2.4.4 INCORPORATINGMOTIONSTANDARDS INTOYOURARGUMENT
Because motion standards of review are often not controversial, some writers think that they need not articulate the standard or that they may articulate it without citing authority for it.
On the contrary, the motion standard of review is the context in which your entire argument takes place, so you must both articulate the standard and cite to meaningful authority for it.51 If you are arguing in favor of a motion to dismiss, for example, your underlying reason for the request is the language of the standard of review: The court should grant the motion because the plaintiff has not pleaded a set of facts that plausibly give rise to an entitlement to relief. Your argument may focus on case facts and relevant statutes, but it all comes back to the requirements articulated in the motion standard of review.In most situations, you can briefly state the boilerplate language from the standard and cite to appropriate authority (whether the standard comes from a rule, from case law, or from both). With a motion to dismiss, this straightforward use of the standard would be appropriate when, for example, the plaintiff has alleged that the defendant has violated a statute, and the defendant argues that the statute does not apply to the situation. Thus, the focus of the argument would not be the factual question of whether particular facts plausibly exist or have been appropriately included in the complaint, but rather the legal question of whether the statutory language applies to a particular set of facts.
Even in this straightforward situation, however, you should still connect the standard of review to your argument. You may not see much connection between the standard of review for a motion to dismiss and the argument that, for example, supervisors cannot be held individually liable for sexual harassment under Title VII of the Civil Rights Act of 1964.
But if you think about it, you will realize that the reason the plaintiff’s complaint does not plausibly give rise to an entitlement to relief is that Title VII does not allow supervisors to be held individually liable. Thus, even if the facts seem to “plausibly” describe a Title VII violation, the allegations do not plausibly give rise to relief from that supervisor under Title VII.You can make the standard of review connection explicit in at least two places: in the roadmap or umbrella paragraphs in which you first articulate the standard, and in your conclusion. Your conclusion will be less effective if you say simply, e.g., “Because supervisors cannot be held individually liable under Title VII, this court should grant Defendant Lamb’s motion to dismiss.” Instead, you can explicitly connect the standard of review to your argument by saying, “Title VII does not impose individual liability on supervisors. Therefore, plaintiff has not alleged a set of facts that plausibly give rise to an entitlement to relief against Defendant Lamb under Title VII, and this court should grant the motion to dismiss.”
In the alternative, you may face a situation that allows or requires you to present more in-depth arguments on the application of the motion standard of review. You may wish to argue that the complaint should be dismissed because the facts in the complaint raise a “possibility” of relief rather than a “plausible” “entitlement to relief.” In a motion for summary judgment, you may wish to note that the plaintiff has the burden of proof as to the cause of action and argue that it should bring forth evidence in support of one or more of the complaint’s allegations. If you are arguing against a motion for summary judgment on an issue for which the moving party had the burden of proof, you may argue that your opponent has not brought forth sufficient evidence. Thus, you may need to expand your standard of review discussion by quoting and citing language from court decisions that explain when the requirements for the motion standard of review have been met, and you might expect to feature language from the standard in your headings.
For example, you might have a heading that says “plaintiff’s allegations as to X do not meet the plausibility standard.”In the situations noted above — just as with the clearly erroneous and the abuse of discretion appellate standards — the standard will enter into your argument more directly. If you are arguing that the complaint contains only a “formulaic recitation” of the legal conclusions without sufficient facts and that it should therefore be dismissed, the reader will expect you to quote and cite the relevant portions of the complaint, and to cite and discuss appropriate authority to explain why the allegations are insufficient. If the burden of proof issue is significant to your summary judgment motion, you must discuss the specific burden(s) of proof for the relevant cause(s) of action, citing and discussing authority as appropriate. You may wish, for example, to frame your argument by stating that your opponent has “failed to present substantial evidence that would support a favorable verdict by a reasonable jury,”52and then explain why the evidence is insufficient, using relevant authority as appropriate.
As these examples show, a motion standard of review can be just as significant as an appellate standard of review. Whenever you file a motion that requires a brief, be sure that you understand the appropriate motion standard of review. Although you may often start your research in the court rules that govern the motion, be sure to go beyond that boilerplate to determine how your jurisdiction uses and applies that standard. Be sure to tie your legal argument to the standard in some way, even if the standard is not controversial. When either the standard or how it applies is controversial, however, the motion standard of review becomes an important legal rule that governs your case, and it should be analyzed, explained, and applied as thoroughly as any other important legal rule.