiss and allow this case to proceed for a full resolution of the issue.[12]

 

FACTS[13]

 

Dorothy Anderson, a lifelong New York resident, has devoted her career to serving the residents of New York City. Compl. ¶ 8. After working for a series of non-profit agencies and elected officials, Anderson decided to run for office herself. Compl. ¶ 9. In January 2024, Anderson declared her candidacy for New York City Council and began mounting her campaign. Compl. ¶ 10. She entrusted her longtime friend and frequent collaborator, New Jersey resident Charles Martin, to serve as her campaign manager. Compl. ¶ 14.

Unfortunately, the relationship soured in October 2024 when Martin became incensed about Anderson’s connections with an established local non-profit called Reform NYC. Compl. ¶ 30. Without first fully discussing his concerns with Anderson, Martin resigned as campaign manager on October 29, 2024. Compl. ¶ 34. That same day, while still sitting in the campaign office, Martin sent out an email to four top advisors at Anderson’s opponent’s campaign, announcing his resignation and including the statement: “Dorothy Anderson is a traitor to the citizens of New York. She’s not interested in helping anyone but herself.” Compl. ¶ 36.

Less than a week after Martin’s statement, Anderson lost her bid for New York City Council. Compl. ¶ 45. She now seeks a remedy for the harm Martin caused to her reputation under the protections afforded by New York defamation law. Compl. ¶ 56.

 

ARGUMENT

 

THE COMPLAINT SHOULD NOT BE DISMISSED BECAUSE, DRAWING ALL REASONABLE INFERENCES IN THE PLAINTIFF’S FAVOR, IT STATES A CLAIM FOR DEFAMATION SINCE THE DEFENDANT’S REMARKS UTILIZED SPECIFIC LANGUAGE THAT CAN BE PROVEN FALSE.

 

The Federal Rules of Civil Procedure require only “a short and plain statement of the claim” in the complaint, demonstrating entitlement to relief. Fed. R. Civ. P. 8(a)(2).[14] To survive a motion to dismiss under Rule 12(b)(6), a complaint must include “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Determining whether a complaint states a claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Courts “must accept as true” all well-pled factual allegations in evaluating whether the plaintiff has shown “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678. “A motion brought under Rule 12(b)(6) challenges only the ‘legal feasibility’ of a complaint. The test of a claim’s ‘substantive merits’ is ‘reserved for the summary judgment procedure, governed by [Rule] 56, where both parties may conduct appropriate discovery and submit the additional supporting material contemplated by that rule.’” Fairstein v. Netflix, Inc., 553 F. Supp. 3d 48, 62 (S.D.N.Y. 2021) (quoting Goel v. Bunge, Ltd., 820 F.3d 554, 558-59 (2d Cir. 2016)).

The parties agree that New York substantive law governs this dispute. While federal and New York law recognize the constitutional protections afforded to opinions, people are not afforded free reign in making harmful statements about others. Davis v. Boeheim, 22 N.E.3d 999, 1003 (N.Y. 2014). At the motion to dismiss stage, this Court need consider only whether the complaint has included “enough facts to state a claim to relief that is plausible on its face.”[15] Moraes v. White, 571 F. Supp. 3d 77, 91 (S.D.N.Y. 2021) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

In assessing whether a statement contains actionable factual allegations, courts employ a “holistic approach,” evaluating how a reasonable reader would perceive “the over-all context” of the statement “rather than sifting through a communication” word by word. Brian v. Richardson, 660 N.E.2d 1126, 1130 (N.Y. 1995). Courts apply a three-factor test in making this determination. Davis, 24 N.Y.3d at 1005. First, courts consider “whether the specific language has a precise meaning which is readily understood.” Id. The use of “specific[,] easily understood language” rather than vague or ambiguous language suggests that a reasonable reader would perceive the statement to be fact, rather than opinion. Gross v. N.Y. Times Co., 623 N.E.2d 1163, 1167 (N.Y. 1993). Second, courts evaluate “whether the statements are capable of being proven true or false.” Davis, 22 N.E.3d at 1005. The inclusion of verifiable facts as opposed to “mere, nonactionable ‘rhetorical hyperbole’ or ‘vigorous epithet[s]’” indicates a fact-based statement. Gross, 623 N.E.2d at 1169 (quoting Greenbelt Publ. Assn. v. Bresler, 398 U.S. 6, 14 (1970)).

Third, and most importantly, courts consider “whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such to signal readers or listeners that what is being read or heard is likely to be opinion, not fact.” Davis, 24 N.Y.3d at 1005. In evaluating this factor, courts “consider the content of the communication as a whole, its tone and apparent purpose.” Immuno AG. v. Moor-Jankowski, 567 N.E.2d 1270, 1278 (N.Y. 1991) (citing Steinhilber v. Alphonse, 501 N.E.2d 550, 555 (N.Y. 1986)).

Here, all three factors weigh in favor of holding Martin’s statement to be actionable as defamatory. Martin called Anderson a “traitor” who is “not interested in helping anyone but herself.” The term “traitor” has a commonly understood meaning[16]: a person who has betrayed someone or something. Anderson deserves the opportunity to conduct discovery and make substantive arguments as to why this statement is false and thus defamatory. Similarly, Anderson can demonstrate that she is indeed interested in helping others, hence her run for political office. The mere fact that the statement was made in the context of a political campaign does not insulate it from a defamation claim, and no court has ever so held.

Because a reasonable reader would conclude that Martin used specific language that could be proven false, Anderson has pled a “plausible” defamation claim that should survive this motion to dismiss.[17]

 

CONCLUSION

Anderson has successfully stated a claim for defamation because Martin’s statement is not a “pure opinion.” Accordingly, the Court should deny the motion to dismiss and allow this lawsuit to proceed.[18]

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

 

Exercise 2-3

Sample Document 4

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

Lucy Emmett,
                           Plaintiff 25-cv-62
                   v.
SUNNYDALE UNIFIED SCHOOL DISTRICT,
                           Defendant

 

DEFENDANT’S NOTICE OF MOTION TO DISMISS COMPLAINT

Defendant, Sunnydale Unified School District, respectfully requests that the Court dismiss the complaint of Plaintiff, Lucy Emmett, for failure to state a claim upon which relief may be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). In support of this motion, Defendant relies on the attached memorandum of law and declaration with exhibit, filed pursuant to Local Rule of Civil Procedure 7.1(a).

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

 

 

 

Sample Document 5

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

Lucy Emmett,
                           Plaintiff 25-cv-62
                   v.
SUNNYDALE UNIFIED SCHOOL DISTRICT,
                           Defendant

 

DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO DISMISS COMPLAINT

This case involves a school district’s policy to require community members to submit written comments before speaking orally at district meetings. Because this reasonable, viewpoint-neutral policy complies with constitutional requirements, this Court should grant the motion and dismiss the complaint with prejudice.[19]

 

STATEMENT OF FACTS[20]

 

During the 2023-2024 school year, defendant Sunnydale Unified School District (the “District”) began exploring possible curricular changes to its art and music programs, in response to a looming budget crisis. Compl. ¶ 15. To ensure transparency, the District held a series of meetings at various schools within the District, id. ¶ 16, that were conducted in accordance with its publicly available policy on school-related meetings (the “Policy”), attached to the Declaration of Luke Lawson as Exhibit A.

The Policy provides that any interested community members, including but not limited to parents and other caregivers, must submit a written comment 24 hours or longer before a scheduled meeting, in order to be permitted to speak at the meeting. Ex. A ¶ 3. For District employees, including but not limited to teachers, no such requirement exists, and they may speak at a meeting without submitting a written comment ahead of time. Id. ¶ 4. The Policy provides: “These rules are designed to ensure that the District has an opportunity to thoughtfully consider community feedback, questions, and concerns in advance of a meeting and facilitate the orderly functioning of the meeting.” Id. ¶ 5.

On March 13, 2024, the District held a meeting at Sunnydale Elementary to discuss the proposed curricular changes. Compl. ¶ 17. Plaintiff Lucy Emmett, a parent of a child at Sunnydale Elementary, who is not employed by the District, did not submit a written comment in advance of the meeting. Id. ¶ 19. Nevertheless, Ms. Emmett attended the meeting and attempted to contribute a spoken comment during the meeting. Id. ¶ 20. In accordance with the District’s Policy requiring the submission of a written comment before a meeting, the District administrators running the meeting did not permit her to speak. Id. ¶ 24. This lawsuit followed.

 

ARGUMENT

This Court should dismiss Ms. Emmett’s complaint with prejudice, because the facts as pled establish that the District did not violate her First Amendment rights. Rather, the District was well within constitutional parameters in establishing and following its Policy to ensure orderly meetings.

When a plaintiff has failed to “state a claim upon which relief can be granted,” a defendant may move to dismiss the complaint.[21] Fed. R. Civ. P. 12(b)(6). In deciding the motion, the court must “draw all reasonable inferences in Plaintiff[’s] favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks and citations omitted). If the complaint has not stated “enough facts to state a claim to relief that is plausible on its face,” the court should dismiss the complaint. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

In deciding a Rule 12(b)(6) motion to dismiss, the court should consider “facts stated on the face of the complaint, documents appended to the complaint or incorporated in the complaint by reference, matters of which judicial notice may be taken, . . . [and] documents not expressly incorporated by reference in the complaint that are nevertheless integral to the complaint.” Clark v. Hanley, 89 F.4th 78, 93 (2d Cir. 2023) (citation modified). In this case, Ms. Emmett extensively references the Policy in her complaint, and the Policy is publicly available on the District’s official website. Thus, this Court should deem the Policy as integral to the complaint, of which it can also take judicial notice, and thus consider the Policy when deciding this motion to dismiss. See, e.g., Missere v. Gross, 826 F. Supp. 2d 542, 553 (S.D.N.Y. 2011) (noting that a district court may “take judicial notice of all documents in the public record”).

The meeting at issue was a “limited public forum” for purposes of the First Amendment analysis, which is “where the government opens a non-public forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain subjects.” Hotel Emps. & Rest. Emps. Union, Loc. 100 of New York, N.Y. & Vicinity, AFL CIO v. City of New York Dep’t of Parks & Rec., 311 F.3d 534, 545 (2d Cir. 2002). The government entity may restrict speaker identity, provided that these restrictions are[22] (1) “reasonable in light of the purpose served by the forum” and (2) “are viewpoint neutral.” Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, 127 F.3d 207, 211-12 (2d Cir. 1997) (citation modified). In limited public fora, “government entities are permitted to restrict the form or manner of speech offered by members of the public, even if such speech addresses the topic or agenda of that forum. Such restrictions on the form of speech are not subject to strict scrutiny; courts need only assess whether the restrictions are reasonable and viewpoint neutral.” Tyler v. City of Kingston, 74 F.4th 57, 63 (2d Cir. 2023).

 

A. The District imposed reasonable limitations in accordance with its Policy in light of the District’s interest in maintaining order at its meetings.

 

First, the restrictions placed on the District meeting pertaining to possible curricular changes were eminently reasonable. The reasonableness inquiry “turns on the particular purpose and characteristics of the forum and the extent to which the restrictions on speech are reasonably related to maintaining the environment the government intended to create in that forum.” Id. (citation modified).

Importantly, the First Amendment does not require that the restriction implemented be the most or the only reasonable restriction[23], but instead “simply consistent[24] with the government’s legitimate interest in preserving the property for the use to which it is lawfully dedicated.” Id. (citation modified). Courts consider whether there are “alternative channels” of communication, which weigh in favor of a finding of reasonableness.[25] Id.

 

Here, the District has a strong interest in meaningfully receiving feedback and maintaining order at its meetings. See Ex. A ¶ 5 (providing that the Policy is “designed to ensure that the District has an opportunity to thoughtfully consider community feedback, questions, and concerns in advance of a meeting and facilitate the orderly functioning of the meeting”). Indeed, “many courts have recognized that preventing disruptive activity is a legitimate and common-sense government interest that can justify restrictions on speech in limited public fora.” Tyler, 74 F.4th at 64. Interested community members have the opportunity to submit written comments—and then the opportunity to speak at the meeting, once they comply with this requirement—which is an effective “alternative channel” for expressing their thoughts. The Second Circuit has expressly approved of such provisions:

Suppose [a governmental body] adopted rules permitting meeting attendees to contribute only by way of written remarks or requiring meeting attendees to limit their verbal remarks to a fixed amount of time. Such restrictions would limit the form or manner of speech, but plainly they would be upheld as reasonable in a limited public forum, and they would not be subject to strict scrutiny.

Id. at 63. Ms. Emmett had the opportunity to share her speech through a written comment (and then, at the meeting) and chose not to do so.

While the Policy requiring prior written comments does not apply to District employees, it is reasonable to treat these two groups of people (District employees vs. non-District employees) separately.[26] District employees may already have access to the information required to make a public comment, and employees are familiar with the requirements of District meetings. Courts have approved of such distinctions in similar cases. See, e.g., Mallett v. Town of Huntington, 799 F. Supp. 3d 117, 126 (E.D.N.Y. 2025) (holding that it was reasonable to restrict speakers to lawyers at a zoning board hearing so the meeting could proceed in “an orderly and effective fashion in light of these complicated legal issues and the legendary misinformation”) (citation modified).

Therefore, under established law, this Court should conclude that the District’s actions in accordance with its Policy were reasonable.

B. The District’s actions in accordance with its Policy were viewpoint neutral, because it drew no distinction based on perspective.

Second, the restrictions are also viewpoint neutral. Courts conclude that any restrictions on speech are viewpoint neutral when policies or practices “draw[] no distinction between groups based on their message or perspective.”[27] Christian Legal Soc’y Chapter of the Univ of. Cal., Hastings Coll. of the L. v. Martinez, 561 U.S. 661, 694 (2010). For a restriction to be viewpoint neutral, the government may not target “particular views taken by speakers on a subject.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).

Here, the District’s Policy, and its enforcement of its Policy at the March 13, 2024 meeting, provides a textbook example of a viewpoint-neutral restriction. The Policy requires non-District employees to submit a written comment prior to speaking at a meeting. The content of that comment is irrelevant. Indeed, as Ms. Emmett’s complaint admits, District employees and non-employees alike spoke both in support of and in opposition to the proposed curricular changes at the meeting. Compl. ¶ 26. The District’s Policy requiring a prior written comment before a non-District employee could speak at the meeting was enforced regardless of view on the proposed changes. Therefore, the District’s Policy and the implementation of this Policy at the March 13, 2024 meeting was viewpoint neutral.

 

CONCLUSION

For these reasons, the District respectfully requests that the Court grant its motion and dismiss Ms. Emmett’s complaint with prejudice.

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
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Date

 

 

 

Exercise 2-4

Sample Document 6

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

Lucy Emmett,
                           Plaintiff 25-cv-62
                   v.
SUNNYDALE UNIFIED SCHOOL DISTRICT,
                           Defendant

 

DECLARATION OF LUKE LAWSON, ESQ. IN SUPPORT OF
DEFENDANT’S MOTION TO DISMISS

 

I, Luke Lawson, an attorney admitted to practice in the United States District Court for the Southern District of New York, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746[28], as follows:

 

  1. This declaration and attached exhibit are submitted in support of defendant Sunnydale Unified School District’s (the “District”) motion to dismiss plaintiff Lucy Emmett’s complaint in the above-captioned matter.
  2. I am a partner in the law firm of Smith and Howe LLP, which represents the District in this matter; therefore, I am fully familiar with the facts of this case.
  3. The District has developed a policy on school-related meetings (the “Policy”), effective August 30, 2022.
  4. At all times relevant to this action, this Policy has been publicly available on the District’s website at [link] and accessible in paper form by request at the District’s offices.
  5. A copy of the Policy is attached to this declaration as Exhibit A.
  6. For the reasons set forth in the District’s motion to dismiss, the District respectfully requests that the Court grant its motion and dismiss the plaintiff’s complaint.

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

 

 

Sample Document 7

 

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

Lucy Emmett,
                           Plaintiff 25-cv-62
                   v.
SUNNYDALE UNIFIED SCHOOL DISTRICT,
                           Defendant

 

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO
MOTION TO DISMISS COMPLAINT

 

This case involves one of the most fundamental rights guaranteed by the United States Constitution: the right to free speech.[29] Due to a nonsensical policy that restricts the rights of parents and other interested parties from speaking freely about matters that affect their children, a parent was denied her right to address a critical issue concerning her child’s education. Because this restriction violated the parent’s constitutional rights, the Court should deny the motion to dismiss and allow this lawsuit to proceed for a full resolution of the important issues presented.

 

STATEMENT OF FACTS[30]

Beginning in fall 2023, defendant Sunnydale Unified School District (the “District”) publicized its efforts to cut student access to art and music programs throughout the District. Compl. ¶ 15. Many parents expressed concerns about these cuts at a series of meetings that the District held throughout the 2023-2024 school year. Id. ¶ 16. At these meetings, the District enforced its policy requiring parents and other caregivers to submit a written comment 24 hours or longer before a meeting (the “Policy”). Ex. A ¶ 3; Compl. ¶ 24. The Policy does not apply to teachers or other District employees. Ex. A ¶ 4.

Plaintiff Lucy Emmett is the mother of a child at Sunnydale Elementary and active in the school’s parent-teacher organization. Compl. ¶ 14. Ms. Emmett attended a meeting at the school on March 13, 2024 to share her concerns about the planned cuts to her child’s education. Id. ¶¶ 17, 20. However, she was not permitted to speak. Id. ¶ 24. Relying on the Policy that requires parents—but not teachers or other District employees—to submit written comments before a meeting in order to be able to speak at the meeting, District administrators refused to allow Ms. Emmett to share her concerns at the meeting. Id. Ms. Emmett then brought this action.

 

ARGUMENT

The[31] Federal Rules of Civil Procedure require only “a short and plain statement of the claim” in the complaint, demonstrating entitlement to relief. Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss under Rule 12(b)(6), a complaint must include “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Courts “must accept as true” all well-pled factual allegations in evaluating whether the plaintiff has shown “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678.

 

Here, the District’s restrictions on speaking at the meeting—on the basis of District employees versus non-employees—is a violation of Ms. Emmett’s constitutional rights. Courts have made clear that governmental bodies may not create and enforce such limits if these restrictions are not reasonable and are not viewpoint neutral.[32] Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, 127 F.3d 207, 211-12 (2d Cir. 1997). Because the District’s Policy is not reasonable and is not viewpoint neutral, this Court should deny the District’s motion to dismiss and allow this lawsuit to proceed.

 

A. The District’s Policy requiring advance submission of written comments is unreasonable, as it furthers no logical purpose and discriminates between groups of people.

In assessing the reasonableness of a restriction on speech, courts evaluate the “particular purpose and characteristics of the forum and the extent to which the restrictions on speech are reasonably related to maintaining the environment the government intended to create in that forum.” Tyler v. City of Kingston, 74 F.4th 57, 63 (2d Cir. 2023) (citation modified). While the government has a “legitimate interest in preserving the property for the use to which it is lawfully dedicated,” it must provide sufficient “alternative channels” of communication if restrictions are in place. Id. Importantly, “once [the government] allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre.” Tyler, 74 F.4th at 61 (citation modified).

Here, while the District has an interest in the orderly functioning of its meetings, there is simply no indication that the Policy at issue furthers this interest. Concerned community members are permitted to speak at meetings if they provide a written comment ahead of time. Community members could certainly cause a disruption at the meeting even if they submitted a written comment before the meeting. Requiring written comments is not a sufficient “alternative channel” of communication because people should be able to speak in the moment to respond to other comments made at the meeting.

Moreover, the Policy discriminates between District and non-District employees, which is unreasonable. Although the District relies on a recent case that approved of a distinction between concerned community members and attorneys, the rationale the court relied upon in that case is inapposite here.[33] See Mallett v. Town of Huntington, 799 F. Supp. 3d 117, 126 (E.D.N.Y. 2025). Mallett involved a zoning board hearing that featured “complicated legal issues” and a “novel issue of law.” Id. No such complicated, novel, or specialized issues exist here that would justify this distinction between District and non-District employees. Instead, parents, caregivers, and other concerned community members were deprived of their opportunity to adequately express their views on the proposed cuts to the District’s art and music programming. Thus, the restriction on speech is unreasonable.

 

B. The District’s refusal to allow Ms. Emmett to speak at the meeting was not viewpoint neutral, since the Policy discriminated against speakers on the basis of their employment status.

It is axiomatic that the government may not discriminate against speakers based on their views.[34] See, e.g., Christian Legal Soc’y Chapter of the Univ of. Cal., Hastings Coll. of the L. v. Martinez, 561 U.S. 661, 694 (2010); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995); City of Madison, Joint Sch. Dist. No. 8 v. Wisconsin Emp. Rels. Comm’n, 429 U.S. 167, 175-76 (1976). Yet that is precisely what the District has done here. Nearly 75 percent of the non-District employees who submitted written comments prior to the meeting at issue were opposed to the curricular cuts. Compl. ¶ 25. At the meeting itself, approximately half of the District employees who spoke—unencumbered by the prior written comment requirement—supported the cuts. Id. Given this discrepancy, the distinction between the two groups of people is functionally viewpoint based. At this early stage in the litigation, the Court should deny the motion to dismiss and permit discovery for further investigation of the District’s viewpoint-based distinction.[35]

 

CONCLUSION

Accordingly, Ms. Emmett respectfully requests that the Court deny the District’s motion and allow her to proceed with her First Amendment claim.

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

 

 

Coming Up Next

Once any motion to dismiss or motion for judgment on the pleadings has been denied, or if the plaintiff has successfully filed an amended complaint, and the pleadings are complete, the parties provide initial disclosures and undertake discovery. Discovery motions are the subject of the next chapter.

 

  1. For simplicity, this chapter will refer throughout to the defendant as the moving party. However, any party may move to dismiss a claim asserted against it, such as a counterclaim or crossclaim. ↵
  2. Note that Rule 12(c) governs motions for judgment on the pleadings, which would be filed after the pleadings have closed (so after the defendant files its answer) but usually still early in the litigation. ↵
  3. Throughout the brief, notice how the substantive argument (statement is protected opinion) is connected to the procedural relief requested (motion should be granted). ↵
  4. Because this is a motion to dismiss, the writer must tell the story from the facts provided in the complaint, which must be taken as true at this point in the litigation. Nevertheless, the writer works with these facts to tell the story from their client’s (the defendant’s) point of view. For more on framing facts persuasively, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 9 and 10 (CALI eLangdell Press 2023). ↵
  5. Throughout this section, the writer frames the procedural standard persuasively by describing the instances in which the motion should be granted and the complaint dismissed—the procedural outcome that the defendant seeks here. ↵
  6. Now that the procedural standard has been established, the writer makes clear which jurisdiction’s substantive law should be applied. ↵
  7. The writer is now getting into a description of the substantive law that underlies this legal question, persuasively framed. For more on writing rules persuasively, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 4 (CALI eLangdell Press 2023). ↵
  8. The writer here again connects the procedural and substantive questions. ↵
  9. The writer again connects the procedural and substantive standards here. ↵
  10. Here the writer uses analogical reasoning to support their argument. For more on writing analogies, see Nan Haynes, Legal Writing for Clinical Students, Ch. 2 (CALI eLangdell Press 2023). ↵
  11. This conclusion section again connects, for a final time, the substantive argument with the requested procedural relief. ↵
  12. Throughout the brief, notice how the substantive argument (statement is not protected opinion) is connected to the procedural relief requested (motion should be denied). ↵
  13. In this version of the facts, the story is told from the plaintiff’s perspective, working from the same facts as the defendant—those alleged in the complaint—but this time framed persuasively in favor of the plaintiff. Take a few minutes to reread the defendant’s version and notice the difference. For more on framing facts persuasively, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 9 and 10 (CALI eLangdell Press 2023). ↵
  14. Throughout this section, the writer emphasizes the minimal standard required at this early stage of the litigation. To use the procedural standard persuasively and thematically, the writer argues that the litigation should proceed to allow the plaintiff her day in court. While both the plaintiff and defendant are working from the same rules and case law in crafting these procedural standards, they are framed very differently as an important use of persuasive technique. ↵
  15. The writer explains the procedural rule in ways that are helpful to their client’s position. For more on writing rules persuasively, see Nan Haynes, Legal Writing for Clinical Students, Ch. 4 (CALI eLangdell Press 2023). ↵
  16. Notice that the parties addressed the factors in different orders in their briefs, based on which arguments are strongest. ↵
  17. The writer here reminds the reader of the applicable procedural standard. ↵
  18. In the conclusion section, we see a final connection between the substantive question and the procedural relief requested. ↵
  19. Notice how the writer frames the case at the outset in a favorable way for their client. Compare this brief statement to the opening portion of the plaintiff's brief to see the different story told there. ↵
  20. Although the defendant must rely on the facts as pled in the plaintiff's complaint (and the policy at issue in this case, which is a publicly available document), the writer uses persuasive techniques to tell the story in a compelling way. For more on framing facts persuasively, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 9 and 10 (CALI eLangdell Press 2023). ↵
  21. Throughout this section, the writer frames the procedural standard persuasively by describing the instances in which the motion should be granted and the complaint dismissed—the procedural outcome that the defendant seeks here. For more on writing rules persuasively, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 4 (CALI eLangdell Press 2023). ↵
  22. Notice how the framing of this rule is both positive (the government may do this) and broad (making it seem like these two criteria are not difficult to meet). ↵
  23. The writer here selectively uses emphasis to draw attention to these terms. ↵
  24. Notice how the writer tries to make these rules seem easy to satisfy, since that angle supports their argument. ↵
  25. The writer here frames the rule in a favorable direction. ↵
  26. The writer here explores the counter-analysis. Notice how the plaintiff's brief takes a very different approach to this issue. For more on writing rebuttals assertively, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 5 (CALI eLangdell Press 2023). ↵
  27. Again, these rules are framed in a positive light in the direction that the writer is urging the court to conclude. ↵
  28. Always check local rules to see what kinds of supporting documents you can or must file. In the Southern District of New York, declarations under penalty of perjury are an acceptable substitute for notarized affidavits. S.D.N.Y. Civ. R. 1.9. ↵
  29. Compare this opening section with the defendant's brief to see the different framing of this case. ↵
  30. Even though the parties are working from the same facts - those pled in the complaint - notice how the stories are framed differently (though both fairly). For example, the defendant's brief describes "curricular changes," while the plaintiff's brief focuses on "cuts" to certain programming. The plaintiff's brief also foregrounds negative reaction to the proposed cuts early in this section. For more on framing facts persuasively, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 9 and 10 (CALI eLangdell Press 2023). ↵
  31. Throughout this section, the writer emphasizes the minimal standard required at this early stage of the litigation. To use the procedural standard persuasively and thematically, the writer argues that the litigation should proceed to allow the plaintiff her day in court. While both the plaintiff and defendant are working from the same rules and case law in crafting these procedural standards, they are framed very differently as an important use of persuasive technique. ↵
  32. Notice how the framing of this rule is negative (focusing on what governmental bodies may not do), as opposed to the defendant's positive framing. For more on writing rules persuasively, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 4 (CALI eLangdell Press 2023). ↵
  33. The writer here explores the counter-analysis. Notice how the plaintiff's brief takes a very different approach to this issue. For more on writing rebuttals assertively, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 5 (CALI eLangdell Press 2023). ↵
  34. Notice how these rules are framed negatively--what the government may not do--to help further the writer's argument and desired outcome. ↵
  35. The writer here emphasizes the procedural posture of the legal question to persuade the court to allow further factual development before deciding the legal issue. ↵

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