Motions to Dismiss for Failure to State a Claim: Sanctions if Granted

Usually a motion to dismiss under Rule of Civil Procedure 12.02(6) doesn’t scare a plaintiff’s lawyer. Surely the complaint states a claim upon which relief can be granted. But for claims filed on or after July 1, such a motion should rivet attention. Public Chapter 1046 amends Tenn. Code Ann. §20-12-119 with a lengthy subsection (c) that allows a successful defendant to collect far more than traditional court costs, the subject of subsections (a) and (b).

If defendant’s motion is granted and if the ruling is not reversed on appeal, here are the monetary sanctions that will rain down on the plaintiff: court costs, attorney fees, court reporter fees, interpreter fees and guardian ad litem fees. The total can run as high as $10,000.

There are a half dozen exceptions  important enough to quote. The new subsection (c) does not apply to:

(A) Actions by or against the state, other governmental entities, or public officials acting in their official capacity or under color of law.

(B) Any claim that is dismissed by the granting of a motion to dismiss that was filed more than 60 days after the moving party received service of the latest complaint, counter-complaint or cross-complaint in which that dismissed claim was made.

(C) Any claim that the party against whom the motion to dismiss was filed withdrew, or in good faith amended to state a claim upon which relief may be granted; however, this subdivision (C) shall not apply unless a pleading providing notice of the withdrawal or amendment was filed with the court and delivered to the opposing party or parties at least three days before the date set for the hearing of the motion to dismiss or by the deadline for the filing of a response to the motion to dismiss, whichever is earlier. Nothing in this section shall be construed to prevent a party from striking its own motion to dismiss.

(D) Actions by pro se litigants, except where the court also finds that the pro se party acted unreasonably in bringing, or refusing to voluntarily withdraw, the dismissed claim.

(E) Any claim that is a good faith non-frivolous claim filed for the express purpose of extending, modifying or reversing existing precedent, law or regulation, or for the express purpose of establishing the meaning, lawfulness or constitutionality of a law, regulation or United States or Tennessee constitutional right where the meaning, lawfulness or constitutionality is a matter of first impression that has not been established by precedent in a published opinion…. This subdivision (E) shall not apply unless at the time the successful motion to dismiss was filed the party that made the dismissed claim had specially pleaded in its latest complaint, counter-complaint or cross-complaint that the dismissed claim was made for one of the express purposes listed above and cited the contrary precedent or interpretation the party seeks to distinguish or overcome, or whether the issue to be decided is a matter of first impression as described in this subdivision (E).

(F) Any claim for which relief could be granted under a law, a court precedent … or a regulation that was in effect and applicable to the claim at the time the motion to dismiss was filed, where that law, precedent or regulation was cited in the pleading in which the dismissed claim was made or in the response to the motion to dismiss and where the motion to dismiss the claim was granted due to the subsequent repeal, amendment, overruling or distinguishing of that law, regulation or published court precedent.

Is this law constitutional? An argument can be made that it violates separation of powers as construed in State v. Mallard, 40 S.W.3d 473 (Tenn. 2001). Civil Rule 11 contains the Supreme Court’s jurisprudence on sanctions for improper motions and pleadings. The General Assembly’s intrusion into this judicial domain is suspect.


Don Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, and the Tennessee Judicial Conference.