While the first question most, if not all, New York litigators ask when evaluating a new complaint filed against their corporate clients is whether there is a viable motion to dismiss,  all too often that question focuses on the merits of the case. A motion to dismiss for failure to state a claim can result in complete dismissal of some cases and force plaintiffs to replead other claims, but it frequently requires the defense to spend a significant amount of money on attorneys’ fees for, at best, a dismissal without prejudice.

In today’s business climate with clients continuing to look for ways to minimize litigation costs, the reluctance to fund a low percentage pre-answer motion is increasing. If litigation remains inevitable, many corporate decision-makers prefer to pursue the less costly route of answering and focus on ways to defend the merits cost effectively.  Recent developments in jurisdictional jurisprudence warrant rethinking this approach.