Rule 91a: Your Brand New Hammer (No MC Included)
We previously discussed pre-suit discovery. Let’s see how that can be applied to your advantage once your case begins and you move to dismiss a baseless claim.
Dismissal of Baseless Causes of Action
New Texas Rule of Civil Procedure 91a provides that a party can move to dismiss a cause of action on the grounds that it has not basis in law or fact. A cause of action has no basis in law if the allegations taken as true, together with reasonable inferences drawn from them, do not entitle the claimant to the relief sought. Tex. R. Civ. P. 91a.1. A cause of action has not basis in fact if no reasonable person could believe the facts pleaded. Id.
The Applicable Standard
The applicable standard is what is stated above. What that means is that you do not need to dig into your 12(b)(6) bag for the applicable standard. In fact, caution should be taken against applying that standard at all. As well all know, Iqbal and Twombly apply there and the pleading standard in federal court is significantly different than notice pleading in Texas state courts.
As with all new tools, make sure you read the warning label. Here, that warning label states that a court must award attorneys’ fees and costs to the prevailing party on the challenged cause of action. Tex. R. Civ. P. 91a.7.
How You Can Use This to Your Advantage
So the plaintiff has plead negligence against your driver and negligent entrustment against an unidentified separate owner of the vehicle. From pre-suit discovery you know that there is no other owner of the vehicle, except the driver, and the plaintiff admitted such under pre-suit questioning, along with the fact that all witnesses point to her as the driver. Now is time to use a Rule 91a Motion to Dismiss to your advantage to not only knockout the baseless negligent entrustment cause of action, but to also inform the Court very early on that all witnesses point to the plaintiff as the driver. You will not be able to dismiss the plaintiff’s cause of action for negligence, but you will be able to inform the court that it should grant your upcoming motion for summary judgment on that issue.