Don’t get me wrong. Pre-answer motions to dismiss are a staple of all kinds of litigation including business disputes. It’s just that, in my experience, as compared to more pedestrian matters such as contract disputes based on nonpayment or delivery of defective goods, the open-endedness of the standard for judicial dissolution of LLCs gives the non-petitioning member greater room and incentive to argue that the petition does not adequately allege grounds for relief and therefore should be dismissed out of the gate.
The member seeking dissolution and his or her counsel have choices to make that can affect the odds of surviving an early dismissal motion:
- File for dissolution by summons and complaint in a plenary action, or by petition in a special proceeding?
- If utilizing a special proceeding, commence it by order to show cause or by notice of petition?
- Whether using a complaint or petition, allege the bare minimum facts or lay out detailed testimonial and documentary evidence as if it were a summary judgment motion?