You have been sued and your lawyer calls you to tell you the good news: The judge granted your request to dismiss the other’s side’s lawsuit or portions of it “with leave to amend.”
A motion to dismiss is an attempt to get rid of a lawsuit (or a part of it) right after it is filed. If it’s granted, the case can be over or a part of the lawsuit can be thrown out for good. Lots of defense lawyers like to file these motions if they can.
The idea behind “leave to amend” is pretty straightforward, but it may involve tricky strategic considerations when you have been sued.
“Leave to Amend” is a judge’s way of saying, “I’ll give you another chance.” In other words, when a motion to dismiss is granted or approved by the court with “leave to amend,” the result is mixed for both sides. The plaintiff has at a minimum been delayed, but he or she does get another chance to file the lawsuit.
Motions to Dismiss can be expensive when you are paying by the hour. They often cost $10,000 or more (depending on your lawyer’s hourly rate and the complexity of the issues involved). That’s why you and your lawyer need to carefully weigh the benefits relative to the risks that the court will give the the plaintiff another chance to file the lawsuit. Some lawsuits suffer from a technical defect. For example, the lawyer who filed the lawsuit forgot to include some allegation that is required by law. If it’s easy for the lawyer to cure the defect, it’s probably a waste of your time and money to pay for a motion to dismiss. The judge will likely grant the other side “leave to amend,” and you will just be paying your lawyer to help educate the other side’s lawyer how to make the lawsuit better for the person or entity that is suing you.
On the other hand, some lawsuits are big enough and some issues are important enough to risk having the judge give the other side another chance. Judges are often reluctant to throw out a lawsuit without giving the plaintiff’s lawyer at least one additional chance to fix any problems with the lawsuit. Thus, you should discuss with your lawyer the likelihood that you will have to pay to file more than one motion to dismiss (one to try to dismiss the lawsuit in its initial form, and then potentially another when the other side takes its second chance).
There is no hard and fast rule as whether you should take the risk that a motion to dismiss will be granted with “leave to amend.” Sometimes it’s a good risk to take and sometimes it isn’t. But a client can’t make a sensible strategic decision about this issue unless you know what “leave to amend” means and how it may impact your specific lawsuit.