Resolving Your
Case Prior to Trial:
Strategies for
Dispositive
Motions and
Settlement
Karla Grossenbacher, Seyfarth Shaw LLP
Chuck Gartland, AARP
Seyfarth Shaw LLP
“Seyfarth Shaw” refers to Seyfarth Shaw LLP (an Illinois limited liability partnership).
©2016 Seyfarth Shaw LLP. All rights reserved.
Karla Grossenbacher is a partner in Seyfarth Shaw’s
Washington, D.C. office. She is Chair of the
Washington D.C. labor and employment practice and
also heads the Firm’s National Workplace Privacy
Team.
Karla has extensive experience litigating employment
claims in state and federal courts across the country
and has an unparalleled track record at the Firm for
obtaining summary judgment in her cases.
•  [email protected]
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Chuck Gartland is Associate General Counsel for AARP, a
leading non-profit, non-partisan, social welfare organization
with nearly 38 million members. In his role as the
organization's senior employment and employee benefits
attorney, Chuck manages AARP's employment-related
litigation and administrative charge activity, and provides
strategic advice and counsel to AARP's leadership team
and HR professionals on a wide spectrum of employee
relations and benefits issues. Prior to joining AARP as inhouse counsel, Chuck was a partner in the Labor and
Employment Group of Alston & Bird LLP, serving as
outside employment counsel to corporate clients in a
variety of industries. Chuck earned his B.A. from Villanova
University (i.e., the 2016 NCAA Men's Basketball National
Champions), and his J.D. from the University of Virginia
School of Law.
•  [email protected]
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Methods for Resolving
Cases Prior to Trial
•  Motion to Dismiss
•  Motion for Judgment on Pleadings
•  Offer of Judgment
•  Motions for Summary Judgment
•  Settlement
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Some Statistics
•  Calendar Year 2015
•  Total of 272,886 cases of filed in U.S. District Courts
•  Only 1.1% went to trial (this includes ones that were resolved
during trial before a verdict)
** from Administrative Office of U.S. Courts statistics
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Some Statistics
•  For every hundred cases filed in the U.S. District
Courts, anywhere from 7-34 summary judgment
motions are filed
•  depends on nature of case (torts versus civil rights)
•  Most motions filed to narrow issues or dismiss parties
•  60% of summary judgment motions are granted over all
cases
•  70% of motions in employment cases are granted in whole or in
part
•  ** Federal Judicial Center 2007
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Some Statistics
•  Of almost 1800 motions to dismiss filed, 44% were
granted and 30% denied.
•  others were granted in part and denied in part and others were
denied as moot
•  These are pre-Twombly/Iqbal statistics
** Institute for the Advancement of the American Legal System, 2009
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Effect of Twombly and Iqbal
•  Old standard – Conley v. Gibson
•  A court could dismiss a complaint only if it “appear[ed] beyond
doubt that the plaintiff [could] prove no set of facts in support of
his claim which would entitle him to relief.”
•  New standard – Bell Atlantic v. Twombly
•  Plaintiffs must include in their complaints “enough factual matter”
to “nudge[] their claims across the line from conceivable to
plausible . . . .”
•  Begs the question how plausible a claim must be to
survive a motion dismiss
•  Ashcroft v. Iqbal – sliding scale approach, depending on
context, more facts may be required to amplify
conclusory allegations
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Motions To Dismiss – FRCP 12(b)
•  Filed in lieu of Answer
•  Well-plead factual allegations in the complaint must be
assumed as true for purposes of motion
•  Targets
•  High value claims
•  Claims that, if dismissed, will significantly narrow discovery
•  If Money Is No Object . . .
•  Non-frivoulous motions to dismiss can be used:
•  to send a message
•  create work for the other side
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Bases for 12(b) Motion
(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 FRCP 19
These defenses must be raised before filing
Answer (except Nos. 1, 6-7) or they are waived
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Judgment on the Pleadings – FRCP 12(c)
•  “After the pleadings are closed—but early enough not to
delay trial—a party may move for judgment on the
pleadings.”
•  Subject to same restrictions on considering evidence
outside of pleadings
•  Plaintiff cannot foil motion by amending complaint as of
a right.
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Judgment on the Pleadings – FRCP 12(c)
•  An additional mechanism for weeding out legally
insufficient claim
•  Usually appropriate where facts in complaint are not
disputed and only a legal issue remains (e.g., SOL or
application of statute
•  Can raise issues specifically preserved by 12(h)(2)
•  failure to state a claim
•  subject matter jurisdiction
•  failure to join a party under Rule 19(b)
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Rule 68 Offer of Judgment
•  Defendant may offer to have judgment entered against
it on specified terms, including costs, at least 14 days
before trial.
•  Plaintiff has 14 days to accept otherwise offer is
considered withdrawn
•  If Plaintiff does not accept the offer and does not obtain
a more favorable judgment than the one offered by
Defendant, Plaintiff must pay Defendant’s costs incurred
after the date the offer was made
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Summary Judgment – FRCP 56
•  Always move for summary judgment!
•  Key to winning – Everything you do in the case should
have as its goal getting summary judgment.
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Summary Judgment
•  Have outside counsel start early!
•  Legal research on claims done before deposition
•  Require deposition outline at least one week before deposition
•  Require draft of motion well in advance of deadline
•  Encourage outside counsel to use minimum number of exhibits
and affidavits
•  Agree on witnesses that need to be deposed or from whom
affidavits need to be obtained
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Settlement
Key Issues:
•  What is the benefit in this case of settling?
•  When to engage in discussions?
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Settlement – The Benefits
•  Avoid litigation costs
•  Avoid publicity
•  Avoid disruption to business
•  Avoid inconvenience or embarrassment to key
stakeholders
•  Avoid possibility of negative outcome and imposition of
liability
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When To Engage In Settlement Talks
•  At The Outset of the Case
• 
• 
• 
• 
Case is a loser
Can’t afford litigation
Huge PR issue if case is filed.
Corporate transaction or event
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When To Engage In Settlement Talks
•  After the Close of Discovery
•  Strong case but true believer on other side
•  Disputed issues of fact
•  Need to build case to get leverage
•  While Summary Judgment Is Pending
•  Use motion as leverage
•  But will have spent money on motion
•  How To Raise Topic of Settlement
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How To Settle Your Case
•  What method?
•  informal
•  both parties motivated to settle
•  decent relations among counsel
•  cheapest option
•  mediation
•  court sponsored versus private mediators
•  most expensive if private mediation
•  settlement conference with magistrate
•  recalcitrant plaintiff with bad case
•  it’s free – just fees related to preparation for and time in session
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Settlement – Managing Expectations
•  Litigation typically proceeds while settlement is being
discussed and pursued
•  formal ADR can be difficult to schedule
•  parties can drag feet on both sides coming up with counters
informal discussions
•  courts typically won’t grant stays pending settlement talks
•  Be clear about litigation budget over next 30-60-90 days
and how this could impact money offered in settlement
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Questions????
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